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Chaboya v. Umbarger/Opinion of the Court

Pedro Chaboya obtained in this court, at its December Term, 1862, the confirmation of his title to five hundred acres of land under claim of a grant of the Mexican government. 2 Black, 593. The proceeding was commenced before the board of land commissioners under the act of 1851, and they decided against him. On appeal to the District Court, it was found that the land was misdescribed in his petition to the board; and that court held that it had no jurisdiction on appeal to confirm any other land than that mentioned in the petition. An act of Congress, passed to remedy this defect, authorized the District Court to hear and decide his claim to the land known as La Posa San Juan Bautista. 12 Stat. 902.

This claim was for about two leagues. The District Court confirmed his claim to five hundred acres, part of the tract known as La Posa de San Juan Bautista, and rejected the remainder of it. On cross-appeals, by the United States and by Chaboya, the decree of the District Court was affirmed.

Chaboya having parted with the title thus confirmed to him, but retaining possession of the property, the present defendants in error, in whom that title had become vested, instituted a suit against him and others in the proper State court of California to obtain possession of the land.

In this action they were successful; and Chaboya and his codefendants having carried the case to the Supreme Court of California without success, have brought it here by writ of error to that court.

The title relied on by Chaboya as a defence to the action was a decree of the District Court of the United States for the Western District of California, rendered in pursuance of a mandate of this court on the thirteenth day of June, 1866. The rejection of a properly certified copy of this decree by the court when offered in evidence by plaintiffs in error is one, if not the only, error to be considered here.

The case in which that decree was rendered originated in a petition of the mayor and council of the city of San Jos e to the board of commissioners already mentioned, for the confirmation of the title of said city as the successor to the Mexican pueblo of that name, to certain lands or commons belonging to the pueblo. The out-boundary of this decree, as finally settled by the Supreme Court, included the land now in controversy, which was then, as it had been for a long time before, in the possession of Chaboya and his family.

That decree, however, excepted from this confirmation certain specified ranchos, 'and also such other parcels of land as have been, by grants from lawful authority, vested in private proprietorship, and have been finally confirmed to parties claiming under said grants by the tribunals of the United States, or shall hereafter be finally confirmed to parties claiming thereunder by said tribunals, in proceedings now pending therein for that purpose; all of which said excepted parcels of land are included in whole or in part within the boundaries above mentioned, but are excluded from the confirmation to the mayor and common council of the city of San Jos e.'

As Pedro Chaboya had set up a grant from the Mexican authorities of this five hundred acres, and as it had been confirmed to him by the Supreme Court of the United States, the highest tribunal to whom such questions could be submitted, it would seem that it was excluded from the confirmation of the pueblo title, and that the court was right in rejecting the decree as evidence of title to that land. On the face of the matter, as thus stated, the court was clearly right.

But it is said in opposition to this view of the matter, that the District Court, when it confirmed the title of Chaboya, was acting upon a matter wholly beyond its jurisdiction; that its decree was therefore void; and that grants not vested in private proprietorship by lawful authority, and not confirmed by tribunals authorized to do so, are not among those excluded from confirmation by the decree in the San Jos e case.

It would be a very strained construction of the words used in that decree to hold that, when it excludes from its operations private land-claims confirmed by the tribunals of the United States, it was intended to leave open in each of said cases an inquiry into all the circumstances which authorized the act of confirmation. The word 'tribunals' was evidently selected with reference to several bodies which had authority to make such confirmation. The Congress of the United States, the Supreme Court, the District Court, and the board of land commissioners had each authority to confirm titles originating under the Mexican government. The purpose of the excepting clause in the decree was not to give any additional validity to these confirmations, nor to determine whether they had been rightfully made, but to prevent any conflict between the decree the court was then rendering and that of any other lawful tribunal which had acted on the same subject. It was as much the intention to prevent a conflict of jurisdiction as a conflict on the merits. It was intended to say, that as to any parcel of land which had been confirmed to private parties by one of these tribunals, we leave it where we find it. We make it neither better nor worse. If the confirmation gives a good title, we cannot impair it. If it gives no title, the rival claimants must be left to their rights without embarrassment by the present decree. That this was the meaning of the court is evident from the exclusion of land to which claims shall hereafter be confirmed by those tribunals.

