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Bank v. Carrollton Railroad

APPEAL from the Circuit Court for the District of Louisiana.

The Fourth National Bank of New York filed a bill in December, 1867, in the court below against the New Orleans and Carrollton Railroad Company, Beauregard, Hernandez, Binder, and Bonneval. The court dismissed the bill and this case was an appeal by the bank. The case was thus:

The railroad company just mentioned was a corporation in Louisiana, which had made a railroad from New Orleans to Carrollton. On the 12th April, 1866, this corporation made a lease to the defendant, Beauregard, of the road, for twenty-five years, from the 16th of that month, at a rent of $20,000 a year, under covenants to make large improvements and changes in its condition and operation. The lease contained this provision:

'The said lessee (Beauregard) shall not have the right of transferring this lease or of underletting the premises leased without the consent of the directors of the said railroad company.'

A certain May and one Graham signed the lease as sureties for Beauregard, the lessee. Immediately after the execution of this lease, that is to say, on the 18th April, Beauregard, May, and Graham entered into an agreement for the equipment of the road for their common advantage. Beauregard was to have charge and direction of the road, appointing his own assistants; to have for himself an annual salary of $5000. All was to be in his name, but for the common benefit. The arrangement was to continue for twenty-five years. The whole amount of the money necessary to carry out the enterprise was to be furnished by May and Graham $20,000 by each immediately after the lease was obtained, and $20,000 by each every month after, for four months, and them $10,000 each, per month, for five months. The money advanced, with 8 per cent. interest, was to be repaid from the annual net profits and the remainder of the profits was to be divided between the partners; all losses being borne equally. Books were to be kept showing the moneys received and expended, and the purchases made on account of the copartnership, and monthly statements of the amounts received and expended were to be furnished by Beauregard to May and Graham. On the 8th May, 1867, Graham, in consideration of one dollar, assigned all his estate, right, and title to the lease which he derived from the partnership articles, and all his right and interest in any property and effects of the partnership, and all debts due to him by the said partnership or any partner, to the complainant, and it was in virtue of this assignment that the bill was filed. It will be observed that neither May nor Graham, the partners, were parties to the bill. The purpose of the bill, which did not charge any fraudulent confederacy, was to enforce the transfer made by Graham. The bill charged that the defendants had taken possession of the lease and partnership, and would not recognize the partnership or the interest of the plaintiff; that they claim under the copartner, May, and claim independently of the plaintiff. In point of fact, they claimed two-thirds of the partnership, in virtue of an assignment from May, made on the 14th and 16th of May, 1867, and denied that when Graham assigned to the bank he had any interest to assign; asserting that he was but a trustee for May. The prayer of the bill was that the defendants might be ordered to recognize the interest of the complainant, the bank, in the copartnership and in the business carried on under the lease, and to pay them the capital advanced by Graham and his share of profits.

Issue being joined and evidence being taken, the question as to the true interest of Graham in the partnership, whether indeed he had any as against May, and how far he had a right to make the assignment which he did, to the bank, were matters to which testimony was largely directed.

The court below dismissed the bill, with leave to the complainant to bring a suit against Beauregard, Graham, and May, for a settlement of whatever partnership existed between them prior to the transfer of May, on the 14th and 16th of May, 1867.

Graham at the time when the lease was made was a resident of New Orleans, but in 1866 removed to New York, and was a citizen of that place when the bill was filed in 1867.

Mr. P. Phillips, for the bank, appellant, recapitulating the evidence, contended that on it the bona fides of the assignment by Graham to the complainant on the 8th May, 1867, could not be successfully impeached; that Graham having thus assigned his interest to the complainant, and May his interest to Hernandex, Binder, and Bonneval, the bill was well filed against the latter and Beauregard, one of the original partners, to have an account of the profits of the concern under the prayer for general relief; that as the assignment by Graham to the complainant was absolute, Graham was not a necessary party; this, especially, as to have made him a defendant (being a citizen of the same State with the complainant) would have ousted the jurisdiction; that the decree dismissing the bill with leave to institute a suit against Beauregard, May, and Graham for a settlement of whatever partnership existed between them prior to the transfer by May, on the 14th and 16th May, 1867, was palpably erroneous, as it was through May that Bonneval, Binder, and Hernandez had come into the possession and control of the partnership effects; that the real defendants were thus protected from a suit and parties who had divested themselves of all possession and interest were to be substituted as defendants; this in an equity proceeding which deals always with those who have the real interest.

But admitting that May and Graham were necessary parties, Mr. Phillips contended that their absence did not deprive the court of jurisdiction over the cause; that the objection could only be urged against granting the relief sought without bringing them in, and that this did not warrant an absolute dismissal of the bill as to those properly before the court; that in such a case an amendment of the bill would be ordered. And that, if necessary to maintain the jurisdiction, Graham might have been made a co-plaintiff.

Messrs. J. A. and D. Campbell, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Bank v. Carrollton Railroad


text: Talk:Bank v. Carrollton Railroad

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

title: Talk:Bank v. Carrollton Railroad


text:
Bank v. Carrollton Railroad/Opinion of the Court

The effect of Graham's assignment to the complainant was undoubtedly to dissolve the partnership which had existed between Beauregard, May, and himself, but it did not make his assignee a tenant in common with the other two partners in the property of the firm. It seems to be assumed on behalf of the complainant, that in succeeding to Graham's rights, the bank acquired an ownership of the effects of the firm jointly with Beauregard and May, and that, as Graham had been an equal partner with them, his assignee of course became the owner of one undivided third of the railroad lease and other property of the firm. But this assumption is based upon a misapprehension of the effect of the assignment. It has repeatedly been determined, both in the British and American courts, that the property or effects of a partnership belong to the firm and not to the partners, each of whom is entitled only to a share of what may remain after payment of the partnership debts and after a settlement of the accounts between the partners; consequently that no greater interest can be derived from a voluntary sale of his interest by one partner, or by a sale of it under execution. In Taylor v. Fields, it was said that 'a party coming into the right of a partner' (in any mode, either by purchase from such partner, or as a personal representative, or under an execution, or commission of bankruptcy) 'comes into nothing more than an interest in the partnership, which cannot be tangible, cannot be made available, or be delivered but under an account between the partnership and the partner, and it is an item in the account that enough must be left for the partnership debts.'

When, therefore, the bank obtained from Graham the assignment, which is the foundation of its claim in this suit, it obtained thereby no ownership of the lease made by the railroad company to Beauregard, and which he agreed to hold for the benefit of the firm, nor did it obtain any aliquot part of it, or of any of the effects of the firm. The utmost extent of its acquisition was an interest in the surplus, if any, which might remain after all debts of the firm should be paid, and after the liabilities of Graham to his copartners, as such, should be discharged. It was not in the power of Graham, by retiring from the firm in violation of the articles of corpartnership, either to introduce another partner or to deprive the partners who remained of their right to have all the partnership property held for partnership purposes. Incident to the rights of the bank to share in the surplus was a right to enforce a settlement of the partnership accounts in order to ascertain whether there was any surplus. It is true the words of the assignment were very broad. It purported to transfer all the estate, right, title, and interest in the lease made by the New Orleans and Carrollton Railroad Company to Beauregard, to which the assignor might be entitled by virtue of the articles of copartnership, and also all his right and interest in any property and effects of the partnership, and all debts due to him from the partnership or any member thereof. But no matter what its language, it is clear no more could pass under it than the right of the assignor; and if, as we have said, that was not a right to the specific articles of property belonging to the firm, the bank obtained no such right. We are not now speaking of the fact that, under his contract with the railroad company, Beauregard had no right to transfer the lease either to the partnership or its members. The case does not require us to consider that inability. It is sufficient that the complainant's right was only an equity to share in the surplus, if any, of the firm property after settlement of the partnership accounts, and that this is a bill for such a settlement. Manifestly, then, it is incurably defective, because neither Graham nor May are made parties defendant. It is too plain for discussion that to such a bill all the members of the firm are indispensable parties, for they are all directly affected by any decree that can be made. How utterly impossible it is to ascertain what the equity of the complainant is, with the present state of the record, will appear more distinctly, if the provisions of the articles of copartnership be considered. When it was formed, Beauregard had obtained from the New Orleans and Carrollton Railroad Company a lease of its railroad, with all its rolling stock, and with its corporate privileges, for the term of twenty-five years. Though the sole lessee, and prohibited by his contract from assigning or underletting, it was nevertheless agreed between him and his copartners that the lease should be for their common benefit; that May and Graham should each advance one hundred and fifty thousand dollars to carry on the enterprise of running the road, and that Beauregard should take charge of, manage, and direct the undertaking for the mutual advantage of the parties, at a fixed annual salary, selecting and appointing his own assistants. It was agreed that the money advanced, with eight per cent. interest, should be repaid from the annual profits of the enterprise, and that the remainder of the net profit should be equally divided between the partners, and that all losses should be equally borne by them. The contract evidently contemplated that the property of the firm and the management of its affairs should be in the hands of Beauregard. Books were to be kept showing not only all money received and expended, but also all purchases made on account of the copartnership, and monthly statements of amounts received and expended were required to be furnished by Beauregard to May and Graham. It was also agreed that the partnership should continue twenty-five years from the date of the lease, which was April 12th, 1866. Now, it is quite possible that, on settlement of the accounts, Graham may be found indebted to the firm, or to his copartners, and that the court would be required thus to decree. How can such a decree be made when he is no party to the record? Or it might appear that May is a large debtor to the firm. How can any decree be made against him? How can any decree be made that will not prejudice one or the other of these partners? And yet, whether the bank complainant has any interest or not-whether it acquired anything under Graham's assignment, can be determined only by a final and conclusive settlement of the partnership accounts between all the partners, two of whom are not parties to this suit.

