text:
Minturn v. United States

''Wm. M. Evarts, C. F. Southmayd, and Jos. H. Choate'', for plaintiffs in error.

Asst. Atty. Gen. Maury, for defendant in error.

BLATCHFORD, J.

title: Minturn v. United States


text: Talk:Minturn v. United States

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

title: Talk:Minturn v. United States


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

On August 2, 1865, the firm of Grinnell, Minturn & Co., being the owners of 580 packages of sugar, imported from abroad, entered them at the custom-house in New York by a warehouse entry, and thereupon the members of that firm, as principals, and one Clark, as surety, executed under their hands and seals and delivered to the collector a warehouse bond, conditioned that the bond should be void if the principals, 'or either of them, their or either of their heirs, executors, administrators, or assigns,' should, 'on or before the expiration of one year from the date of the importation' of the said goods, withdraw them, 'in the mode prescribed by law, from the public store or bonded warehouse' where they might be deposited at the port of New York, and pay to the collector for that port $23,787.99, 'or the true amount, when ascertained, of the duties imposed,' by laws then existing, or thereafter to be enacted, upon the said goods, etc. On the giving of the bond the sugars were placed in the public store and in the custody of the collector, as provided by the warehousing statutes. On August 8, 1865, the owners sold to Gibson, Early & Co. all the sugars, the same being still in warehouse, and held by the collector for duties, under said statutes. By the terms of the sale the goods were sold expressly subject to the payment of all duties thereon by Gibson, Early & Co., who assumed the payment of the duties as part of the agreed price of the goods on the sale, the price, less the duties so assumed, being paid in cash on delivery. The sellers made delivery of the goods in bond, subject to the duties, by writing and signing, on August 9, 1865, at the foot of the warehouse entry, the following consent: 'We hereby authorize Gibson, Early & Co. to withdraw the sugars described in this entry. GRINNELL, MINTURN & CO.'

It was not the custom to give any formal notice to the collector or any other officer of the customs of such sales in bond, nor was any such notice given in this case. The authority to withdraw, in the form above stated, would be and was presented to the collector in due course before the withdrawal could be made by the purchaser. The total weight of the sugars, as returned by the government weighers, was 755,621 pounds, upon which the proper duty, at three cents per pound, was liquidated at $22,668.63. On August 11, 1865, Gibson, Early & Co. withdrew for transportation to Cincinnati, under the said authority from Grinnell, Minturn & Co., 325,011 pounds of the sugar, and paid $9,750.33 duties thereon. On August 29, 1865, they withdrew for consumption, in like manner, 48,618 pounds, and paid $2,058.42 duties thereon.

Afterwards, and before September 4, 1865, they sold to one Camp the residue of the sugars, the same being then in warehouse, and being, by the terms of the sale, sold in bond, expressly subject to the payment of all duties thereon by Camp, who assumed the payment of said duties as part of the agreed price of the goods on the sale. A firm of custom-house brokers, Wylie & Wade, was employed by Camp to withdraw the sugars and to pay the duties thereon, and for that purpose was furnished by Camp with the amount of the duties, $10,859.88, in gold. On September 4, 1865, Gibson, Early & Co. made delivery to Camp of the residue of the sugars in bond, by writing and signing at the foot of the withdrawal entry made thereof by his said brokers, the following consent: 'We authorize Wylie & Wade to withdraw the goods described in this entry. GIBSON, EARLY & Co.'

No formal notice of this sale to Camp was given to the collector or any other officer of the customs. This last authority to withdraw was presented in due course by said brokers when they desired to withdraw the goods. This was done on September 4, 1865, when they made a withdrawal entry of the residue of the sugars, the weight of which was 361,996 pounds. The duty at three cents per pound was $10,859.88. But the collector demanded as duties only $9,352.89, being at the rate of three cents per pound on 311,763 pounds, leaving due as duties, $1,506.99. The goods were delivered to the brokers, and were of greater value than the duties chargeable on them. This was done without the knowledge or consent of Grinnell, Minturn & Co. The first knowledge or notice they had of the withdrawal without the payment of full duties was a notice from the collector, December 6, 1867, as to the amount so remaining unpaid. Before that time the brokers had become insolvent, and Gibson, Early & Co. became insolvent before the trial of this suit. The United States having brought suit on the bond against the obligors in it, to recover the $1,506.99, with interest, a jury was duly waived, and the court, having found the foregoing facts, found the following conclusions of law:

(1) That the facts constituted no bar to a recovery; (2) that     if the defendants were to be regarded as sureties, after the      transfer of the title to the property in bond, instead of      principals, they stood in no better position; (3) that the      laches of the custom-house officers, in delivering the goods      without collecting the whole of the duties, could not affect      the plaintiffs, as the United States were never bound by the      laches of their agents, nor could the defendants set up such      laches as a discharge of their obligation; (4) that the      plaintiffs were entitled to judgment.

The defendants excepted to each of said conclusions of law, a judgment was rendered for the plaintiffs for $3,096.11, and the defendants brought this writ of error.

The court belowalso found, as facts,--

'That it was the established and uniform usage of trade in     New York, at the times of said sales and deliveries and long      before, for importers to make sales of imported goods, which      were in warehouse, in bond, the purchaser on such sales      assuming the payment of the duties thereon, and being allowed      and credited by the seller with the amount of the duties so      assumed, as so much paid on account of or deducted from what      would otherwise have been the purchase price, and for the      seller to make delivery of said goods in bond, by signing a      written consent to the withdrawal of said goods by the      purchaser, and it was also in accordance with such usage and      custom for successive sales and deliveries of goods in bond      to be made, on similar terms and in the same manner, so long      as any of such goods remained in warehouse, the last      purchaser withdrawing the goods under the written consent so      received by him upon and as the delivery thereof, and paying the duties thereon on such withdrawal; that the said custom      and usage were, at the times aforesaid, well known and      understood, and the established and settled practice at the      custom-house in New York was to treat the party holding such      consent, for withdrawal, and him only, as the person entitled      to withdraw and receive the goods on payment of the duties,      and, upon the payment by him of the duties remaining due      thereon, and not otherwise, to issue a written permit for the      actual delivery to him of said goods out of warehouse; and      that, during the period covered by the transactions      hereinbefore set forth, the following regulations of the      treasury department were in force, to-wit: 'Article 442. The     entry for withdrawal of merchandise from warehouse for      consumption, at port of original importation, shall be made      by the party in whose name the merchandise was warehoused, or      by some person duly authorized for the purpose pose by him,      and in either case shall be signed by the party making the      withdrawal. This entry shall exhibit the marks and numbers of     the packages, the description and quality of the goods, and      the dutiable value of the same. On presentation to the proper     officer in the collector's office, it shall be compared with      the record, on the warehouse books, of the original warehouse      entry, and, if found correct, be properly entered therein,      the warehouse bond number indorsed thereon, and the amount of      duties payable estimated. From the collector's office it     shall then be taken by the importer to the naval office,      where a similar comparison shall be made with the warehouse      records of that office, and the estimate of duties verified      and indorsed upon the duplicate entry. The amount of duties     thus ascertained having been paid, a permit will be issued      for the delivery of the goods. Article 443. Merchandise in     bulk, liquors, sugars, molasses, cocoa, pepper, and other      articles bought and sold by weight, when withdrawn for export      or transportation, must be entered for such destination at      the actual quantities on which duties were estimated at the      time of arrival in the United States, and, to secure this,      weighers, measurers, and gaugers will be required to mark on      each package its contents, as determined by them on its entry      for warehouse. On these quantities the duties on export and     transportation entries will be estimated. Goods withdrawn for consumption may be taken at average valuations, care being     had that on the last withdrawal the entire balance of duty be      collected. Article 444. Should the final withdrawal entry be     for export or transportation, and there be any difference      between the actual duty and the amount to close the sum due      on the warehouse entry, the excess, if any, shall be refunded      on the last withdrawal for consumption, and the deficiency,      if any, collected on amendment to said entry."