Whether, therefore, the case of Chaboya was strictly within the power conferred on the District Court or not when it rendered its decree may be a matter of inquiry when that decree is produced as a source of title, but is not material in ascertaining whether the land embraced in it was excluded from the decree of the same court in the San Jos e case. That court having confirmed this five hundred acre tract to Chaboya, would very naturally exclude it, with other confirmed claims, from the operation of the decree rendered four years later.

But whether this be so or not, it is said that, Chaboya being in possession, the plaintiff must recover on the strength of his own title, and that as he bases that title solely on the decree of 1862, in favor of Chaboya, it is pertinent to inquire into the jurisdiction of the court which rendered that decree. As plaintiffs in error claim nothing under that decree, we are not prepared to admit that they can bring the case to this court on that question.

But we may as well say that we are of opinion that it comes within the case of Lynch et al. v. Bernal et al., 9 Wall. 315. That was a case construing a decree confirming the title of the city of San Francisco to pueblo lands, with precisely the same excepting clause. And the same point was there presented, that the lot in question, being a pueblo lot, was not within the jurisdiction of the board of commissioners who had confirmed the title to a private party. But the court said that if the person whose claim was confirmed asserted a claim adverse to that of the pueblo, it was within the jurisdiction. In the case before us, Chaboya asserted a claim to a ranch of over two leagues in extent, called and known in all the proceedings as La Posa de San Juan Bautista. His claim was confirmed as to five hundred acres of it. It was surely within the jurisdiction of that court to determine not only the extent of that claim, but also whether it was a part of the ranch or of the pueblo lands, and whether it was a private claim, or held in subordination to the pueblo of San Jos e.

The same court-the District Court-had jurisdiction of both classes of petitions on appeal. It could adjudicate the right of Chaboya on his petition, but on that petition it must not grant him a confirmation of a pueblo lot, unless he held adversely to the pueblo. It could confirm the claim of the pueblo lots on petition of the pueblo or its successor, the city. But it had the right to exclude from its confirmation lots or parcels of land already sold, confirmed, or adjudicated to others. Taking these two decrees together, we can entertain no doubt that it had jurisdiction to confirm the title of the five hundred acres to Chaboya on his petition, and did so; and that it had the right to exclude it from the confirmation to the city, and did so.

We make no special reference to the act of April 25, 1862, under which the District Court heard Chaboya's claim; for, except the use of the phrase 'La Posa de San Juan Bautista,' as descriptive of the ranch in question, the court was to be governed by the same rule as if a proper petition had been filed before the board of land commissioners.

We see no error in the questions of Federal cognizance brought before us, and the judgment of the Supreme Court of California is

Affirmed.


text: Talk:Chaboya v. Umbarger/Opinion of the Court

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


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United States v. Memphis

ERROR to the Circuit Court of the United States for the Western District of Tennessee.

Pursuant to the mandate in City of Memphis v. Brown (20 Wall. 290), the Circuit Court of the United States for the Western District of Tennessee passed a decree, March 16, 1875, in favor of Brown against the city, for $292,133.47, and costs, in payment for work done in laying certain pavements in said city. Execution was issued, and returned to property found. March 22, Brown applied for an alternative writ of mandamus to compel the city to pay the decree, or, in default thereof, to levy and collect, as authorized by the act of the legislature passed March 18, 1873, a tax apportioned to the years 1875, 1876, and 1877, in addition to all other taxes, sufficient in amount, after making due allowance for all delinquencies, insolvencies, and defaults, to realize $125,000 each year, and pay the same over to him as fast as collected, or so much thereof as may be necessary for the purpose of satisfying the decree. The writ issued March 26, and on the same day the city filed an answer setting forth that its treasury was empty, and its power of taxation-which, for general purposes, was limited to one per cent on all taxable property-exhausted; that it was a misdemeanor to apply special taxes for any other object than that for which they had been levied; that said act of March 18 had been repealed; that the sum of $375,000 commanded to be raised by the writ exceeds the amount of the decree by $83,133.47; that pursuant to a former mandate, issued in 1873, the city levied a tax of seven mills per cent for the year 1873, and three mills per cent for the year 1874, in favor of Brown, and that there is an uncollected balance on said levies of $170,000, all of which is on account of his decree or claim now sought to be enforced, and which is being collected and paid over to him as fast as possible; that there has been collected and paid over to him from said levies about $132,742.69, and if respondents are required now to relevy the same burdensome tax on those who have paid, it will be doing a great injury to the prompt tax-payer, and will operate as an inducement to tax-payers to resist the payment of the tax; that by the provisions of the law governing the city, the ninth and tanth wards, generally denominated as the new limits. are exempt from the payment of any tax to pay for certain indebtedness of the city, and that the writ does not show whether the indebtedness is one of the excepted classes or not, and the determination of this question is a judicial one, which respondents cannot safely decide for themselves, and should be determined upon the face of the writ; that when the contract was made for the laying of said pavements, by which the aforesaid debts became due to him, it was understood and stipulated that the owners of abutting property should pay for the pavement in front of each lot; that many persons paid for such pavement according to the terms of the contract, and when the act of March 18, 1873, was passed, it provided that such persons as had paid for the pavement and held receipts therefor might be excused or released from paying the tax levied to pay for such pavement,-wherefore respondents cannot levy and collect from all persons subject to pay taxes the tax as commanded by the writ, and therefore cannot obey the writ.