It is argued, however, on behalf of the appellant, that even if May and Graham were necessary parties, the bill should not have been dismissed, but that the complainant should have been allowed to bring in new parties by a supplemental bill. It is, doubtless, the general rule that a bill in chancery will not be dismissed for want of proper parties; but the rule is not universally true. It rests upon the supposition that the fault may be remedied, and the necessary parties supplied. When this is impossible, and whenever a decree cannot be made without prejudice to one not a party, the bill must be dismissed. Nothing is to be gained by retaining it, when it is certain that the complainant can never be entitled to a decree in his favor. In the present case, we have seen that no decree for an account can be made, until all the partners are made parties. But if both May and Graham had been made parties defendant, the Circuit Court would have had no jurisdiction of the case. It is said Graham might have been made a co-plaintiff. Perhaps he might, and had application been made in due season for such an amendment of the bill, it might have been the duty of the Circuit Court to grant it. But no such application was made. The complainants chose to stand upon their case as they presented it. Possibly they never would have sought to bring in the necessary parties. The defendants could not bring them in. New parties cannot be brought into a cause by a cross-bill, and had the bill not been dismissed, it must have been left at the option of the complainants whether the case should ever be brought to a final decree. Under these circumstances, there was no reason for retaining the bill.

It is insisted, however, that the court erred in dismissing the bill, reserving only a right to sue Beauregard, May, and Graham, for a settlement of the partnership between them prior to the 14th and 16th of May, 1867. Yet if the right acquired by Graham's assignment was, as the authorities show, not an ownership of the specific effects of the partnership, but only a right to share in the surplus remaining after the settlement of the partnership accounts and the payment of all its debts, as well as the just claims of the several partners, it is clear there can be in the complainant no equity against the railroad company, or against Hernandez, Binder, or Bonneval, who have succeeded to May's rights (not his obligations), if they have not to Graham's. No fraudulent confederacy is charged in the bill. At most, according to the complainant's own showing, they are purchasers of property that belonged to the firm. There was, therefore, not only a want of indispensable parties, a want which cannot be supplied without ousting the jurisdiction of the court, but a misjoinder of the defendants, a misjoinder apparent upon the face of the bill. Hence the decree of the Circuit Court was correct.

AFFIRMED.


text: Talk:Bank v. Carrollton Railroad/Opinion of the Court


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United States v. Lynde

APPEAL from the District Court of the United States for the District of Louisiana.

The heirs of John Lynde filed a petition in the court below, the object of the suit having been to obtain the recognition and confirmation, as against the United States, of a claim for 32,025 arpents of land in Louisiana, under the provisions of an act of Congress, entitled, 'An act for the final adjustment of Private Land Claims in the States of Florida, Louisiana, and Missouri, and for other purposes.' Approved June 22, 1860.

The petitioners claimed title under a grant by Juan Ventura Morales, Spanish intendant of West Florida, to John Lynde, their ancestor, on the 12th day of July, 1806, in pursuance of an application made by Lynde on the 26th day of September, 1803, and regular surveys thereon. The lands were situated east of the river Mississippi, and south of the 31st parallel of latitude, in a direction nearly north of Baton Rouge, and were a part of the disputed territory, which, after the cession of Louisiana to the United States in 1803, was claimed by them as part of Louisiana, and by Spain as a part of West Florida. The cause of this contention between the claimants under the Spanish grant and the United States, originated in the various treaties of cession which had been made respecting these territories.

The court below decided in favor of the claim, and the United States brought the case here. It was submitted on briefs of Mr. Akerman, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, for the United States, and of Mr. Louis Janin, contra, for the claimant.

Mr. Justice BRADLEY stated the history and nature of the title on both sides, and delivered the opinion of the court.

title: United States v. Lynde


text: Talk:United States v. Lynde

title: Talk:United States v. Lynde


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

Louisiana, as possessed by the French prior to 1763, embraced not only the entire territory west of the Mississippi, but also extended east of that river, along the Gulf of Mexico, as far as the Perdido, the present boundary between Alabama and Florida. By the treaties of 1763 France ceded the latter portion, lying east of the Mississippi, except the city and island of New Orleans, to Great Britain, and the residue to Spain. Subsequently (in 1783), Spain acquired the part ceded to Great Britain, and thus became possessed of the entire territory on our western and southern borders. On the 1st of October, 1800, a secret treaty was made at St. Ildefonso, between Spain and Bonaparte, then First Consul, by which Spain agreed, on certain conditions to be performed, to retrocede to the French republic 'the colony or province of Louisiana with the same extent that it now has in the hands of Spain, and that it had when France possessed it, and such as it ought to be after the treaties subsequently entered into between Spain and other states.'

The ambiguity of this last expression was the cause of the subsequent misunderstanding between Spain and the United States. Did it mean that Spain was to retrocede to France all the territory which the latter had formerly possessed under the name of Louisiana, or only so much as remained after the separation of West Florida therefrom, and the cession thereof to Great Britain? The United States contended the former, Spain the latter.

The importance of this question arose from the fact that the cession of Louisiana by Bonaparte to the United States included in precise terms what had been retroceded by Spain to France. The treaty of April 30, 1803, after reciting the exact language of the treaty of St. Ildefonso, describing the colony or province of Louisiana as above stated, ceded 'the said territory, with all its rights and appurtenances, as fully and in the same manner as they had been acquired by the French republic in virtue of the above-mentioned treaty with his Catholic Majesty.'

In accordance with her construction of the treaty of St. Ildefonso, Spain refused to surrender the possession of the territory east of the Mississippi and Iberville Rivers which she had acquired from Great Britain, and which the English had named West Florida, and she retained possession of it and exercised full sovereignty over it for many years afterwards.

Notwithstanding this refusal of Spain to deliver up West Florida, the United States, through the executive and legislative departments of the government, always claimed that it was covered by the two treaties of cession, and insisted that it rightfully belonged to them, though no demonstrations were made to dispossess the Spanish authorities until 1810, when President Madison issued a proclamation directing that possession should be taken, but at the same time declared that the right thereto should remain, as it had continued, a subject for amicable negotiation with the Spanish government. Possession was taken by the United States accordingly.

During the period that Spain remained in possession, her authorities continued to grant lands, not only in small parcels to actual settlers, under her colonization laws, but in large tracts to speculators and favorites.

From 1803 to 1806, inclusive, the Spanish intendant, Morales, made many such grants (of which the grant in question was one), and which have ever since been the subject of much litigation and dispute, never being recognized as valid by our authorities, unless so recognized by the act of 1860, hereafter referred to.

Immediately after acquiring possession of Louisiana, in 1803, Congress passed an act to organize temporary governments in the newly acquired domain. This act, which was passed on the 26th day of March, 1804, created two territories-one, embracing all that part of the ceded country lying south of Mississippi Territory, east of the Mississippi River, and south of the 33d parallel of latitude west of that river, to be called the Territory of Orleans; the other, embracing all the residue of the ceded country, namely, that portion lying west of the river Mississippi and north of the 33d parallel, to be called the District of Louisiana. By the 14th section of this act all grants of land within the ceded territories, the title whereof was, at the date of the treaty of St. Ildefonso (October 1, 1800), in the crown, government, or nation of Spain, were declared void, except bon a fide grants made to actual settlers prior to December 20, 1803, not to exceed one mile square to each settler, and the usual proportion for his wife and family.

According to the views of our government this act extended to West Florida (so called) as well as to Louisiana, and as a part thereof. President Madison, in 1810, in the proclamation referred to, commences with these words:

'Whereas the territory south of the Mississippi Territory and eastward of the river Mississippi, and extending to the river Perdido, of which possession was not delivered to the United States in pursuance of the treaty concluded at Paris on the 30th of April, 1803, has at all times, as is well known, been considered and claimed by them as being within the colony of Louisiana conveyed by the said treaty, in the same extent that it had in the hands of Spain, and that it had when France originally possessed it,' &c.

He then states that the United States had forborne to take possession, not from any distrust of their title, but from motives of conciliation towards Spain, and shows why it was inexpedient to delay taking possession any longer, and concludes by directing Governor Claiborne, 'governor of the Orleans territory, of which the said territory is to be taken as part, to take possession of the same, and to exercise over it the authorities and functions legally appertaining to his office.'