The contention for the plaintiffs in error is that by the substitution for a credit system, in the payment of duties, of a deposit of the goods in warehouse, subject to a withdrawal for consumption only on the payment of duties, involving the holding by the United States of possession of the goods in the mean time, such possession became the primary security for the duties, and the obligors in the bond were thereafter merely sureties, and were wholly released because the officers of the United States parted with the possession of the goods without exacting payment of the duties.

The warehouse act of August 6, 1846, (9 St. at Large, p. 53, § 1,) amendatory of section 12 of the act of August 30, 1842, (5 St. at Large, 561,) provides that, on an entry of goods for warehousing, the goods shall be taken possession of by the collector, and deposited in the public stores, there to be kept subject at all times to the order of the owner, importer, consignee, or agent, 'upon payment of the proper duties and expenses, to be ascertained on due entry thereof for warehousing, and to be secured by a bond of the owner, importer, or consignee, with surety or sureties to the satisfaction of the collector, in double the amount of said duties, and in such form as the secretary of the treasury shall prescribe.' It is contended by the plaintiffs in error that a private creditor, standing in the same relation to them and to the goods which the United States occupied under the warehousing system as provided for by the statute and as practically administered, could not have voluntarily surrendered the goods which had been placed in his hands as security for the payment of the debt, and which were available for that purpose, without requiring payment of the debt, otherwise than with the consent of the plaintiffs in error, without discharging them from their liability; that the United States are entitled to no other or higher right than a private creditor would be entitled to in the same case; and that the consent of the importers to the withdrawal of the goods by Gibson, Early & Co. was not a consent unconditionally to their delivery, or to their delivery without the payment of duties, but only to their withdrawal from warehouse in the manner and upon the terms and conditions prescribed by law and by the treasury regulations and by usage, namely, after all duties thereon had been first paid, and not otherwise.

The warehousing statute, above cited, provides that warehoused goods shall be subject to the order of their owner on payment of the duties. Therefore, no order of the plaintiffs in error could become operative to affect any rights of the United States, unless the duties on the goods to be affected by the order were paid. Moreover, the provision as to the deposit of the goods, and their retention till the duties on them are paid, is coupled with the provision for the securing of the duties by the bond. Evidently, the intention of the statute was to superadd to the security of the holding of the goods the security of the bond, so that, in case of a delivery of the goods by fraud, or mistake, or negligence in the officers of the government, the security of the bond should remain. The form of the bond taken was such, that while, in connection with the regulations and the usage, commerce was favored by the privilege of dealing in warehoused goods, it was clearly intended to hold the obligors responsible if any purchaser from the importers should obtain the goods on their order without paying full duties. The condition is, that the bond shall be void if they or their 'assigns' shall withdraw the goods and pay the 'true amount' of duties. The bond is not to become void on any other condition, and it is not to become void, unless in addition to the withdrawal of the goods, the true amount of duties is paid. This view shows that the parties have contracted to be and remain principal debtors to the United States until the true amount of duties is paid, whatever fraud or negligence there may be in parting with the possession of the goods without the payment of the true amount of duties. There was no power in any officer of the government to alter the terms or effect of this contract, and destroy the obligation of the bond, by giving up the goods without the payment of the duties. The same statute required the holding of the goods and the taking of the bond. The cases in which it has been held that the United States had parted with rights, by reason of acts done to the prejudice of persons who had contracted with them, have all been cases where there was authority of law to do such acts.

In U.S. v. Adm'rs of Hillegas, 3 Wash. C. C. 75, it was held, by Mr. Justice WASHINGTON, that acts of the United States acting within their proper spheres, and to be imputed to the United States and considered as the acts of the United States, in extending the time for the payment of the debt due from a principal in a bond, discharged the sureties in the same bond, they not having known of or consented to the extension. The same principle was applied by Mr. Justice THOMPSON, in U.S. v. Tillotson, 1 Paine, 306, to the case of the alteration of a contract by the United States without the consent of the sureties for its performance. But, in the present case, the giving up of the goods without the payment of the duties was an act not only not unauthorized, but forbidden by the statute.

The question presented by this case is not a new one in the court. In Hart v. U.S. 95 U.S. 316, in a suit brought by the United States against the principal and sureties on a distiller's bond, to recover taxes on spirits distilled by the principal, the sureties pleaded that the taxes were a lien on the spirits, and that the collector, without the knowledge or assent of the sureties, and without first requiring the payment of the taxes thereon, permitted the principal to remove from the distillery warehouse distilled spirits more than sufficient in value to pay the demand. This court held that, as under the statute, no distilled spirits could be removed from the warehouse before payment of the tax, and no officer of the United States had authority to dispense with the requirement of the law, the United States were not bound by the acts of the collector; and the prior cases of U.S. v. Kirkpatrick, 9 Wheat. 720; U.S. v. Van Zandt, 11 Wheat. 184; U.S. v. Nicholl, 12 Wheat. 505; Gibbons v. U.S. 8 Wall. 269; and Jones v. U.S. 18 Wall. 662, were cited as establishing that the government is not responsible for the laches or the wrongful acts of its officers; and it was said by the chief justice delivering the opinion of the court:

'Here the surety was aware of the lien which the law gave as     security for the payment of the tax. He also knew that, in     order to retain this lien, the government must rely upon the      diligence and honesty of its agents. If they performed their     duties and preserved the security it inured to his benefit as      well as that of the government; but if, by neglect or      misconduct, they lost it, the government did not come under      obligations to make good the loss to him, or, what is the      same thing, release him pro tanto from the obligation of his      bond. As between himself and the government he took the risk     of the effect of official negligence upon the security which      the law provided for his protection against loss by reason of      the liability he assumed.'