Brown demurred to the answer, on the ground that said act gave full power to levy the tax, and that the legislature could not repeal it so as to defeat his rights; that the court could not consider past levies which had not been paid; that said act makes no discrimination in favor of any person or class of persons; and that the voluntary payment of the special assessments was no defence to a lawful levy of taxes for the payment of his decree. The demurrer having been sustained, a peremptory writ was issued, March 30, 1875, commanding that the city and its general council 'proceed each for the ensuing three years, to wit, 1875, 1876, 1877, respectively, at the same time and in the same manner that other taxes are assessed and levied and collected, to assess, levy, and collect upon all the property within the city taxable by law, a tax, in addition to all other taxes allowed by law, payable in lawful money of the United States of America, sufficient in amount, after making due allowance for all delinquencies, insolvencies, and defaults, to realize $125,000 each year, for the years 1875 and 1876 respectively, and so much of the said sum for the remaining year, to wit, 1877, as may be required or necessary to pay and satisfy the balance of the said decree, including interest and costs, not satisfied by the taxes collected and paid over during the two preceding years.'

It was further ordered that a writ for each of said years should be issued by the clerk, upon the request of Brown. The writ for 1875 was issued June 28, and served the next day. On December 10, the city passed an ordinance 'that a special tax of fifty-four cents on the one hundred dollars' worth of property be and the same is hereby levied for the forty-eighth corporate year (1875), for the purpose of paying $125,000 of the decree rendered by the United States Circuit Court in favor of T. E. Brown against the city, as required by the writ of mandamus.'

Feb. 9, 1876, the city filed a return to the last-mentioned writ, setting forth the passage of the above ordinance, and alleging that proceedings were being had to collect the tax thereby imposed; that by an act of the legislature passed Dec. 3, 1867, certain new territory was added to the corporate limits of the city, and designated as the ninth and tenth wards thereof; that by an act of the legislature passed Dec. 1, 1869, it was enacted that the people residing within such addition should not be taxed for any part of the debt of the city, or interest thereon, contracted prior to the passage of the act of Dec. 3, 1867; that in March and July, 1867, the city entered into contracts with certain parties, whereby they undertook to pave streets with Nicholson pavement,-which contracts were, with its consent, transferred in June, 1868, to Brown; that although some portion of the work was done after the passage of the act of Dec. 3, 1867, the greater portion was done prior thereto, and none of it in the ninth or tenth wards; that pursuant to an act of the legislature passed Nov. 24, 1866, the contracts provided that the cost of the paving was to be borne by the owners of the lots abutting on the streets to be paved, according to frontage, the cost to be paid by a specific assessment on each lot and the owner thereof, one-half to be paid in cash on the completion of each section of pavement, and the other in thirty, sixty, and ninety days thereafter, in equal instalments; that a large number of said owners paid for the work in that manner, but that others having refused so to pay, and suit having been brought to so compel them, the Supreme Court of Tennessee declared said act of 1866 unconstitutional and void, and that the sums so due must be raised by general taxation; that the act of March 18, 1873, was thereupon passed, empowering the city to levy a tax in addition to all other taxes allowed by law, sufficient to cover the entire cost of said pavements; that on March 20, 1875, the act of 1873 was repealed, and that suits were then pending to restrain the levy of any tax on the property of those persons who had paid to the contractors. This return was, on motion of Brown, stricken out. He then filed an affidavit setting forth his belief that the tax of fifty-four cents on the one hundred dollars' worth of taxable property was insufficient to pay the sum for the year 1875, required by the peremptory writ to be paid on his decree; that the value of the entire taxable real and personal property in the city, including the $2,000,000 in the ninth and tenth wards, was $23,000,000; but that from the operation of said tax the property in said wards and that of persons who had paid the special assessments, as well as the taxable capital of merchants, was excepted. He therefore prayed for an 'alias writ of mandamus commanding the city of Memphis and its mayor and general council to make a further or additional levy of taxes on all the taxable property of the city of Memphis, including the capital of merchants as taxable, and excluding the property in the ninth and tenth wards of the city, and the property aforesaid on which the said special assessments for the Nicholson pavement costs were so paid, as exempt from such taxation, such an amount in addition to the levy already made as will be sufficient to pay to him the entire sum of $125,000, to which he was entitled as aforesaid; and that the said levy may be made upon the taxable property as assessed and returned for the year 1875, and may not be further postponed.'