By the act of 25th April, 1812, after possession of West Florida had been assumed by our government, commissioners were appointed to investigate all the titles and claims to lands in that territory, and the claim now before us was laid before the proper commissioner and rejected on the ground that the territory was a part of Louisiana ceded to the United States in 1803, and that the authority of Spain over the same had ceased by the treaty of St. Ildefonso of October 1, 1800. Other claims belonging to the same category met with a like fate. A list of these claims, rejected by the commissioner for the district between the Mississippi and Pearl Rivers, may be found in the American State Papers. The commissioner reports, that in his opinion these claims ought not to be confirmed: 1st, because the government of the United States claims an absolute property in the territory; 2d, because the Spanish government evidently distrusted its own right to make these grants, as they were made in a manner entirely different from the usages and customs always before observed in granting lands. It was not the custom of Spain to make sale and gain of her public lands, but to grant them to actual settlers. Nevertheless, the commissioner suggests whether the United States government, by permitting Spain to remain in possession of the country, and thus to impose upon persons purchasing lands in good faith, was not morally bound by considerations of equity and policy to make these purchasers some compensation.

These events happened prior to the treaty between Spain and the United States, entered into February 22, 1819, by which his Catholic Majesty ceded to the latter all the territories belonging to him, situated to the eastward of the Mississippi, known by the name of East and West Florida.

By the 8th article of that treaty it is stipulated as follows:

'All the grants of land made before the 24th of January, 1818, by his Catholic Majesty, or by his lawful authorities in the said territories ceded by his Majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic Majesty.'

When this treaty came before the courts it was held that it furnished no aid to the disputed claims, since it only guaranteed grants made by the King of Spain in the territory ceded by that treaty; and the territory ceded only embraced such territory as belonged to the King of Spain; and as the United States held that the disputed territory did not belong to him, no grants made by him therein were confirmed by the treaty.

In 1829 the case of Foster and Elam v. Neilson came before this court on a claim for 40,000 arpents of land under one of the grants of Morales, precisely like the claim now before the court. The case is reported in 2 Peters, and contains, in the arguments of counsel and the opinion of the court, a complete history of the controversy. Chief Justice Marshall ably reviews the argument of our government in favor of its claim under the treaties of St. Ildefonso and of April 30th, 1803. He admits that the former is susceptible of a twofold construction; but he concludes, and that was the judgment of the court, that the judicial department is bound by the construction adopted by its own government. He says:

'If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which is claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that the construction is to be denied. A question like this respecting the boundaries of nations is, as has been truly said, more a political than a legal question, and in its discussion the courts of every country must respect the pronounced will of the legislature.'

The Chief Justice then turns to the question whether the treaty of 1819 had effected any change in the position of these grants before the courts. After quoting the eighth article of the treaty, which stipulates that 'all the grants of land made before the 24th of January, 1818, by his Catholic Majesty, or by his lawful authorities, in the said territories ceded, &c., should be ratified and confirmed,' he inquires what territories were ceded; and observes that the cession did not embrace all territories situated to the eastward of the Mississippi, but all the territories which belonged to him (the King of Spain) thus situated. If, according to the position assumed by our government, the United States had already acquired a full title to West Florida, as far to the eastward as the Perdido River, then Spain had no title, and ceded nothing therein; and, by consequence, the stipulation in the eighth article of the treaty in favor of grants made by his Catholic Majesty 'in the territories ceded' would not apply to the grant then before the court. Another difficulty in the case, as viewed by the court, was in the form of the stipulation. It was, that all grants 'shall be ratified and confirmed,' not 'are ratified and confirmed;' a form of expression which the court held required the intermediate action of the legislature confirmatory of the grants before the courts could act upon them. For these reasons the court decided against the claim.

In the subsequent case of Arredondo, on an examination of the Spanish side of the treaty, the court held that the last point made in Foster v. Neilson, was untenable; and that the treaty was a present confirmation of the grants referred to in it; and the same was decided in United States v. Percheman. But this did not affect the question at issue. The main objection still remained.

Meantime attempts were made in Congress to secure the recognition of these Spanish grants, but without success. In February, 1832, a resolution was passed by the House of Representatives, calling on the Secretary of State for his opinion of the justice and validity of the claims arising upon those grants, and of the expediency of providing by law for their final adjustment. Mr. Edward Livingston, the then Secretary of State, who had been counsel for the claimants, made a lengthy and able report, stating the history of the grants and the questions arising thereon, and strongly urging their justice and the expediency of providing for their settlement. He contended that this was called for in the exercise of good faith towards the Spanish government, which, whatever views we might have entertained with regard to our own title, had always considered us pledged by the treaty of 1819 to recognize and validate her grants, and had expressed very decided complaints at our failure to do so.

Mr. Wickliffe, from the Committee on Public Lands in the House, to whom the secretary's communication was referred, made a report combating its conclusions with great energy:

'Are we to be told' (says the report), 'at this time of day, that our title to the territory between the Mississippi and Perdido was not valid until the treaty of 1819, and that by that treaty we purchased that part of Louisiana by the name of 'all the territories which belong to him (his Catholic Majesty), situated to the eastward of the Mississippi, known by the name of East and West Florida?' What was East and West Florida in 1819? Did it include any part of the territory between the Mississippi and the Perdido? Had not the United States, under and by virtue of the treaty between France and Spain, and between the United States and France, long prior to 1819, taken possession of the same by expelling the Spanish power therefrom? And who doubted, in 1819, her right both of jurisdiction and soil? And who, till now, ever supposed that the United States, by the treaty of 1819, imposed upon herself the obligation to confirm these grants made by Spain in violation of her solemn treaty stipulations? . . . The committee will not do the then administration so much injustice as to suppose they would negotiate a treaty with Spain for the avowed purpose of the acquisition of East and West Florida, in terms designed to conceal the important fact from the Congress of the United States that by said treaty they were bound to confirm claims to near 600,000 acres of land which had, by an act of solemn legislation, been declared null and void, and which originated in a violation of the treaty of St. Ildefonso and of that with France in 1803.'

This extract serves to show the temper with which these claims were viewed at that day by many of our leading statesmen. Of course, no advance was made in their favor on this occasion.

The next case in this court in which grants of land between the Mississippi and Perdido Rivers came in question was Garcia v. Lee, in 1838. The court, in that case, reaffirmed Foster v. Neilson, and held that, as this territory did not belong to Spain after the treaty of St. Ildefonso, but belonged to the United States, according to its construction of the treaty, the Spanish grants therein made after 1800 were invalid, and were not confirmed by the eighth article of the treaty of 1819. Chief Justice Taney, delivering the opinion of the court, said:

'Indeed, when it is once admitted that the boundary line, according to the American construction of the treaty, is to be treated as the true one in the courts of the United States, it would seem to follow, as a necessary consequence, that the grant now before the court, which was made by the Spanish authorities within the limits of the territory which then belonged to the United States, must be null and void, unless it has been confirmed by the United States by treaty or otherwise. It is obvious that one nation cannot grant away the territory of another.'

'In the case before us the grant is invalid from an intrinsic defect in the title of Spain. It is true she still claimed the country, and refused to deliver it to the United States. But her conduct was, in this respect, a violation of the rights of the United States and of the obligation of treaties.'

The court relied on the act of 1804 as giving notice of the determination of the United States to claim the territory and to ignore any grants made therein, except to actual settlers.

In this state of the decisions it was in vain for claimants under these grants to think of resorting longer to the courts of the United States. They, accordingly, again applied to Congress, and on June 17, 1844, procured a law by which the act of May 26, 1824, relating to land titles in Missouri, was extended to Louisiana and Arkansas and the district between the Mississippi and Perdido Rivers, and the District Courts were invested with jurisdiction over land claims originating with either French, Spanish, or British authorities. This act authorized any person claiming land by virtue of any French or Spanish grant, concession, warrant, or order of survey legally made or issued before the 10th of March, 1804, which was protected or secured by the treaty with France of April 30, 1803, and which might have been perfected into a complete title had not the sovereignty been changed, to present a petition to the District Court stating the case, and have the claim adjudicated upon and settled according to the law of nations, the stipulations of any treaty, the acts of Congress, and the laws of the former government, subject to an appeal to the Supreme Court of the United States. A number of suits for lands in the disputed district were soon after commenced in the District Court; amongst others, one by the heirs of John Lynde for the tract in question in this case. But the claimants were still unsuccessful in this court.

The first case reported is that of United States v. Reynes. It was a case precisely like the one now before the court, and was rejected on the ground that the act of May 26, 1824, related to inchoate and incomplete titles, and was intended to give a means of completing them. The court reaffirmed Foster v. Neilson, and held that Spain could not make any valid grant in the disputed territory after the treaty of St. Ildefonso, and that the act of March 26, 1804, which had never been repealed, had pronounced all such grants void. The court adhered to the same views in United States v. D'Auterive, United States v. Philadelphia and New Orleans, Montault v. United States, United States v. Castant, and a number of other cases in the same term, including the case now before the court. These cases were decided in 1852.

In view of this long course of decisions, all to the same purport, it must be considered as judicially settled in this court that Louisiana, as ceded to the United States in 1803, embraced the territory between the Mississippi and Perdido Rivers, and that our government had a perfect legal right, whatever may have been its moral or honorary obligations, to ignore all grants made by the Spanish authorities after the treaty of St. Ildefonso went into effect. It must also be regarded as judicially settled that the treaty of 1819 confirmed grants of land made in the Floridas, east of the Perdido, but not those made to the west of that river, unless made to actual settlers or made before the treaty of St. Ildefonso went into effect. If the political departments of the government felt bound, from considerations of honor and good faith, or from motives of conciliation and policy, to give effect to any other grants, it was for them to do so.