These views are conclusive to show that the importers as well as their surety are liable on the bond in this case. If the importers could be regarded as having always been, or as having at any time become, sureties only in respect of the duties, with the goods as the primary security, (a position shown to be wholly untenable,) it is well settled by the decisions of this court that the negligence of the officers of the government does not affect the liability of a surety in a bond any more than it does that of his principal. U.S. v. Kirkpatrick, 9 Wheat. 720; U.S. v. Van Zandt, 11 Wheat. 184; Dox v. P. M. General, 1 Pet. 318.

The judgment of the circuit court is affirmed.


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


text:
Dodge v. Freedman's Savings Trust Company

[Syllabus from page 445 intentionally omitted]

[Statement of Case on pages 445-446 intentionally omitted]

John D. McPherson and Randall Hagner, for appellant.

Enoch Totten and ''Wm. a. McKenney'', for appellee.

WAITE, C. J.


text: Talk:Dodge v. Freedman's Savings Trust Company


text:
Dodge v. Freedman's Savings Trust Company/Opinion of the Court

Section 808 of the Revised Statutes relating to the District of Columbia is as follows:

'Section 808. The proceeding to enforce any lien shall be by     bill or petition in equity, and the decree, besides      subjecting the thing upon which the lien has attached to the      satisfaction of the plaintiff's demand against the defendant,      shall adjudge that the plaintiff recover his demand against      the defendant and that he may have execution thereof as at      law.'

This statute applies to suits for the foreclosure of deeds of trust in the nature of mortgages to secure the payment of money, and authorizes a decree in favor of the plaintiff against the debtor defendant for the payment of the balance of the debt that may remain due after the application thereto of the proceeds of the sale of the trust property, and an order for execution thereof as at law. This is such a decree in such a suit and it is consequently affirmed.


text: Talk:Dodge v. Freedman's Savings Trust Company/Opinion of the Court


text:
Steel v. St. Louis Smelting and Refining

T. A. Green, for plaintiffs in error.

A. T. Britton, J. H. McGowan, and Walter H. Smith, for defendant in error.

FIELD, J.


text: Talk:Steel v. St. Louis Smelting and Refining


text:
Steel v. St. Louis Smelting and Refining/Opinion of the Court

This was an action by the St. Louis Smelting & Refining Company, a corporation created under the laws of Missouri, against Steel and others, to recover the possession of certain real property in the city of Leadville, Colorado. It was commenced in one of the courts of the state, and on motion of the defendants was removed to the circuit court of the United States. The complaint is in the usual form in actions for the recovery of land, according to the practice prevailing in Colorado. It alleges that the plaintiff was duly incorporated, with power to purchase and hold real estate; that it is the owner in fee and entitled to the possession of the premises mentioned, which are described, and that the defendants wrongfully withhold them from the plaintiff to its damage of $1,000. The plaintiff, therefore, prays judgment for the possession of the premises and for the damages mentioned. The defendants filed an answer to the complaint, which appears to have been amended several times, the questions presented for our consideration having arisen upon the demurrer to the third amended answer. That answer denied the material allegations of the complaint and set up several special defenses, and a counter-claim for the value of the improvements put on the premises. The plaintiff demurred to these defenses and to the counter-claim. The demurrer was sustained to the defenses and overruled to the counter-claim. The defendants elected to stand on their defenses, and final judgment was accordingly entered on the demurrer for the plaintiff for the possession of the premises. To review this judgment the case is brought by the defendants to this court. The amended answer averred that the defendants were the owners of the land in controversy 'by superiority of possessory title and priority of actual possession' of the premises as part of a town-site on the public domain of the United States, located and occupied since June, 1860; that the title of the plaintiff was derived from one Thomas Starr, to whom a patent was issued by the United States, bearing date on the twenty-ninth of March, 1879, embracing the premises in controversy; and the special defenses set up were that the patent was void; that fraud, bribery, perjury, and subornation of perjury were used to obtain it; and that Starr, the patentee, was estopped by his conduct from asserting title to the premises. The patent, which is subsequently stated to be a mineral patent, by which is meant that it was issued upon a claim for mineral land, is averred to be void on these grounds: that the * land which it embraces was part of the town-site of Leadville when the claim originated, and was thus reserved from sale by the laws of congress; that the land included in the town-site was neither mineral nor agricultural; and that the patentee, Starr, was not a citizen of the United States and had not declared his intention to become one when the patent was issued. These grounds are accompanied with a detail of the facts upon which they are founded, but they are sufficiently stated for the disposition of the questions arising upon them.

Land embraced within a town-site on the public domain, when unoccupied, is not exempt from location and sale for mining purposes; its exemption is only from settlement and sale under the pre-emption laws of the United States. Some of the most valuable mines in the country are within the limits of incorporated cities, which have grown up on what was, on its first settlement, part of the public domain; and many of such mines were located and patented after a regular municipal government had been established. Such is the case with some of the famous mines of Virginia City, in Nevada. Indeed, the discovery of a rich mine in any quarter is usually followed by a large settlement in its immediate neighborhood, and the consequent organization of some form of local government for the protection of its members. Exploration in the vicinity for other mines is pushed in such case by new-comers with vigor, and is often rewarded with the discovery of valuable claims. To such claims, thougs within the limits of what may be termed the site of the settlement or new town, the miner acquires as good a right as though his discovery was in a wilderness, removed from all settlements, and he is equally entitled to a patent for them. It is the policy of the country to encourage the development of its mineral resources. The act of July 26, 1866, declared that all mineral deposits on lands belonging to the United States were free and open to exploration, and the lands in which they are found to occupation and purchase by citizens of the United States and those who had declared their intention to become such, subject to regulations prescribed by law, and to the rules and customs of miners in their several mining districts, so far as the same were applicable and not inconsistent with the laws of the United States. This declaration of the freedom of mining lands to exploration and occupation was repeated in the act of congress of May 10, 1872, and is contained in the Revised Statutes. Section 2319. Both acts provided for the acquisition of title, by patent, to mineral lands-the first act, to such as constituted lode claims; the second, to such as constituted placer claims.

The acts of congress relating to town-sites recognize the possession of mining claims within their limits, and forbid the acquisition of any mine of gold, silver, cinnabar, or copper within them under proceedings by which title to other lands there situated is secured, thus leaving the mineral deposits within town-sites open to exploration, and the land in which they are found to occupation and purchase, in the same manner as such deposits are elsewhere explored and possessed, and the lands containing them are acquired. Rev. St. §§ 2386, 2392.