On March 2, 1876, the court ordered 'that an alias peremptory writ of mandamus do forthwith issue, directed to the city of Memphis, and the mayor and general council, commanding them to proceed, when they next levy taxes, to levy, in addition to the tax already levied for the payment of the plaintiff's decree under the requirements of the original writ herein issued, a further tax on all the taxable property of the city, excluding from such taxable property the property of persons residing in the ninth and tenth wards of the city, and the property on which the assessments for the payment of the costs of the Nicholson pavement have been paid, the same being, as the court adjudges, exempt from taxation for the payment of the said decrees, sufficient in amount, when added to the tax heretofore levied under the original writ, to yield to the plaintiff $125,000; and to collect the said taxes so to be levied as speedily as the same can lawfully be done, and to pay over to the plaintiff forthwith, from time to time as the same may be received, the sums collected, taking his receipt therefor; and that they make due return to the court herein, on the return-day of the writ, of the manner in which they have obeyed the same.'

The United States, on the relation of Brown, thereupon brought the case here, and assigned errors as follows:--

The court erred—

1. In excluding from the alias writ of mandamus the property in the ninth and tenth wards of the city as exempt from taxation.

2. In excluding the property on which the assessments by the front foot for the cost of the pavement had been paid.

3. In declining to order the additional levy to be made on the assessment for 1875.

Mr. William M. Randolph for the plaintiff in error.

Mr. W. Y. C. Humes and Mr. S. P. Walker, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: United States v. Memphis


text: Talk:United States v. Memphis

title: Talk:United States v. Memphis


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United States v. Memphis/Opinion of the Court

By the mandamus awarded on the 30th of March, 1875, the city was commanded 'to levy and collect upon all the property within the city taxable by law, a tax, in addition to all other taxes allowed by law,' sufficient in amount to pay the relator's judgment. In obedience to this mandate the general council of the city passed an ordinance levying a tax of fifty-four cents on each one hundred dollars' worth of property, and proceeded to collect it. But the relator, thinking this tax insufficient to raise the sum required by the writ to be raised, applied to the court for an alias writ, commanding an additional levy of taxes upon all the taxable property of the city, including the capital of merchants as taxable (but excluding the property in the ninth and tenth wards, and the property upon which special assessments had been made and paid), sufficient in amount to pay the sum required to be paid by the original writ. In compliance with this application such an alias mandamus was ordered by the court, and he now complains that the court erred in ordering the levy, excluding the property in the ninth and tenth wards. Those wards were no part of the city when the contracts were made, in virtue of which the relator's rights accrued. The territory embraced within them was added to the city by an act of the legislature of Dec. 3, 1867, and by a subsequent act passed Dec. 1, 1869, it was enacted that the people residing within the limits of the addition to the city made by the act of 1867 shall not be taxed to pay any part of the debt of the city contracted prior to the passage of the said act. In view of this legislation the inquiry arises, whether the property within those wards is by law exempt from taxation for payment of the debt due the relator, for the mandamus directed the levy of a tax only upon property taxable by law. To respond intelligently to this inquiry, the nature and origin of the debt must be considered.