This is what the claimants insist has been done.

But that the government of the United States has always continued to insist upon its own construction of the treaties, whenever they are referred to as matter of right or historic derivation of title, is manifest, among other things, from the act admitting Florida into the Union as a State, passed so late as March 3, 1845, by which the boundaries are fixed as follows:

'Said State of Florida shall embrace the territories of East and West Florida, which, by the treaty of amity, settlement, and limits between the United States and Spain, on the 22d day of February, 1819, were ceded to the United States.'

It is well known that Florida, as thus limited, extended only to the Perdido River, all the territory west of which had long previously been assigned to the States of Louisiana, Mississippi, and Alabama, which were respectively admitted into the Union, with their present boundaries, in 1812, 1817, and 1819.

It is evident, therefore, that the case of the claimants, if it can stand at all, must stand on the voluntary bounty of our government, exerted through its legislative department. And the question in this case is, whether that bounty has, in fact, been exerted.

After the unsuccessful attempt made in the courts, as last referred to, under the Missouri act of 1824, the subject was again brought to the attention of Congress in May, 1858. Mr. Benjamin, who had been counsel for the claimants in the last cases, made a report to the Senate as chairman of the Committee on Private Land Claims, and submitted a bill for the relief of the claimants. This report contained a very full history of the treaties and litigation, giving a favorable view of the Spanish side of the question. Suffice it to say, in consequence of this report, Congress passed the act of June 22, 1860, entitled 'An act for the final adjustment of private land claims in the States of Florida, Louisiana, and Missouri, and for other purposes.' This act provides that any person claiming lands in Florida, Louisiana, or Missouri, by virtue of grant, concession, or warrant of survey emanating from any foreign government prior to the cession of the territory to the United States, or during the period when any such government claimed sovereignty, or had the actual possession of the district or territory in which the lands claimed are situated, shall be authorized to make application for the confirmation of his title in the manner pointed out in the act, which appoints commissioners to hear and determine the applications, and to make report to the commissioner of the land office. This officer, if he approves, is to report the same to Congress for its action and final decision thereon; and it is provided that if the lands, or any of them, have been sold by the government, or cannot be surveyed and located, the claimant, if his title be confirmed, shall have the right to enter a quantity equal in extent to the lands thus sold, upon any of the public lands of the United States, subject to private entry at one dollar and twenty-five cents per acre.

By the eleventh section it is provided, that where the lands claimed have not been in possession of and cultivated by the claimant for the period of twenty years, and where the lands are claimed by complete grant or concession, &c., made prior to the cession of the territory to the United States, or where such title was created and perfected during the period while the foreign government from which it emanated claimed sovereignty over or had the actual possession of such territory, the claimant may, at his option, instead of submitting his claim to the commissioners, proceed, by petition, in the proper District Court of the United States, subject to appeal to the Supreme Court, whose decision is to be final; and if the claim be sustained, a patent is thereupon to issue for so much of the lands claimed as remained unsold, and for so much as may have been sold the claimant is to have the right to enter an equal quantity upon the public lands, as before stated.

That the object of this act was to confirm the grants in question seems hardly to admit of a doubt. It is true, that in prescribing the powers and duties of the special commissioners and the courts to whose decision the applications were to be referred, it is provided that they shall decide thereon according to equity and justice. But it can hardly be contended, especially in view of what has already been said, that Congress meant by this language to authorize the said commissioners and courts to review the entire subject, and to decide what our government ought to have done with regard to these grants. It could not have been the intention to throw the whole discussion open, from the treaty of St. Ildefonso down to the present time, and to confer upon the tribunals named in the act the power which properly belonged to the political department of the government, and to impose upon them the duty of declaring what the policy of the government should be; or to leave it to their, perhaps varying, judgments what was the true intent and meaning of the original treaties. That could not have been the design of Congress. The act authorizes the claimants to present their claims for confirmation; and although it does not, in so many words, say that grants made by foreign governments, while in possession of the territory and claiming sovereignty over it, if complete, regular, and fair, shall be sustained; yet that is the unavoidable inference to be derived from its language, and from the events and course of decisions out of which it arose. And although it does not expressly repeal that part of the act of March 26th, 1804, which declared void all grants of land within the ceded territories made after the date of the treaty of St. Ildefonso; yet its provisions, in order to have any effect at all, must be regarded as irreconcilable with that clause of the act of 1804, and, consequently, as repealing it by implication.

We cannot avoid the conclusion, therefore, that the act of June 22d, 1860, was intended to validate all grants which were made by the Spanish government to bon a fide grantees of lands in the disputed territory whilst the government remained in possession of the territory and claimed sovereignty over it, subject, of course, to the express exceptions of the treaty of 1819, and the supplementary declaration of the King of Spain finally annexed thereto.

What range of discretion was intended to be conferred upon the special commissioners and the courts by authorizing them to decide according to the principles of equity and justice, is, perhaps, not entirely clear. The probable meaning is, that these principles are to be applied to each particular case. If it should appear that a grant was obtained by fraud, or was affected by any other special vice, it would be the duty of the tribunals to reject it. Or, if it should appear that a claim was honest and meritorious, but defective in point of form or completeness, it might be the duty of the tribunals to sustain it as an equitable, if not a strictly legal title.

This view of the subject relieves us from the ungracious task of construing treaties, and reviewing the conduct and policy of the government. Congress, by the act of 1860, has declared its own policy, and has left us simply the office of judicially carrying out its enactments in individual cases as they come before us. Congress has laid down the general rule by placing the grants in question on a platform of equality with grants made by our own government, and has left to the tribunals the duty of examining the merits of particular applications.

An examination of the case before us shows that the grant to John Lynde was made in due form and after regular surveys; and that the consideration was duly paid to the Spanish government. Nothing has been developed in the case which goes to assail to bon a fides of the transaction, unless it be the fact of obtaining the grant from Morales (who was Lynde's father-in-law) after the treaty of cession, and when it was known that the United States claimed the territory. But as this can be said of all these grants, and was one of the considerations that must have been patent to the mind of Congress when it enacted the law of 1860, we must presume that it was waived by that body, and has ceased to be a valid ground of objection.

DECREE AFFIRMED.

Mr. Justice CLIFFORD dissented from the decree, upon the ground that the act of Congress in question did not confirm any claim previously adjudged void by the Federal courts in pursuance of a prior act of Congress conferring jurisdiction to hear and determine the controversy.


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


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United States v. Wright (78 U.S. 648)

ERROR to the Circuit Court for the Middle District of Tennessee.

This was an action by the United States against a principal and his sureties on a postmaster's bond. At the trial, the defendants claimed, by way of set-off, under the 5th section of the act of March 3, 1863, certain credits which were proved to have been presented by the postmaster to the department and disallowed. The section mentioned provides:

'That whenever, by reason of the presence of a military or naval force near any post-office, unusual business accrues thereat, the Postmaster-General is hereby required to make a special order allowing proportionately reasonable compensation to the postmaster, and for clerical services, during the period of such extraordinary business.'

Testimony was admitted as to the presence of United States military forces near the office of the postmaster during the term to which his claim related, and the court charged the jury that 'if they were satisfied that, owing to the presence of such forces near said office, during said time, an increased amount of business had been occasioned, it would be proper for them to inquire as to what clerical assistance, if any, was rendered necessary thereby, and to allow said postmaster as a credit the fair compensation for such necessary clerical assistance.'

The question was, the correctness of this charge. It depended, of course, upon the construction to be given to the 5th section above quoted of the act of March 3, 1863.

It is necessary to state that by the 9th section of the act of July 5, 1836, which prescribes the general duties of the Postmaster-General, that officer is, among other things, required

'To control, according to law,. . . the allowances to postmasters, the expenses of post-offices, and other expenses incident to the service of the department; to regulate and direct the payment of the said allowances and expenses for which appropriations have been made,' &c.

Mr. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-general, for the United States. No opposing counsel.

Mr. Justice DAVIS delivered the opinion of the court.

title: United States v. Wright (78 U.S. 648)


text: Talk:United States v. Wright (78 U.S. 648)


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United States v. Wright (78 U.S. 648)/Opinion of the Court

The instruction given by the learned judge who tried the case was clearly erroneous, for it referred to the jury a matter which, under the law, rested wholly in the discretion of the Postmaster-General. The act of March 3, 1863, which embraces the section upon whose construction the disposition of the case depended, effected great changes in the administration of the post-office department, but it did not take from the Postmaster-General the right to control and regulate the allowances to postmasters and the expenses of their offices, which was conferred by the 9th section of the act of July 5, 1836. Indeed, it would seem that the general power granted by that section was sufficient to meet the exigencies provided for by the fifth section of the act of March 3, 1863, but be this as it may, the latter section did nothing more than to require the Postmaster-general, in case the business of a particular post-office was considerably increased, on account of the location of the national forces in its vicinity, to compensate the postmaster for the extra labor performed and the additional expenses incurred.