Whenever, therefore, mines are found in lands belonging to the United States, whether within or without town-sites, they may be claimed and worked, provided existing rights of others, from prior occupation, are not interfered with. Whether there are rights thus interfered with, which should preclude the location of the miner and the issue of a patent to him or his successor in interest, is, when not subjected under the law of congress to the local tribunals, a matter properly cognizable by the land department, when application is made to it for a patent; and the inquiry thus presented must necessarily involve a consideration of the character of the land to which title is sought, whether it be mineral, for which a patent may issue, or agricultural, for which a patent should be withheld, and also as to the citizenship of the applicant.

We have so often had occasion to speak of the land department, the object of its creation and the powers it possesses in the alienation by patent of portions of the public lands, that it creates an unpleasant surprise to find that counsel, in discussing the effect to be given to the action of that department, overlook our decisions on the subject. That department, as we have repeatedly said, was established to supervise the various proceedings whereby a conveyance of the title from the United States to portions of the public domain is obtained, and to see that the requirements of different acts of congress are fully complied with. Necessarily, therefore, it must consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale. Its judgment upon these matters is that of a special tribunal and is unassailable except by direct proceedings for its annulment or limitation. Such has been the uniform language of this court in repeated decisions.

In Johnson v. Towsley the effect of the action of that department was the subject of special consideration. And the court applied the general doctrine 'that when the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others,' and said, speaking by Mr. Justice MILLER, 'that the action of the land-office in issuing a patent for any of the public land, subject to sale by pre-emption or otherwise, is conclusive of the legal title, must be admitted under the principle above stated; and in all courts, and in all forms of judicial proceedings, where this title must control, either by reason of the limited powers of the court, or the essential character of the proceeding, no inquiry can be permitted into the circumstance under which it was obtained.' 13 Wall. 83, 84.

In French v. Fyan a patent had been issued to the state of Missouri for swamp and overflowed land, under the act of September 28, 1850. In an action of ejectment by a party claiming title under a grant to a railroad company, which would have carried the title if the land were not swamp and overflowed, parol testimony was offered to prove that it was not land of that character, and thus to impeach the validity of the patent. The court below held that the patent concluded the question and rejected the testimony. The case being brought here the ruling was sustained. This court, speaking through Mr. Justice MILLER, said:

'We are of opinion that, in this action at law, it would be a     departure from sound principle, and contrary to      well-considered judgments in this court, and in others of      high authority, to permit the validity of the patent to the state to be subjected to the test of the verdict of a      jury on such oral testimony as might be brought before it. It     would be submitting the jury, or the court sitting as a jury,      for the tribunal which congress had provided to determine the      question, and would be making a patent of the United States a      cheap and unstable reliance as a title for lands which it      purported to convey.' 93 U.S. 172.

In Quinby v. Conlan, decided at the last term, we said:

'It would lead to endless litigation, and be fruitful of     evil, if a supervisory power were vested in the courts over      the action of the numerous officers of the land department,      on mere questions of fact presented for their determination. It is only when those officers have misconstrued the law     applicable to the case, as established before the department,      and thus have denied to parties rights which, upon a correct      construction, would have been conceded to them, or where      misrepresentations and fraud have been practiced necessarily      affecting their judgment, that the courts can, in a proper      proceeding, interfere and refuse to give effect to their      action. On this subject we have repeatedly, and with     emphasis, expressed our opinion, and the matter should be      deemed settled.' 104 U.S. 426. See, also, Vance v. Burbank,     101 U.S. 514.

It is among the elementary principles of the law that in actions of ejectment the legal title must prevail. The patent of the United States passes that title. Whoever holds it must recover against those who have only unrealized hopes to obtain it, or claims which it is the exclusive province of a court of equity to enforce. However great these may be they constitute no defense in an action at law based upon the patent. That instrument must first be got out of the way, or its enforcement enjoined, before others having mere equitable rights can gain or hold possession of the lands it covers. This is so well established, so completely imbedded in the law of ejectment, that no one ought to be misled by any argument to the contrary.

It need hardly be said that we are here speaking of a patent issued in a case where the land department had jurisdiction to act, the lands forming part of the public domain, and the law having provided for their sale. If they never were the property of the United States, or if no legislation authorized their sale, or if they had been previously disposed of or reserved from sale, the patent would be inoperative to pass the title, and objection to it could be taken on these grounds at any time and in any form of action. In that respect the patent would be like the deed of an individual, which would be inoperative if he never owned the property, or had previously conveyed it, or had dedicated it to uses which precluded its sale. And, of course, in both cases it is always open to show that the instrument was never executed by the parties whose signatures are attached to it, but is a simulated document. Where ejectment is founded upon either of these instruments,-the patent of the government or the deed of an individual,-the question being which of the parties has the legal title, it is irrelevant to introduce evidence to show that one of them ought to have had it, and might be able to get it, by a proceeding in some other tribunal or in some other form of action.

As to the allegations that fraud, bribery, perjury, and subornation of perjury, were used to obtain the patent to Starr, only a few words need be said. The bribery and subornation of perjury are alleged to have been committed by him in inducing parties to make false affidavits respecting the claim patented to be laid before the land department; and the perjury alleged consisted in his own affidavit as to his citizenship, the possession and working, by himself or grantors, of the claim for which the patent was issued, and the absence of a town-site, embracing the land, and of improvements thereon. The fraud alleged is not a specific charge by itself, but is made in connection with the affidavit of the patentee and his procurement of the false affidavits of others. The charges amount to this: that false and perjured testimony was used to influence the officers of the land department. There is no allegation of improper conduct on the part of those officers. The answer to this ground of defense is that it is not admissible in an action at law. The validity of a patent of the government cannot be assailed collaterally because false and perjured testimony may have been used to secure it, any more than a judgment of a court of justice can be assailed collaterally on like ground. If a judgment has been obtained by such means, the remedy of the aggrieved party is to apply for a new trial, or take an appeal to a higher court; and if the testimony was accompanied with acts which prevented him from presenting to the court the merits of his case, or by which the jurisdiction of the court was imposed upon, he may also institute some direct proceeding to reach the judgment. U.S. v. Flint, 4 Sawy. 42; U.S. v. Throckmorton, 95 U.S. 61; Vance v. Burbank, 10 U.S. 514. Until set aside or enjoined it must, of course, stand against a collateral attack with the efficacy attending judgments founded upon unimpeachable evidence. So with a patent for land of the United States, which is the result of the judgment upon the right of the patentee by that department of the government, to which the alienation of the public lands is confided, the remedy of the aggrieved party must be sought by him in a court of equity, if he possess such an equitable right to the premises as would give him the title if the patent were out of the way. If he occupy with respect to the land no such position as this, he can only apply to the officers of the government to take measures in its name to vacate the patent or limit its operation. It cannot be vacated or limited in proceedings where it comes collaterally in question. It cannot be vacated or limited by the officers themselves; their power over the land is ended when the patent is issued and placed on the records of the department. This can can be accomplished only by regular judicial proceedings, taken in the name of the government for that special purpose.