In the months of March and July, 1867, the city entered into contracts with two firms, by which they undertook to pave certain streets with Nicholson pavements. These contracts, with the consent of the city, were assigned to the relator in 1868, and under them the streets were paved. Some of the work was done and some of the materials were furnished before the passage of the act of 1867, but much the greater portion was done thereafter. None of the pavements were laid in the ninth or tenth wards. It was for the work done and materials furnished under these contracts, and in consequence of the city's liability assumed in them, that the relator's judgment was recovered on the 16th of March, 1875. Such, in brief, was the origin and nature of the debt.

Though in large part the pavements were constructed after the ninth and tenth wards became a part of the city, we think, within the meaning of the act of 1869, the debt must be held as having been contracted when the contracts were made. It was then the city assumed the liability and took up the burden which is now in judgment. It appears quite plainly that the legislature, in the act of 1869, did not intend to use the word 'debt' in its technical sense. Looking at the spirit of the act rather than to its letter, the purpose evidently was to relieve the new territory brought into the city by the act of 1867 from obligations previously incurred by the city for objects in which the added territory had no interest when the obligations were assumed, and in regard to which it had no voice.

It is true the act of 1867, which made the ninth and tenth wards a part of the city, did not itself exempt them from any of the liabilities of the municipal corporation of which they became a part. It might have given such an exemption. But no discrimination was then made in their favor. The people resident in them became at once entitled to a common ownership of the city's property and privileges, subject to the same duties as those resting on others. Had the act of 1869 never been passed, it must be conceded they would have been on an exact equality with all other owners of property in the city, equally entitled with them to all municipal rights and privileges, and equally subject to all municipal burdens and charges. See cases collected in Dillon on Municipal Corporations, sects. 36, 136, 633, 634.

That act, however, was passed. In terms it relieved the people of the ninth and tenth wards from liability to pay any part of the debt of the city contracted before they came into it. It is still the law of the State, unless it violates some provision of the Constitution. The relator contends that it is in conflict with the ordinance that 'no retrospective law, or law impairing the obligation of contracts, shall be passed.' To this we cannot assent. The act was wholly prospective in its operation when it was passed. It furnished a rule only for the furture, and it interfered with no vested rights, or with the obligation of any contract. There never was any contract relation between the people of those wards and Brown, the relator. The utmost effect of the act of 1867 was to give the contractors with the city, after their contracts were made, a possibly enlarged remedy; and the act of 1869 withdrew the gift before any absolute right to it had been acquired, before the act of 1873 was passed,-the act which authorized taxation to pay the debt contracted. The same power which added the wards to the city might have severed them from it. Had they been parts of the city when the contracts were made, and subsequently been severed from it, no one could successfully contend they would have remained liable to city taxation for any city purpose. It is evident, therefore, that neither any vested right nor any contract obligation was disturbed by the act of 1869, which declared those wards exempt from taxation for any debt contracted before they were incorporated into the city.

Nor do we perceive that the act of 1869 violated any other provision of the State Constitution to which our attention has been called. It was not a law for the benefit of individuals, inconsistent with the general laws of the land; nor did it grant immunities or exemptions not extended to all individuals in like condition; nor did it deprive any person of property without the judgment of his peers or the law of the land.

It has been argued on behalf of the relator that the act violated the principles of taxation established by the Constitution, requiring taxation of all property within the taxing district, forbidding the exemption of any except such as the Constitution declares may be exempted, and requiring that taxes shall be equal and uniform. We have not been able to feel the force of this objection. We find nothing in the provisions of the Constitution to which we have been referred that justifies it. Surely the legislature is not prohibited from deciaring what districts shall be liable to taxation for local uses, and the act of 1869 was but an exertion of this power.

The second assignment of error is that the alias writ of mandamus commanded the levy of the additional tax, excluding from its operation the property on which the assessments by the front foot for the cost of the pavement had been paid. Whether the exclusion was erroneously directed or not we are not now called upon to determine, for the relator cannot be heard to insist that it was. The action of the court was in this particular exactly what he asked. He presented a petition asking that such property should be excluded from the levy, and he cannot now be permitted to complain in this court of an order made in the inferior court at his instance.