The section did not go further and prescribe rules to govern the action of the Postmaster-General, nor did it seek to interfere with the judicial discretion of that officer. Congress constituted him the sole judge to determine not only whether the exigencies in the case had arisen, but if they had, the manner and extent of the allowance, and it is not competent for court or jury to revise his decision, nor is it re-examinable anywhere else, as there is no provision in the law to that effect. It may be safely laid down as a general rule, says Story, Judge, 'that where a particular authority is confided to a public officer to be exercised by him in his discretion, upon an examination of facts, of which he is made the appropriate judge, his decision upon these facts is, in the absence of any controlling provisions, absolutely conclusive as to the existence of those facts.' #fn-s-s-s

JUDGMENT REVERSED, AND A VENIRE DE NOVO AWARDED.


text: Talk:United States v. Wright (78 U.S. 648)/Opinion of the Court


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Mann v. Rock Island Bank

APPEAL from the Circuit Court for Wisconsin.

The Rock Island Bank filed a bill in chancery in the Circuit Court below against one Mann and his wife, setting forth in a full and minute way its history of certain irregular transactions by Mann, as agent and cashier of the bank, which he had been, at one time, though he had ceased to be so several years previous to the filing of the bill. The bill charged that Mann had defrauded the bank of $20,000, and that the money itself, or the property in which it had been invested, had been converted into certain real estate, the legal title of which then stood in the name of his wife, and it prayed for a decree against Mann for the $20,000, with interest, and against him and his wife, that the real estate might be subjected to the payment of the debt.

The defendants answered with similar fulness and minuteness, and issue was joined; the questions involved being questions of pure fact without any question of law whatever. Much testimony was taken, and a decree rendered that Mann was liable for the money, and that the real estate should be sold to pay it. This decree was carried into effect by a sale of the property, and about four years after the defendants prayed an appeal to this court. The case was accordingly brought here: the transcript of the record filling a volume of not far from two hundred closely-printed pages.

Mr. Thomas Wilson, for the appellant.

No counsel appeared for the bank; which apparently considered the appeal as made without hopes of reversal.

Mr. Justice MILLER delivered the opinion of the court.

title: Mann v. Rock Island Bank


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Page:A short history of social life in England.djvu/63

Rh freely played; played often far into the night, when the dim hall was lit only by rushes smeared in fat, for high stakes involving loss of land and even of personal liberty.

Our forefathers loved practical jokes, many of which savour of barbaric cruelty. To tie thorns or prickles under the tail of a horse and set thereon a timid rider afforded them untold mirth, as did also the discomforting process of binding a man and chopping off half his long hair and beard, the pride and joy of his position of a freeman as opposed to that of a slave. The life of a wayfarer must have assumed new terrors by the knowledge that at any moment a band of facetious merrymakers might pounce on him, strip him of his clothes, dip him in hot pitch, and roll him in feathers!

The clothes of these days were very simple. Long white linen tunics with loose sleeves, girdled in at the waist, were worn by all alike, from slave to chief. Over this men and women wore a short cloak, while, in addition to and below these garments, the women wore a long gown reaching to the feet. No one went barefoot in Anglo-Saxon days; all wore shoes and stockings, though the latter more resembled the


text: Talk:Mann v. Rock Island Bank

title: Talk:Mann v. Rock Island Bank


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Mann v. Rock Island Bank/Opinion of the Court

As no counsel appeared in this court for the Rock Island Bank, we have been compelled to make a minute and careful analysis of the whole record. It turns in every point upon simple questions of fact. There is not a doubtful question of law involved in the entire record. That this court should be compelled to undergo the labor of finding the truth in such a mass of testimony, a duty much more appropriate to a master, or to some other tribunal than this, and which in common-law cases is peculiarly the province of the jury, is itself a hindrance and obstruction to public justice by the delay which it interposes to the hearing of other cases. We do not feel that this burden should be further increased, and the time of this court, due to other parties and to more important interests, be consumed in writing and delivering opinions which, if they attempt to go into examination of the facts to justify the decision of the court, will be equally tedious and useless.

[The learned justice, without going, in the opinion delivered, into analysis or argument, then stated in a general form, and by way of result, the history of Mann's transactions while cashier and agent of the bank, as the court considered that the same appeared on the evidence; adding that it seemed pretty clear to this court that a certain $20,000 of which Mann had defrauded the bank did become real estate, which was now held in the name of his wife, and announcing in conclusion that as the decree of the court below was founded upon that same view of the case, it was affirmed.]

DECREE ACCORDINGLY.


text: Talk:Mann v. Rock Island Bank/Opinion of the Court


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Henderson's Tobacco

In error to the Circuit Court for the District of Iowa.

This was an information under the act of July 20, 1868, entitled 'An act imposing taxes on distilled spirits and tobacco, and for other purposes,' to enforce a forfeiture, under the revenue laws, of certain caddies of tobacco which had been seized on the 17th of August, 1869, and which were claimed by Henderson & Co. The information contained three counts. The first was, in substance, that since the first day of January, 1868, to wit, from January 1, 1868, to August 17, 1869, the claimants, being the owners of a tobacco factory, with its furniture, manufactured, prepared, and placed in caddies, manufactured leaf tobacco, and sold and removed the same without placing on the caddies the proper revenue stamps, and without having paid the special tax required by law; but that they did place on the caddies of tobacco so manufactured and so sold and removed, half stamps, that is to say, revenue stamps cut in two parts, each part of said stamps being used on separate caddies, and each half stamp so covered by a whole stamp as to make the half stamp so used resemble and be taken for a whole stamp. The second count was for substantially the same offence. The third was for making false and fraudulent entries of the amount of tobacco sold by them annually, and false and fraudulent entries of the quantity manufactured by them, and false and fraudulent reports of their annual sales, in violation of their duty under the law.

The claimants pleaded to this information that it was not filed until more than twenty days after the caddies had been seized by the collector for the alleged violations of law. To the plea there was a demurrer, which was overruled by the court and the information was dismissed. The record was, therefore, supposed to present the question whether proceedings to enforce a forfeiture for such violations of the revenue laws as were charged in the information must be commenced within twenty days from the time of the collector's seizure, and this was the only point argued. The claimants, in support of an affirmative answer to this question, relied upon the proviso to the 25th section of the act of Congress of March 2, 1867, entitled 'An act to amend existing laws relating to internal revenue, and for other purposes.' This 25th section enacted that the owner, agent, or superintendent of any still, boiler, or other vessel used in the distillation of spirits, who should neglect or refuse to make true and exact entry and report of the same, or to do, or cause to be done, any of the things by law required to be done concerning distilled spirits, shall, in addition to other fines and penalties by law provided, forfeit for every such neglect or refusal all the spirits made by or for him, and all the vessels used in making the same, and the stills, boilers, and other vessels used in making the same, and all materials fit for use in distillation found on the premises. It also authorized the collector to seize such spirits, vessels, and materials, and hold them until a decision thereon according to law. Then followed this proviso:

'Provided, that proceedings to enforce said forfeiture shall be commenced by such collector within twenty days after the seizure thereof; and the proceedings to enforce said forfeiture of said property shall be in the nature of a proceeding in rem in the Circuit or District Court of the United States for the district where such seizure is made, or in any other court of competent jurisdiction.'

The 9th section of the same act enacted that 'all proceedings relating to forfeiture and sale of distilled spirits shall apply to tobacco, snuff, and segars.'

In answer to this it was contended, on behalf of the United States, that the proviso relied upon by the claimants was repealed by the act of July 20, 1868. It was admitted that the act of 1868 contained no words expressly repealing either the act of 1867 or that of 1864, to which the one of 1867 was a supplement; but the argument was that it covered the ground of the preceding statute, and that no limitation was contained in the latter statute with regard to the time in which the proceeding of forfeiture shall be commenced.

There was no doubt that the latter act did change numerous provisions of the former act, and in so far cover its ground. In the sections under which this information was filed there were provisions for the punishment of persons manufacturing tobacco or snuff in violation of the internal revenue laws not in the former acts, and which did not make reference to the proceedings for the punishment of the illegal manufacture of distilled spirits.

The act of 1868 repealed in terms 'all acts and parts of acts inconsistent' with its own provisions; enacting, however,

'That all the provisions of said act shall be in force for levying and collecting all taxes properly assessed, or liable to be assessed, or accruing under the provisions of former acts, the right to which has already accrued or which may hereafter accrue under said acts, and for maintaining, continuing, and enforcing liens, fines, penalties, and forfeitures, incurred under and by virtue thereof. And this act shall not be construed to affect any act done, right accrued, or penalty incurred under former acts, but every such right is hereby saved; and all suits and prosecutions for acts already done in violation of any former act or acts of Congress relating to the subjects embraced in this act may be commenced or proceeded with in like manner as if this act had not been passed.'

This section, it was considered by the government, indicated the broad extent to which the former revenue acts had been revised by the act of 1868, so that Congress considered that penalties under them would be lost without such a saving clause.