It does not follow that the officers of the government would take such proceedings even if the charges of fraud and of the use of false testimony in obtaining the patent were true. They might be satisfied that the patentee was entitled to the patent upon other testimony, or that further proceedings would result in a similar conclusion, and that therefore it would be unwise to reopen the matter. In any event, whether the officers of the government have been misled by the testimony produced before them or not, the conclusions reached by them are not to be submitted for consideration to every jury before which the patent may be offered in evidence on the trial of an action. As we said in the case of Smelting Co. v. Kemp:

'It is this unassailable character (of the patent) which gives to it its chief, indeed, its only value, as     a means of quieting its possessor in the enjoyment of the      lands it embraces. If intruders upon them could compel him,     in every suit for possession, to establish the validity of      the action of the land department and the correctness of its      ruling upon matters submitted to it, the patent, instead of      being a means of peace and security, would subject his rights      to constant and ruinous litigation. He would recover one     portion of his land if the jury were satisfied that the      evidence produced justified the action of that department,      and lose another portion, the title whereto rests upon the      same facts, because another jury came to a different      conclusion. So his rights in different suits upon the same     patent would be determined, not by its efficacy as a      conveyance of the government, but according to the      fluctuating prejudices of different jurymen, or their varying      capacities to weigh evidence.' 104 U.S. 641.

It remains to notice the defense of estoppel. The answer of the defendants alleges that Starr, the patentee, was living in Leadville from 1860 until the patent was issued to him in 1879, and was cognizant of the improvements made and of the large sums of money expended on the premises; that he and his grantors fraudulently remained quiet in respect to their ownership of mining claims there, and, from August, 1870, to the time of their application for a patent, never made known, either to the city of Leadville or to the defendants, that he or they claimed a right to any portion of the land; that other parties who made similar claims, and united with him in securing the the patent, also stood by and remained quiet; that the defendants expended the sum of $5,000 in making improvements on the premises in controversy under the claim that they constituted part of a town-site on the public domain; that there was no mining on the land, and that no notice was given that would lead the defendants to suppose that there had been any mineral location made by him and his associates; that Starr published the notice of his application for a patent only in a weekly paper of Leadville, and that the description of the consolidated claim was so defective that only a skilled engineer could tell where the land was situated; and that after the defendants discovered that the notice of the patent embraced lands in the city they were assured that they should not be disturbed in their possessions, and that only a nominal sum would be demanded from them, not exceeding $25 a lot, and that, relying upon said assurance, the defendants continued making improvements.

These allegations are very far from establishing such an equity in the defendants as to estop the patentee and those claiming under him from asserting the legal title to the premises. These matters could not operate to estop the government in any disposition of the land it might choose to make. Its power of alienation could not be affected until the defendants had performed all the acts required by law to acquire a vested interest in the land, and it is not pretended that they took any steps to secure such an interest. Whatever right, therefore, the government possessed to use or dispose of the property, freed from any claim of the defendants, it could pass to its grantee.

The principle invoked is that one should be estopped from asserting a right to property upon which he has, by his conduct, misled another, who supposed himself to be the owner, to make expenditures. It is often applied where one owning an estate stands by and sees another erect improvements on it in the belief that he has the title or an interest in it, and does not interfere to prevent the work or inform the party of his own title. There is in such conduct a manifest intention to deceive, or such gross negligence as to amount to constructive fraud. The owner, therefore, in such a case will not be permitted afterwards to assert his title and recover the property, at least without making compensation for the improvements. But this salutary principle cannot be invoked by one who, at the time the improvements were made, was acquainted with the true character of his own title, or with the fact that he had none. Brant v. Virginia Coal & Iron Co. 93 U.S. 327; Henshaw v. Bissell, 18 Wall. 271. It will not be pretended that the defendants did not understand all about the title to the land; they knew that it was vested in the United States. And we must presume that the patentee gave notice of his purpose to acquire it-such as the law required. The mode and manner of obtaining a patent for mining lands are minutely prescribed by the acts of congress. Among other things the applicant must file his application under them, in the proper land-offie, showing a compliance with the laws, together with a plat and the fieldnotes of his claim or claims in common, made by or under the direction of the surveyor general of the United States, showing their boundaries, and he must, also, and previously to the filing of the application, post a copy of the plat, with a notice of his intended application, in a conspicuous place on the land. It is conclusion, from the issuing of the patent, that this requirement was complied with, and, therefore, it cannot be said here that the patentee did not give notice of his purpose. This notice, as justly observed by the court below, was of itself a warning to all who were upon the land and were about to erect improvements upon it that the patentee was applying for a patent, and thus seeking to obtain the title. And the answer admits that the defendants did ascertain the fact of the application, for they aver a subsequent promise of the applicant to give them a title when the patent was acquired. Under these circumstances the alleged estoppel, like the other matters urged to defeat the action, must fail. it be maintained that the right fraud, perjury, and subornation of perjury, alleged as a defense, are to be taken as true, for the purpose of this decision, they are not to be taken as true for any other purpose. What we decide is that, if true, they are not available in this form of action, and that any relief against the patent founded upon them must be sought in another way and by a direct proceeding.

We have thus considered the propositions of law presented by the record, and the matters urged by counsel in his argument, so far as we have deemed them entitled to notice. They disclose nothing which would justify interference with the action of the court below. Its judgment, therefore, is affirmed.


text: Talk:Steel v. St. Louis Smelting and Refining/Opinion of the Court


text:
Nets to Catch the Wind/Atavism

I always was afraid of Somes's Pond: Not the little pond, by which the willow stands, Where laughing boys catch alewives in their hands In brown, bright shallows; but the one beyond. There, when the frost makes all the birches burn Yellow as cow-lilies, and the pale sky shines Like a polished shell between black spruce and pines, Some strange thing tracks us, turning where we turn.