The remaining assignment of error is that the court ordered the additional levy to be made on the assessment for 1876, instead of the assessment for 1875. It does not appear certainly that such was the order of the court. It was made on the 2d of March, 1876, and it directed the mayor and council to levy the additional tax when they next levied taxes. Whether the basis of the levy was to be the assessment of 1875 or that of 1876 is not clear, nor is it a matter of any importance. It is not claimed that the aggregate assessment for the latter year was less in amount than that of the former. It is not, therefore, apparent that the relator was hurt by the order. The city is required to levy a tax sufficient in amount to yield to him the sum mentioned, and that secures his rights.

Judgment affirmed.


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


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Memphis v. United States (97 U.S. 293)

ERROR to the Circuit Court of the United States for the Western District of Tennessee.

The facts involved in this case are the same as those in United States v. Memphis, supra, p. 284.

The city of Memphis, by whom this writ was sued out, assigns the following errors:--

The court below erred—

1. In holding that the city of Memphis had the power or was under the duty of levying the tax, as adjudged.

2. In holding that the legislature had no power to repeal the act of March 18, 1873.

3. In adjudging that the tax to be levied should be payable only in lawful money of the United States, as the act of March 18, 1873, required the city of Memphis to receive, in payment of the tax therein authorized, 'any sum or sums, with interest, paid by persons in satisfaction, or part satisfaction, of said special assessments, illegally levied and collected as aforesaid.'

4. In holding that a new and further tax be laid, sufficient to pay the entire decree, for $292,133.47, the return to the alternative writ disclosing that under a former mandate of the court the city had made a special levy of $302,742.69, for the purpose of paying the decree; that of said levy $132,742.69 had been collected and paid over, and the remainder, $170,000, was being collected and paid over as rapidly as possible.

5. In awarding the writ of mandamus commanding the levy of a tax sufficient in amount, after making due allowances for all delinquencies, insolvencies, and defaults, to pay the decree.

6. In awarding the peremptory writ of mandamus.

Mr. W. Y. C. Humes and Mr. S. P. Walker for the plaintiff in error.

Mr. William M. Randolph, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Memphis v. United States (97 U.S. 293)


text: Talk:Memphis v. United States (97 U.S. 293)


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Memphis v. United States (97 U.S. 293)/Opinion of the Court

The important question in this case is, whether the law of the State empowered the city of Memphis to levy the tax which by the writ of mandamus it was commanded to levy. If it did not, the award of the writ cannot be sustained, for a mandamus will not be granted to compel the levy of a tax not authorized by law.

By an act of the legislature passed on the 18th of March, 1873, it was enacted as follows:-- 'That where an incorporated town or city has, by virtue of presumed authority to lay special assessments for specific purposes, levied and collected taxes or special assessments, the right to make which levy and assessment was afterwards declared void by the Supreme Court of the State, said town or city shall have the power to levy a tax, in addition to all other taxes allowed by law to be levied, sufficient to cover the entire cost of the improvement, with interest thereon, for which said special assessments were illegally made, and in the levying of such additional tax authority is hereby given to such town or city to allow as valid payments on said additional tax any sum or sums, with interest, paid by persons in satisfaction, or in part satisfaction, of said special assessments, illegally levied and collected as aforesaid.'

This statute, it is true, was not in existence when the plaintiff's contract with the city was made, but it is confessedly available for him, unless it was repealed before he acquired any rights under it. Plainly it was enacted to meet his case, and had there been no repeal, the question now raised would not be before us. It is claimed, however, that it was repealed before the Circuit Court awarded the mandamus, and what was the effect of that legislative action upon the power of the court in this case becomes therefore a very important question. It is an acknowledged principle that a creditor by contract has a vested right to the remedies for the recovery of the debt which existed at law when the contract was made, and that the legislature of a State cannot take them away without impairing the obligation of the contract, though it may modify them, and even substitute others, if a sufficient remedy be left, or another sufficient one be provided. The law is in effect a part of the contract. But it is not so clear that when a new remedy is authorized after a contract has been made, that remedy may not be wholly taken away by the legislature, before any vested rights have been acquired under it. In such a case the parties did not contract with reference to it, and it did not enter into their agreement. It had nothing to do with the obligations they assumed. It is, however, no less true that vested rights may be acquired by the creditor under it and by virtue of it; and when such rights have been acquired, they are beyond the reach of the legislature, and the repeal of the law will not affect them. As to them the law continues in force, notwithstanding its repeal.