There was, however, nothing in the act of 1868 regulating or defining in any way the manner of proceeding in cases of forfeiture, and unless certain of the provisions of the previous acts were to be regarded as still in force, there was left apparently no guide, nor statute now in force, in important parts of the revenue practice. These were set forth in different sections among the first fifty-two of the act of 1864; amended by acts of 1866 and 1867. So section 3d of the act of 1867 provided certain rules under which district attorneys were to report certain things to the Commissioner of Internal Revenue. Section 4th placed under the control of the commissioner real estate acquired by the United States under the revenue laws. Section 7th authorized the commissioner to appoint detectives, &c., while section 8th provided a penalty for failure to pay tax when due. No provisions were made on the subject of these sections in the late act.

Mr. B. H. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, for the United States; Messrs. McCrary, Miller, and McCrary, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Henderson's Tobacco


text: Talk:Henderson's Tobacco

title: Talk:Henderson's Tobacco


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Henderson's Tobacco/Opinion of the Court

It is contended, on behalf of the United States, that the proviso relied upon by the claimants was repealed by the act of July 20, 1868.

If this is so, it was a repeal by implication only. That act contains no words expressly repealing either the act of 1867 or that of 1864, to which the one of 1867 was a supplement. On the contrary, the repealing clause, which it does contain, indicates plainly the intention of Congress to leave in force some portions of former acts relative to the same subjectmatter. The 105th section enacts, 'that all acts and parts of acts inconsistent with the provisions of this act are hereby repealed.' This is an express limitation of the extent to which it was intended former acts should cease to be operative, namely, only so far as they are inconsistent with the new act. It is quite inadmissible to engraft upon this express declaration of legislative intent an implication of more extensive repeal. Statutes are, indeed, sometimes held to be repealed by subsequent enactments, though the latter contain no repealing clauses. This is always the rule when the provisions of the latter acts are repugnant to those of the former, so far as they are repugnant. The enactment of provisions inconsistent with those previously existing, manifests a clear intent to abolish the old law. In the United States v. Tynen, it was said by Mr. Justice Field, that 'when there are two acts upon the same subject, the rule is to give effect to both, if possible. But if the two are repug nant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first; and even where two acts are not, in express terms, repugnant, yet, if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.' For this several authorities were cited, some of which have been cited on the present argument. This is, undoubtedly, a sound exposition of the law. But it must be observed that the doctrine asserts no more than that the former statute is impliedly repealed, so far as the provisions of the subsequent statute are repugnant to it, or so far as the latter statute, making new provisions, is plainly intended as a substitute for it. Where the powers or directions under several acts are such as may well subsist together, an implication of repeal cannot be allowed.

If now, in the light of these principles, the act of July 20, 1868, be examined and compared with the acts of 1864 and 1867 (the latter being an amendment of the former), there will be found in it nothing inconsistent with the authority given by the amended act of 1867 to the collector to seize and hold property subject to forfeiture, or with the proviso that directs the mode of procedure to enforce forfeitures, designates the courts in which proceedings may be instituted, and limits the time within which they may be commenced. It cannot be said that all the powers and limitations mentioned in the proviso may not subsist in entire consistency with everything prescribed in the act of 1868. Undoubtedly, that act was intended to be a revision of former acts relative to spirits and tobacco. And in some particulars it made changes. It introduced new provisions respecting the mode of paying the tax on spirits and tobacco, and it prescribed some new penalties for new offences, but it made no provision respecting the mode of enforcing penalties and forfeitures. It cannot, therefore, have been intended as a complete substitute for all former acts relative to its subject. There are many provisions of the acts of 1864 and 1867 which it left untouched and unsupplied. Indeed, the first fifty-two sections of the act of 1864, amended as they were by the acts of 1866 and 1867, without which the revenue laws cannot be executed, are not attempted to be supplied. There is, therefore, no reason for holding that any other provisions of the acts of 1864 and 1867 have been repealed than such as are plainly inconsistent with the provisions of the act of 1868. There is nothing in this latter act repugnant to the proviso upon which the claimants rely.

But the proviso of the 25th section of the act of 1867, which limits to twenty days the time for commencing proceedings to enforce forfeitures, has no application to any other forfeitures than such as are provided for in that section. Those are, as we have seen, forfeitures for neglect or refusal to make certain true and exact entries and reports, and forfeitures for neglect or refusal to do any of the things by law required to be done concerning distilled spirits (or tobacco). They are forfeitures for acts of omission or neglect. To proceedings to enforce them, the limitation was applied. It was made applicable to no other. The proviso speaks of proceedings to enforce said forfeiture, and plainly contemplates no seizure or forfeiture for any different offence than those previously mentioned in the section. This information is founded upon no such neglect or refusal. The forfeiture claimed is for affirmative acts of the claimants; for active offences first made grounds of forfeiture by the act of 1868. Each count charges positive fraud-the first and second, fraudulent use of stamps, unknown under the act of 1867; and the third count charges fraudulent entries and fraudulent reports. It may well be that a distinction was intended to be made. Passive violations of law, mere neglect, may have been regarded less culpable than active transgression. All the causes of forfeiture enumerated in the sixty-ninth section of the act of 1868, upon which all the counts in the information are based, are of the latter character. We cannot hold, therefore, that the limitation of the proviso to the 25th section of the act of 1867, which the claimants have pleaded, is any protection to them. It follows that the judgment of the Circuit Court dismissing the information must be reversed.

REVERSED, AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS.


text: Talk:Henderson's Tobacco/Opinion of the Court


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Cook v. Burnley (78 U.S. 659)

ERROR to the District Court for the Eastern District of Texas, in a suit brought by Burnley and Porter against Cook, Eller, Elam, and several others. The case was thus:

Along the coast of Texas, small tide-water bayous, or inlets, extend from the Gulf of Mexico, and from larger bays or inlets like that of Matagorda, into the land. They frequently connect with each other, and with the gulf or bays, by other and similar channels. Being surrounded in many states of the tide, and sometimes in all, by a thread of water, they may, in one sense, be called 'islands;' but lying as they nearly all do within the regular profile of the coast, and entitled to an insular name only by some depression in the original soil, which has invited the ebb and flow of the water in that direction, they can hardly be regarded as coming within the meaning of 'islands' in that sense which has in most of our States made islands a sort of soil excepted by their governments from ordinary grants of soil; or in any sense which would exclude them from a grant of land on the coast generally. In this state of the physical form of the coast, Burnley and Porter brought suit against Cook and others to recover a league of land situate on the western shore of Matagorda Bay, near the mouth of the river Lavaca, in Calhoun County, Texas. The parcel in immediate controversy lay north and adjoining Powderhorn Bayou, and comprised one hundred and seventy-nine acres. A part of the defendant's defence was based on the assumption that a portion of what the plaintiffs claimed was an island.

Having pleaded the general issue and the statute of limitations, and it being agreed by writing that under the general issue the defendant might prove every fact which he could under a special plea, the defendants put in, without verification by affidavit, a plea in abatement, alleging the pendency of a suit commenced in a State court of Texas, by Burnley and one Jones as plaintiffs, against the present defendant, Cook, and others; not all of them, however, the same persons as the defendants here. The suit in the State court, as the plea represented, set forth title to the same league of land as was now sued for; the laying out of a town site thereon, the location thereon by Cook of a land certificate for three hundred and twenty acres, the commencement of a rival town enterprise, acts of trespass and waste, and it prayed an injunction, which was obtained; also damages $10,000, and general relief. The court below struck out this plea in abatement on the ground, 1st, that it was filed after answer to the merits; 2d, that it was not verified by affidavit; 3d, that it was not sufficient in law.

The case being called for trial, the defendant, Cook, applied for a continuance, on the ground of the absence of a witness; he having previously obtained one continuance on affidavit, and having agreed to a peremptory order of trial. The application was overruled.

After this he moved for a change of venue, supported by an affidavit setting forth certain statements with reference to himself, in a publication alleged to have been made by the judge of the court below; his belief that the judge had prejudged his cause; and that he could not obtain a fair and impartial trial. This motion was made under the act of March 3, 1821, providing that 'in all suits and actions in any District Court of the United States in which it shall appear that the judge of such court is in any way concerned in interest or has been of counsel for either party, or is so related or connected with either party as to render it improper for him, in his opinion, to sit on the trial of such suit or action, it shall be his duty, on application of either party, to cause the fact to be entered on the records of the court,' and also an order certifying the case for trial, &c. The court overruled this motion.

The case then proceeded to trial. The title of the plaintiffs was based on the colonization laws of Mexico, under which Martin De Leon established a colony in Texas with power to grant titles. This title came more immediately from Juan Cano, a colonist in this empressario grant, and under a conveyance from the commissioner of De Leon, April 11th, 1835. Under this same settlement of De Leon grants similar to the present one had been made adjoining this one to one Benito Morales, and on a suit by this same plaintiff, Burnley, and one Jones, against the same Cook who was the principal defendant here; which suit came finally before this court in the case of White et al. v. Burnley, several years ago. The land, in this present grant to Cano, was described as situated on the western bank of the Mother Lake (Laguna Madre) of Matagorda, commencing at a stake that stands upon the deep brake of said lake, and after being carried by courses and distances around three sides, to a point where a stake was driven in the deep brake of the said lagoon, for the fourth and last landmark,. . . followed the bends of the lagoon to the place of beginning. It was represented as containing forty-six millions of square varas. Appended to this grant was a plot or diagram.