You'll say I dream it, being the true daughter Of those who in old times endured this dread. Look! Where the lily-stems are showing red A silent paddle moves below the water, A sliding shape has stirred them like a breath; Tall plumes surmount a painted mask of death.

title: Nets to Catch the Wind/Atavism


text:
State of Georgia v. Jesup

The suit, out of which this appeal arises, was commenced on the fifteenth day of February, 1877, in the circuit court of the United States for the southern district of Georgia, by Morris K. Jesup, a citizen of New York, and the surviving trustee in a mortgage, or deed of trust, executed on the twentieth day of December, 1867, by the Atlantic & Gulf Railroad Company, a Georgia corporation, conveying to trustees and the survivor of them, its main line and certain branches, together with their appurtenances, rolling stock, equipment, etc., respectively, in trust to secure the payment of bonds, in a large amount, made by the company, and payable on the first day of July, 1897, with interest semi-annually, at the rate of 7 per cent. per annum. The deed contained the usual provisions requiring the trustees, upon default in the payment of the stipulated interest, to enforce the security for the benefit of the bondholders. The bill asked for the appointment of receivers; and, accordingly, on the twentieth day of February, 1877, an order was entered, appointing receivers of the entire property and effects of the railroad company embraced in the deed of trust or mortgage, with power, and charged with the duty to manage and operate the same, subject to the orders and directions of the court. The receivers took possession, and, subsequently, the order of February 20, 1877, made at chambers, was renewed and confirmed by an order of court entered on the twentieth day of April, 1877. A supplemental bill was afterwards filed enlarging the scope of the suit and asking a decree of foreclosure and sale.

On the third day of June, 1879, the railroad and its branches, with their respective appurtenances, being then in the actual possession of and operated by the receivers, under the direction of the circuit court of the United States, the state of Georgia, by its attorney general, presented a petition stating that, prior to the appointment of the receivers, executions had issued from the office of its comptroller general against the railroad company for taxes alleged to be due the state, the validity of which taxes was contested by the company, and the issue arising thereon was then pending before the courts of the state; that two of such causes-those involving the validity of the taxes for the years 1874 and 1875-were taken by the corporation upon writ of error to the supreme court of the United States, in which court, at its [then] last term, a judgment was rendered sustaining the right of the state to the taxes in question; that executions were also issued by the state against the company for the years 1876, 1877, and 1878, but as the grounds of defense were the same in each, the latter were allowed to rest and abide the decision in the two former causes, except that the execution for 1876 was in the hands of the sheriff, and had been levied upon certain property of the company before the appointment of the receivers in the foreclosure suit.

The prayer of the petition was that the state be allowed to establish these facts by reference to the records and proceedings in this cause, and also by the records and proceedings in the state courts and the supreme court of the United States, 'for the purpose, and the purpose alone, of showing, as the state claims, that this honorable court has no jurisdiction under the law, by its process of the appointment of receivers or otherwise, to hinder, delay, or prevent the execution of the process provided by the law of the state for the collection of its revenue.' 'The said state of Georgia,' the petition proceeds, 'in obedience to that comity and respect that should govern her courts towards those of another concurrent jurisdiction, and to promote that harmony which should ever prevail between herself, as one of the members of this Union, and the federal government, respectfully insists that she cannot be required, in order to obtain her rights in the premises, to become a party complainant or defendant in the litigation now pending before this honorable court, because, as she maintains: (1) This court has no jurisdiction, by the powers of injunction or otherwise, to hinder, delay, or prevent the collection of her revenue. (2) As the record shows that certain executions had been levied by the sheriff in obedience to process from the state courts, upon which issues had been joined by the defendant corporation, their jurisdiction could not be affected by a suit filed subsequently in the courts of the United states, [and] the appointment of receivers and a sale by the latter jurisdiction would be inoperative and void. (3) It is against public policy to require a state, in the collection of her revenue, to await the slow and tedious process necessary to determine the numerous issues made in this cause between private litigants.' The prayer of the state was that the court pass such an order as would fully protect its rights in the premises.

The record contains no part of the proceedings in the causes in the state courts to which the state's petition referred. All that it contains in the way of documents or papers relating to taxes against the company, are certain executions from the office of the comptroller general of Georgia, with the returns thereon, viz.: An execution for the taxes of 1874, amounting to $32,764.10, returned by the sheriff, levied, October 6, 1874, 'upon lots No. 23 and 24, Atlantic ward, city of Savannah, county and state aforesaid, and will sell the said described property on the first Tuesday in November, 1874, before the court-house door, in terms of the law;' an execution for the taxes of 1875, amounting to $8,754.55, returned levied, November 15, 1875, 'upon the buildings known as the machine-shop, locomotive-house, and car-shop, situate, lying, and being at the Atlantic & Gulf Railroad depot, in the city of Savannah, county and state aforesaid, and will advertise and sell the same, in terms of the law, the property of the defendant;' the execution for the taxes for 1876 for $9,080.31, $18,160.62 penalty for default in paying the tax, returned, as levied, January 8, 1877, upon lots 23, 24, 33, and 36, in Savannah; the execution for taxes for 1877, amounting to $9,333,12, and $27,990.36 as a penalty for non-payment of taxes and costs, the last execution being returned, 'property, by order and decree of the United States court, in the hands of receivers;' and execution for taxes of 1878 for $7,070.26, and $21,228.78 as penalty for non-payment of taxes and costs. Upon this last execution no return appears to have been made.

On the sixth day of June, 1879, this order was made in the court below:

'The state of Georgia, having petitioned for leave to proceed with certain executions for taxes, after argument and consideration, it is ordered and decreed that the said petition of the state of Georgia be denied, and the same is hereby dismissed.'

On the same day a final decree of foreclosure was made, by which, among other things, it was, in substance, declared that the company was indebted to the state in the following principal sums for taxes: For 1874, $32,764.71; for 1875, $8,754.55; for 1876, $9,080.31; for 1877, $12,441.16; for 1878, $7,076.26; in all, the sum of $70,116.99-the sums specified in the several executions for taxes, omitting the penalties claimed in those for 1876, 1877, and 1878. It was further declared that the company was liable for the principal of such tax as might be assessed by the comptroller general of the state for the year 1879; that such taxes were prior to all other liens, except judicial costs, and should be paid out of the proceeds of sale and any balance of money and assets in the hands of the receiver, next after the payment of such costs; and that neither penalties or interest were due on the taxes for any of the aforesaid years.

Afterwards, on the twenty-second of August, 1879, the state presented to the court its petition for appeal, as follows:

'The state of Georgia having filed a petition denying the jurisdiction of said circuit court of the United States, and claiming the right of said state to proceed with said executions, notwithstanding the property of said defendant corporation was in the possession and control of said court through receivers appointed thereby, and the said circuit court having passed a decree, so far as the rights and claims of said state in the premises were concerned, denying and refusing said claim set up, and said state of Georgia, being advised that she has a good and valid cause of appeal, now comes * * * and prays this honorable court to grant an appeal in said cause to the supreme court of the United States, on such terms and conditions as required by law.'

The appeal thus prayed was allowed.