The plaintiffs then made title from Cano to one L. Manso, and by deed, dated in Louisiana, April 6th, 1836, from Manso to one Grayson. At the time when this last deed was made, Texas, then an independent republic and not yet a State of the American Union, was at war with Mexico. Manso had been long resident at one time in Mexico, but whether ever a citizen of it was not so clear. He was a native of Spain, and at the time of this grant was temporarily resident in Louisiana, having been expelled from Mexico under some laws driving away Spaniards, and was purposing to go to Texas when its war with Mexico should be ended.

The defendants objected to the reading of the grant from De Leon to Cano, because the title had not been recorded in the county where the land was situate, and neither recorded nor deposited in the general land office of Texas. The ground of the objection apparently was, that the legislature of Texas had by statute enacted, on the 20th of December, 1836, that any person owning lands should, within twelve months, have his titles proved in open court, and recorded in the county where the land lies; and that no deed should affect the rights of third parties unless proven and recorded. And that on the 14th of December, 1837, it was further enacted that it should be the duty of every person having titles to deposit them in the general land office within sixty days.

It was shown, however, by the testimony of one Edward Linn, who had been surveyor of the Victoria district (where these lands lay), from 1838 to 1840 and from 1847 to 1854, when examined, that he had made a connected map of a survey in that district and deposited it in the general land office in 1838, and that the head-right lease of Cano, whom he knew, and knew to be a colonist in the colony of Martin De Leon, along with head-right leases of other colonists, including Manso, already named, and one Benito Morales, with all the lands titled by the commissioner who had made this grant, were laid down on this map, and that Cook, when he made his location on the head-right leases, knew of these 'colonial titles.'

To the reading of the deed from Manso to Grayson the defendants also objected, because at the time of making it Manso was an alien enemy to Grayson, his grantee. The court overruled both the objection to De Leon's deed, and that to the deed of Manso, and both deeds were read.

In the course of the trial, and coming to the defendants' case, the defendants offered to read a deposition of one H. Beaumont, taken de bene esse, under the thirtieth section of the Judiciary Act. This section provides that the witness 'shall subscribe the testimony by him or her given after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence.' There was no certificate here by the magistrate that he reduced the testimony to writing himself, or that it was done by the witness in his presence.

Proceeding further, the plaintiff having on his side shown residence of their tenants on the lease from the spring of 1848 to the time of trial, the defendant sought to show by the deposition of certain persons, named respectively Moore, Schwatz, and Howeston, that tenants of Cook had been in possession of that same place from a date which countervailed the plaintiff's evidence. The depositions ran thus in the case of each witness respectively:

'Witness knows that Cook and his tenants have had continuous possession of said land since the fall of 1849 to the present time.' 'Since fall of 1849, Cook, by his tenants and those holding under him, has had continuous possession of said land; said possession he knows to have been continuous.' 'As the tenant of Cook, as witness understood, that witness knows that said Cook, by himself and his tenants, held possession continuously ever since May or June, 1850.'

These statements were ruled out by the court, on the objection of plaintiff: 1st, that they were conclusions of law, and not matters of fact; 2d, that they were loose and indefinite, without the names of persons, and without dates or times, or any statement of the facts which in their mind constituted tenancy and possession. Facts stated by the witnesses, showing the names of the witnesses, the time when they came and when they went, were let in. Subsequent depositions of the same witnesses, taken on notice and cross-examination, were read.

The defendants, who asserted that their land was an island, and not capable of having been granted under De Leon, claimed under title from the State of Texas in favor of Cook, one of the defendants. This title was not disputed except as it was asserted to embrace lands claimed by the plaintiffs as within the earlier grant to Cano. The defendants' title as made out without the rejected depositions was as follows:A certificate for 960 acres of land, issued to one Gwartney, December 15th, 1837. Conveyance of same by Gwartney to Cook, December 16th, 1837. A survey of 179 1/2 acres of land north of Powderhorn Bayou, with 1100 varas front on the bay, by virtue of said certificate, made May 15th, 1850. Location of this certificate as follows:

'LOCATION NO. 339, January 5th, 1847.

'To the County Surveyor of Victoria County:

'Will please survey 320 acres on bounty warrant No. 990, on Matagorda Bay, at the mouth of Powderhorn Bayou, on the northwest side; thence up the bay and back for quantity.

'W. M. Cook.'

This was set up as a location of the 179 1/2 acres of land to the date, and as sustaining the plea of limitation from January 5th, 1847.

Next a patent for said 179 1/2 acres of land, issued May 16th, 1857.

The plaintiffs, on the other hand, to show that Cook had abandoned his location of the Gwartney certificate of January 5th, 1847, proved a location made by Cook, as follows:

'Location, No. 429, Sept. 12, 1849.-W. M. Cook locates land warrant, No. 5072, issued to J. A. Wells, for 320 acres of land, commencing at the east corner of a survey made for D. N. White, on the southwest side of Matagorda Bay; thence down the bay to Powderhorn Bayou; thence up the bayou and back, for quantity.'

They proved, also, a survey of the same 179 1/2 acres north of Powderhorn Bayou, made by the said Cook, by virtue of land certificate to Wells, May 15, 1850, recorded on the 29th same month; and that on the 13th January, 1851, by the direction and request of said W. M. Cook, the field notes and survey of this 179 1/2 acres were altered and transferred to the land warrant 990, the Gwartney certificate.

As the reader will have perceived, one of the defendants' defences was, the plaintiff's grant did not embrace within its legitimate boundaries the land which Cook had located on, and which the defendants were now claiming. To show the reverse of this and the true designation and character of the land granted, the plaintiffs relied on the diagram or plot attached to their grant, and forming part of their testimonio of title, as the evidence of the original survey. On a suit which had taken place about the land in the State courts, Beaumont, already mentioned, had been directed by the court to make a survey, according to the courses, distances, and landmarks of the original survey. Field notes were furnished him by the court. He did make the survey from the field notes so furnished, and returned the land as containing 48,665,450 square yards, or 8613 3/4 acres; much more than a league; but another person, a civil engineer, named Thelipapa, made the map. This he made from field notes furnished him by Beaumont. But these were different from those accompanying the order of survey. The last specified distances and the corners of the league. The former gave distances only. Made by the corners, more than a league was included, and the case of the plaintiffs was strengthened.

The law under which the original survey was made apparently required the course of the lines to be by the magnetic needle. From the only testimony on the point, the survey of Beaumont was by the true meridian; and by comparing and platting the two maps, it was apparent that their meridians were different.

The defendants asked the court to give these instructions to the jury:

'1st. If Manso was an alien enemy at the time he executed the deed to Grayson, he conveyed no title through which plaintiff can recover.

'2d. If plaintiff's title was not on record in the county where the land lies, or in the general land office, at the time defendant located his land warrant, and completed his survey and obtained his patent, he is in the position of an innocent purchaser, and entitled to recover.

'3d. If the plaintiff's title includes an island surrounded by tide water, it is bad as to the island.

'4th. If the jury, from the evidence, can fairly and justly construe both the plaintiff's and defendant's title so that both can stand, it is their duty to do so.'

The court refused to give any one of these instructions, and gave none but this:

'The diagram or plot attached to the plaintiff's grant is evidence to show the designation and character of the land granted, and may be used by the jury for its shape and boundaries. It appears to have been surveyed by magnetic courses, and if the survey returned by Beaumont was not surveyed by the magnetic but the true course, the jury must allow for the difference, and Beamont's cannot be regarded as showing the original survey. The fourth call is from the end of the third line with the bend of the Layuna Madre of Matagorda to the beginning.'

Verdict and judgment having gone for the plaintiffs, the defendants brought the case here; where it was submitted by Mr. Merriman, for the plaintiff in error; and by Messrs. Adams and Ballinger, contra.

Mr. Justice NELSON delivered the opinion of the court.

title: Cook v. Burnley (78 U.S. 659)


text: Talk:Cook v. Burnley (78 U.S. 659)

title: Talk:Cook v. Burnley (78 U.S. 659)


text:
Cook v. Burnley (78 U.S. 659)/Opinion of the Court

The plaintiffs derived their title in this case from Juan Cano, a colonist, in the empressario grant of Martin De Leon, and to whom the commissioner of that colony conveyed the league of land on the 11th of April, 1835.

Several objections are taken to this deduction of title, but it is not material to notice them particularly, as they were before the court in the case of White et al. v. Burnley, already reported, in which these several objections were overruled. The only difference between that case and the present is, that the plaintiffs, Burnley and Jones, there claimed under a deed by the commissioner to a colonist by the name of Benito Morales for a league of land lying on the Matagorda Bay, north and adjoining this grant to Cano. Both these colonists conveyed to Leonardo Manso, one on the 27th, the other on the 20th May, 1835, from whom the present plaintiffs derived title to both tracts. Porter, in the present suit, represents the interests of Jones in the former, and Cook, the principal defendant in this, was a defendant in that one. We find no question here, as it respects the deduction of title under the grant of the commissioner, but what was taken in the former case, fully considered and overruled. White, one of the defendants there, and who is a defendant here, set up title under a land warrant, which he had located within the boundaries of the grant to Morales, and, besides his objections to the deduction of the plaintiffs' title, relied on adverse possession of three years under the junior title. In the present case, Cook sets up a like defence under the location of a head-right and survey, which is within the boundaries of the grant to Cano.