R. N. Ely, Clifford Anderson, and Robert Tooms, for appellant.

W. S.C.hisholm and Robert Fallingant, for appellees.

HARLAN, J.

title: State of Georgia v. Jesup


text: Talk:State of Georgia v. Jesup

title: Talk:State of Georgia v. Jesup


text:
State of Georgia v. Jesup/Opinion of the Court

It does not seem incumbent upon this court to determine some of the questions, however important or interesting as abstract propositions, which counsel have pressed upon its attention. The case, as presented by the record, is within a very narrow compass, as is evident from the statement already made of the history and nature of the litigation out of which the present appeal arises.

The action of the court below is assailed by the state upon numerous grounds separately stated in the assignment of errors. They are, however, all comprehended in the general proposition that the court erred in denying and dismissing the state's petition, filed June 3, 1879, thereby, it is claimed, adjudging that the sheriff could not, pending the possession and control by the receivers of the property, rightfully proceed with the executions for taxes, and in decreeing that the state is not entitled to penalties on its taxes for the years named in the final decree of foreclosure.

Touching the first of these propositions, it may be observed that if it was not a matter wholly within the discretion of the circuit court to permit the state to become a party to the foreclosure suit, it is clear that the state did not ask to become, nor was it in any form made, a party to that suit. It is equally clear that it could not have been made a party without its consent. While questioning with great distinctness of language the jurisdiction of the circuit court to take possession, by its receivers, of the property previously levied on in satisfaction of the several executions for taxes, the state avowed its unwillingness to submit its rights in the matter of taxes to the adjudication of any court of the United States. It, therefore, assumed such a position with reference to the foreclosure suit that, while asking an order to be entered discharging the receivers as to the property levied on, and as to that proposed to be levied on for taxes, it would not be bound by any ruling the court might make. Still, a proper respect for the state seemed to require that the court should in some form indicate its opinion touching the formal suggestion that the court below had overstepped the limits of its jurisdiction, accompanied by a request that the court would revise its proceedings, and not allow the sheriff, having in his hands executions for taxes, to be embarrassed by the actual possession and control by the receivers of the circuit court of the property of the railroad company. The court below was of opinion that it had jurisdiction to do what had been done, and that it ought not to make any such order as that suggested by the state. But it nevertheless directed that the principal sums claimed by the state for taxes should be paid out of the proceeds of the sale of the mortgage property, next after paying judicial costs. It declined to make any provision for the payment of penalties or interest upon taxes. The record shows that the principal sums declared to be due the state have been received by it.

The action of the circuit court was based, in part, upon what was regarded as the settled doctrines of the supreme court of Georgia, in respect of the right, under execution, in the ordinary form, and not specially molded for that purpose, to seize and sell, at different sales, separate portions of a railroad, operated under franchises conferred by the state for purposes of travel and transportation. Without be raised by the state's petition, it other questions of law supposed to be raised by the state's petition, it is sufficient to say that the order, denying and dismissing that petition, is not one which the state can ask this court to review upon its appeal; this, for the reason already indicated, if there were no other, that the order did not conclude the state-it being no party to the suit-as to any right acquired by virtue of the executions for taxes. It was not an adjudication or judicial determination of those rights as between the state and the parties to the foreclosure suit. If, by law, the levies, in behalf of the state, were valid to the extent of creating a prior lien in its favor for taxes, or for the penalties or interest thereon,-as -as to which questions we express no opinion,-that priority was not affected or displaced by the subsequent possession of the property by the receivers in the foreclosure suit. In no legal sense has the state been injured by the order dismissing its petition. It may not, therefore, claim as matter of right, that this court shall, upon this appeal, review the action of the court below in declining to surrender possession of the property covered by the levies under the executions for taxes.

In reference to that part of the final decree of foreclosure, declaring, as between the parties before the court, that the state was not entitled to penalties or interest on its taxes, we remark, that if the state, not being a party to the suit, could have appealed therefrom, it has not done so. The petition of August 22, 1879, plainly imports that the appeal prayed for was only from the order of June 6, 1879, denying and dismissing the petition of June 3, 1879. It is, therefore, not competent for this court, upon the present appeal, to review that portion of the final decree relating to penalties and interest on taxes. Whether the state is concluded by any action subsequeatly taken by it under that decree, or whether the state laws, or is, entitled to penalties and interest on its taxes, are this appeal, and are not intended this appeal, and are not intended to be decided.

For these reasons the decree must, on this appeal, be affirmed. It is so ordered.


text: Talk:State of Georgia v. Jesup/Opinion of the Court


text:
Clark v. Keith

Benj.J.Lea, Henry Cooper, and Harace H. Harrison, for plaintiff in error.

''R. McP. Smith and Sp'l Hill'', for defendant in error.

WAITE, C. J.

title: Clark v. Keith


text: Talk:Clark v. Keith

title: Talk:Clark v. Keith


text:
Clark v. Keith/Opinion of the Court

When this case was here on a former writ of error it was decided that Keith, the collector, was bound in law to receive the genuine notes of the Bank of Tennessee, issued after May 6, 186§, in payment of taxes due the state of Tennessee, unless he showed in defense that the notes tendered were issued for the purpose of aiding the rebellion. The affirmative of this issue was put on the collector. Keith v. Clark, 97 U.S. 454. That question is no longer open in this case, for the reason that it has long been settled that whatever has been decided here on one writ of error cannot be re-examined on a subsequent writ brought in the same suit. This rule was distinctly stated in Sup'rs v. Kennicott, 94 U.S. 499, where numerous authorities are cited, beginning as early as Himely v. Rose, 3 Cranch, 314.

On the trial of an issue framed to meet the case as it was sent back from here for further proceedings, the court instructed the jury as follows:

'If a part of the Torbett issue (that after May 6, 1861) was     made and signed by the proper officers of the bank to aid the      rebellion, and the other part of said issue was made, signed,      and issued for the purpose of doing a legitimate banking      business, and you cannot say from the evidence in the case      that the notes here sued on were issued in aid of the      rebellion, or were signed and issued for legitimate banking      business, then you should find for the plaintiff. In other     words, the law presumes that the notes here sued upon were      issued for a lawful purpose, and the burden of proof is upon      the defendant to show otherwise before this defense can be      sustained.'