Among other defences relied on in the present case, not in the former, is a plea in abatement of a suit, commenced by Burnley & Jones, against certain defendants, for the same cause of action, including the defendant Cook, in the District Court for the County of Calhoun. This plea was stricken from the record on the ground that it was put in after the defendants had pleaded to the merits, upon general principles, and came too late. And, further, that if it had been pleaded in season it would have constituted no bar to the suit in this court. It also appears that the parties to the suit in the State court were not the same as in the present case.

The defendants, in the course of the trial, offered in evidence the deposition of H. Beaumont, taken under the 30th section of the Judiciary Act, which was objected to and excluded. There is no certificate by the magistrate that he reduced the testimony to writing himself, or that it was done by the witness in his presence, which omission is fatal to the deposition.

The following portions of the depositions of Moore, Schwartz, and Howeston were excluded, on objections taken by the court. The testimony had reference to the possession of the locus in quo.

'Witness knows that said Cook and his tenants had continued possession of said land since the fall of the year 1849, or early part of the winter of 1849-50; say December, 1849, and down to the present time.'

This is in the deposition of Moore; the portions of the testimony of the other two are substantially the same. The depositions had been taken de bene esse, without notice, in December, 1852. In January following the depositions of these same witnesses were taken on notice to the plaintiffs, and these were given in evidence by the defendants.

On looking at the testimony in the first depositions, it will be seen that the witnesses had testified to the fact of the possession of Cook, and of his tenants, naming them; and of the time the tenants held the possession; and when they left the premises; also, the fact of the tenancy under the agreement with Cook; and, of the improvements made by the tenants. Whether or not these facts constituted a continuous possession by Cook and his tenants from the time they entered into possession, within the meaning of the statute of limitations, can scarcely be regarded as a simple question of fact, especially in connection with the previous testimony of the witnesses on the subject of their actual possession. We are inclined to think the question was rather one for the jury under proper instructions from the court. All the facts as it respects the possession had already been testified to by the witnesses from the commencement to its termination. Whether they constitute a continuous possession would seem to be a mixed question of law and fact.

We come now to the charge of the court to the jury. The defendants put in four prayers for instructions.

1. 'If L. Manso was an alien enemy at the time he executed the deed to Grayson, he conveyed no title through which the plaintiffs could recover.'

This question was before the court in the case of White et al. v. Burnley, already referred to, very fully considered, and overruled. We need only to refer to that case.

2. 'If the plaintiffs' title was not on record in the county where the land lies, or in the general land office, at the time the defendant located his land warrant, and completed his survey, and obtained his patent, he is in the position of an innocent purchaser, and entitled to recover.'

The location of Cook under his land warrant of the premises in question, was made on the 12th September, 1849, and the survey thereon the 15th May, 1850. The first location was under a land warrant issued to Gwartney, certificate No. 990, and made 5th January, 1847. But this was abandoned, and a new one made at the time above mentioned, under a certificate to J. A. Wells, No. 5072. It appears from the testimony of E. Linn, who has been the legal surveyor of the district in which the premises are situate, from 1838 to 1840, and from 1847 to the time when his deposition was taken, that as early as 1838 this survey of the plat of eight leagues of L. Manso, Cano, and Morales, granted by De Leon, the commissioner, was laid down on the public map of the district, and which was deposited in the general land office as a matter of record. This, according to the decisions in the courts of Texas, deprives the junior locator of the character of an innocent purchaser. So does actual notice of the prior grant, which is, also, proved in the present case.

3. 'If the plaintiffs' title includes an island surrounded by water, it is bad as to the island.'

There is no testimony in the case tending to prove the fact.

4. 'If the jury, from the evidence, can fairly and justly construe both the plaintiffs' and defendants' title, so that each can stand, it is their duty to do so.' There is no evidence in the case warranting such an instruction. Besides, it was the duty of the court to construe the paper titles of the parties.

The court gave but one instruction to the jury. The point of the objection to it is, that the court permitted the jury to depart from the survey of the league of land by Beaumont, who had been appointed by an order of the court to make it according to the courses, distances, and landmarks in the original survey by the government at the time the grant was made. The survey on the ground was made by Beaumont in pursuance of this order, but a civil engineer by the name of Thelipapa, made the map from the field notes. He was examined as a witness, and stated that he made the map from field notes furnished him by Beaumont. But, on comparing these field notes with those accompanying the order of survey, they were found to be different. He states that he made the map from courses and distances without any call for corners. In this respect the field notes of Beaumont different from the original field notes, as they specified, in addition to distances, the corners of the league, in the survey by the government. There was, also, some evidence that the original survey was made by magnetic course, and the one by Beaumont by the true course, which might account for the difference between the two surveys. The court, as will be seen, suggested this to the jury, but left the question to them to make an allowance for the difference. We perceive no objection to this instruction.

Upon the subject of this survey, it is quite apparent on the evidence, that the whole of the controversy between the parties consisted in a difference of opinion as to what line constituted a boundary upon the bay of Matagorda. The defendants insisting that there is a distinction to be made between the lagunas, some of them small, others of considerable magnitude, which are formed by tidal currents extending into the land from the bay, and, sometimes connecting with each other along the greater part of this coast, and the waters of the bay itself, while the plaintiffs insist that these lagunas belong to the bay and are parts of it, and that a line bounded on the lagunas is the same as bounded on the bay. It seems in this case quite plain that the grant to Cano was bounded or intended to be bounded on the bay, as the first line given in the description of the tract commences on the bay and terminates at the place of beginning, following down the bends of the Laguna Madre, which designates the bay or great lake of Matagorda.

There were other exceptions taken in the case to the rulings of the court in the progress of the trial, such as motions to postpone the trial, and to change the venue, which it is not material to notice further than to say, that they are not available on a writ of error.

After the best consideration we have been able to give to the case, we think there is no error in the judgment below, and it must be

AFFIRMED.


text: Talk:Cook v. Burnley (78 U.S. 659)/Opinion of the Court


text:
Cook v. Burnley

 * Cook v. Burnley (78 U.S. 659), ( 20 L.Ed. 29 ), ( 11 Wall. 659 )
 * Cook v. Burnley (78 U.S. 672), ( 20 L.Ed. 84 ), ( 11 Wall. 672 )

title: Cook v. Burnley


text:
Cook v. Burnley (78 U.S. 672)

THE judgment which is above reported as having been affirmed, was so affirmed at the December Term, 1867. A mandate accordingly issued to the court below, reciting the judgment of this court, and directing that 'such execution and proceedings be had in said cause, as according to right and justice and the laws of the United States ought to be had, the said writ of error notwithstanding.' This mandate was presented to the Circuit Court for the Eastern District of Texas, and ordered to be recorded; and Porter, who was now the surviving plaintiff, with the executors of his deceased co-plaintiff Burnley, applied to the court for writs of possession. But as the records of the court below had been destroyed by fire during the late war, affidavit was made of that fact, and a carefully certified copy of the transcript in this court was presented, with a motion to have it received in lieu of the original. The plaintiffs also presented a sworn copy of the original petition, and asked to have it established as the petition in the cause. The defendant objected to the allowance of this motion, and assigned several grounds of objection of a technical character. But the Circuit Court ordered that the motion be sustained, and that a writ of possession issue. The defendants then gave notice that they would prosecute 'a writ of error there, from;' i. e. from the order, and the court fixed the amount of the bond at $7000, and 'allowed thirty days for the filing' of the same. This order is entered December 18, 1869.

No bond having been filed or copy of writ of error lodged in the clerk's office up to January 1, 1870, the plaintiffs directed the issue of a writ of possession, which was issued; whereupon the defendant, Cook, applied by petition to the district judge, in chambers, at Austin, July 23, 1870, for a writ of supersedeas; and upon his petition an order was made for such writ, enjoining the marshal from executing the writ of possession, a copy of which order was served on the attorneys of plaintiffs. The allegation in Cook's petition, upon which this supersedeas was granted, was that he had sued out a writ of error and executed a bond, which was approved 'in due and usual form in such cases,' so that the order of the district judge must be understood as affirming this position.

The writ of error, and a copy of the bond and citation, were filed or 'lodged' with the clerk of the Circuit Court on January 7, 1870, or twenty days after the judgment was rendered, but appeared to have been allowed and approved by the district judge on the 28th of December, 1869.

Mr. W. G. Hale, for himself, and Mr. W. B. Ballinger, now moved:

I. To dismiss the writ of error in said cause for the following causes, apparent in said record:1st. The said writ of error is not prosecuted from any final judgment in this cause.

2d. That it is brought to reverse an order enforcing a mandate of this court, and not to reverse any judgment, order, or proceeding of the Circuit Court, from which a writ of error can lawfully be prosecuted to this court.

II. In case said writ of error be not dismissed, then that the court set aside and discharge the supersedeas to the writ of possession issued from said Circuit Court, or direct said Circuit Court so to do.

Mr. Thomas Wilson, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Cook v. Burnley (78 U.S. 672)