The ruling of the supreme court of Tennessee sustaining this instruction is the only error assigned on the record brought up with the present writ. As the instruction was in exact conformity with our former decision, which we cannot re-examine in the present case, the judgment is affirmed.

title: Clark v. Keith/Opinion of the Court


text: Talk:Clark v. Keith/Opinion of the Court


text:
Author:Alexander Taylor Innes

Works

 * College Years: the valedictory address of the Dialectic Society of the University of Edinburgh for session 1856/57 (1857).
 * The Law of Creeds in Scotland: A Treatise on the Legal Relation of Churches in Scotland Established and not Established, to their Doctrinal Confessions (1867)
 * The Church of Scotland Crisis 1843 and 1874: and the Duke of Argyll (1874)
 * The Scotch Law of Establishment, an answer to the two new positions of the Duke of Argyll (1875)
 * Letters from the Red Beech. Six Letters from a Layman to a Minister of the Free Church of Scotland on the Canon, the Pulpit, and Criticism (1880)
 * The Assembly of 1881 and the case of Professor Robertson Smith (1881)
 * The Confidence of the Church. A letter to Sir Henry W. Moncreiff, Bart., D.D. (1881)
 * Samuel Rutherford (1883)
 * Open Teaching in the Universities of Scotland (1885)
 * Church and State, a Historical Handbook (1890)
 * Studies in Scottish History, chiefly Ecclesiastical (1892)
 * John Knox (1896)
 * Trial of Jesus Christ: A legal monograph (1899)
 * The Law of Creeds in Scotland: a treatise on the relations of churches in Scotland, established and not established, to the civil law (1902)
 * Scottish Churches and the Crisis of 1907 (1907)
 * Chapters of Reminiscence (1913)

title: Author:Alexander Taylor Innes


text:
Morrill v. Jones

Section 2505 of the Revised Statutes provides, among other things, that 'animals, alive, specially imported for breeding purposes from beyond the seas, shall be admitted free [of duty] upon proof thereof satisfactory to the secretary of the treasury, and under such regulations as he may prescribe.' Article 383 of the treasury customs regulations provides that before a collector admits such animals free he must, among other things, 'be satisfied that the animals are of superior stock, adapted to improving the breed in the United States.' Jones, the defendant in error, imported certain animals, which were entered at the port of Portland, Maine, and claimed that they should be admitted free, as they were 'specially imported for breeding purposes.' The collector, though the importation was for breeding purposes, demanded the duties because he was not satisfied the animals were of 'superior stock.' The duties were accordingly paid under protest and this suit was brought to recover back the amount so paid. On the trial the court instructed the jury 'that, under the statute, animals, whether of superior or inferior stock, if in fact imported specially for breeding purposes, are entitled to be admitted free of duty,' and 'that the law does not give to the secretary of the treasury power to prescribe in the regulations what classes of animals imported for breeding purposes shall be admitted free of duty.' To this instruction an exception was taken. The jury returned a verdict against the collector, upon which judgment was rendered. To reverse that judgment this writ of error was brought. The only error assigned on the exceptions actually taken at the trial relates to the instruction as to the effect of the treasury regulation.

Asst. Atty. Gen. Maury, for plaintiff in error.

''Chas. P. Mattocks'', for defendant in error.

WAITE, C. J.

title: Morrill v. Jones


text: Talk:Morrill v. Jones

title: Talk:Morrill v. Jones


text:
Nets to Catch the Wind/Wild Peaches

1 When the world turns completely upside down You say we'll emigrate to the Eastern Shore Aboard a river-boat from Baltimore; We'll live among wild peach trees, miles from town. You'll wear a coonskin cap, and I a gown Homespun, dyed butternut's dark gold color. Lost, like your lotus-eating ancestor, We'll swim in milk and honey till we drown.

The winter will be short, the summer long, The autumn amber-hued, sunny and hot, Tasting of cider and of scuppernong; All seasons sweet, but autumn best of all. The squirrels in their silver fur will fall Like falling leaves, like fruit, before your shot.

2 The autumn frosts will lie upon the grass Like bloom on grapes of purple-brown and gold. The misted early mornings will be cold; The little puddles will be roofed with glass. The sun, which burns from copper into brass, Melts these at noon, and makes the boys unfold Their knitted mufflers; full as they can hold, Fat pockets dribble chestnuts as they pass.

Peaches grow wild, and pigs can live in clover; A barrel of salted herrings lasts a year; The spring begins before the winter's over. By February you may find the skins Of garter snakes and water moccasins Dwindled and harsh, dead-white and cloudy-clear.

3 When April pours the colors of a shell Upon the hills, when every little creek Is shot with silver from the Chesapeake In shoals new-minted by the ocean swell, When strawberries go begging, and the sleek Blue plums lie open to the blackbird's beak, We shall live well--we shall live very well.

The months between the cherries and the peaches Are brimming cornucopias which spill Fruits red and purple, somber-bloomed and black; Then, down rich fields and frosty river beaches We'll trample bright persimmons, while we kill Bronze partridge, speckled quail, and canvas-back.

4 Down to the Puritan marrow of my bones There's something in this richness that I hate. I love the look, austere, immaculate, Of landscapes drawn in pearly monotones. There's something in my very blood that owns Bare hills, cold silver on a sky of slate, A thread of water, churned to milky spate Streaming through slanted pastures fenced with stones.

I love those skies, thin blue or snowy gray, Those fields sparse-planted, rendering meager sheaves; That spring, briefer than apple-blossom's breath, Summer, so much too beautiful to stay, Swift autumn, like a bonfire of leaves, And sleepy winter, like the sleep of death.

title: Nets to Catch the Wind/Wild Peaches


text:
Morrill v. Jones/Opinion of the Court

The secretary of the treasury cannot be his regulations alter or amend a revenue law. All he can do is to regulate the mode of proceeding to carry into effect what congress has enacted. In the present case we are entirely satisfied the regulation acted upon by the collector was in excess of the power of the secretary. The statute clearly includes animals of all classes. The regulations seek to confine its operation to animals of 'superior stock.' This is manifestly an attempt to put into the body of the statute a limitation which congress did not think it necessary to prescribe. Congress was willing to admit duty free all animals specially imported for breeding purposes. The secretary thought this privilege should be confined to such animals as were adapted to the improvement of breeds already in the United States. In our opinion, the object of the secretary could only be accomplished by an amendment of the law. That is not the office of a treasury regulation.

It has been argued here that as it appears from the testimony, which has been incorporated into the bill of exceptions, that the importation in this case was from Prince Edward's island, it was not from 'beyond the seas,' and therefore that the judgment below was right. It is a sufficient answer to this objection that no such point was made below. The court was not asked to rule on any such question. Our examination is confined to such exceptions as were taken to the rulings actually made on the trial and incorporated in some form into the record, 'an authenticated transcript' of which is returned with our writ of error.

The judgment of the circuit court is affirmed.

title: Morrill v. Jones/Opinion of the Court


text: Talk:Morrill v. Jones/Opinion of the Court


text:
Branch v. Jesup

W. W. Montgomery, for appellants.

W. S.C.hisholm and R. Falligant, for appellees.

BRADLEY, J.

title: Branch v. Jesup


text: Talk:Branch v. Jesup

title: Talk:Branch v. Jesup