In this case the relator recovered his judgment against the city on the 16th of March, 1875. Into that judgment his contract was merged, and it no longer had any legal existence. If, as asserted by Blackstone, the judgment was itself a contract, the remedies for its enforcement, existing at the time when it was recovered, could not be taken away either by direct legislation, or indirectly, by repealing the law which gave those remedies. And if the judgment may not be considered a contract of record, still the vested rights it gave to the relator, whatever they were, are equally secure against legislative invasion.

After the judgment was obtained an execution was issued to collect the amount of it, and on the 22d of March, 1875, the alternative mandamus was issued to compel the levy of the tax of which the city now complains. It was not until after all this that the act of March 18, 1873, was repealed. The act repealing it was approved by the governor on the 23d of March, 1875, and it became a law only from the time of his approval. Such is the generally received doctrine. See cases cited in 4 Abb. Nat. Dig. 223. It is said, however, the rule in Tennessee is different; and it is contended that as the act passed the two Houses on the 20th of March, though not approved by the governor until the 23d, it took effect, by relation, on the day of its passage through the two House; and we are referred to Dyer v. States, Meigs (Tenn.), 237-255, and to Turner v. Oburn, 2 Coldw. (Tenn.) 460. Those decisions were under the Constitution of 1834, which did not require the approval of the governor, or a passage of the bill over his objection, to make a binding statute as the Constitution of 1870 does. It is true the earlier Constitution required the signature of an act by the respective speakers of the House. That was for the purpose of attestation only, and the act was then said to take effect on the day of its passage. The later Constitution demands the same signatures, and it demands more, namely, the approval of the governor. It also ordains that no bill shall become a law until it shall have received his approval, or shall have been otherwise passed under the provisions of the Constitution; that is, as we understand it, over his refusal to approve. The executive is thus made a necessary constituent of the law-making power. If with this be considered the declaration of the Constitution, that no retrospective law, or law impairing the obligation of contracts, shall be made, the conclusion is inevitable, that the repealing act had no effect upon any thing that was done before March 23, 1875. But before that day we think the relator had acquired a vested right by his judgment and his alternative writ of mandamus to have a tax levied sufficient to pay the debt due to him from the city,-a right of which he could be deprived by no subsequent action of the legislature.

We do not deny that it is competent for a legislature to repeal an act which when it was passed was a mere gratuity, if while it was in existence no vested rights have been acquired under it or in virtue of it. But such, we think, is not this case. Indeed, there are very strong reasons for holding that the act of March 18, 1873, never was a gratuity. By the act of 1866 the legislature invited contracts with the city for grading and paving, offering to the contractors the security of assessments upon the owners of property abutting on the improved streets. No doubt it supposed it had the power to give such security or such a remedy to the contractor. No doubt both the city and the contractor thought such a power existed. It turned out that they were all mistaken. The contractor, by this mutual mistake, was led into the expenditure of much labor and money, and the city enjoyed the benefit of the expenditure. The security promised for reimbursement to him having failed, the legislature and the city having held forth unfounded expectations to him, by which he was induced to enter into the contract, there was the highest moral obligation resting alike upon the State and upon the city to provide a substitute for the remedy which had proved to be of no value. This substitute was provided by the act of 1873. It was merely adding a legal to a moral obligation. It should not be considered a mere gratuity. It took the place of a resort to abutting lot-owners, and if the contractor could not have been deprived of that, had it been authorized by the Constitution, the thing substituted for it should, in justice and common honesty, be regarded as equally secure for his indemnity. But if we are in error in this, it is still enough that by his judgment and his writ of mandamus he acquired a vested right to have the tax collected which the writ ordered.

The Code of Tennessee, sect. 49, declaratory of the law of the State respecting the effect of repealing statutes, is as follows: 'The repeal of a statute does not affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed.' Thus has been established a rule for the construction of repealing statutes. If now the rule be applied to the act of March 23, 1875, it is manifest that act did not affect any right that had before its passage accrued to Brown, the relator, under or by virtue of it, or any proceeding commenced by him under it. But certainly under his judgment recovered in 1875 he had a right to have a tax levied sufficient to pay it, so long as the act of 1873 remained in force, and he had the right in virtue of that act. So when the alternative mandamus was issued, March 22, 1875, a proceeding was commenced under or by virtue of the statute. And if the repealing act affected that proceeding, or took away the right the relator had in force of his judgment, it was retrospective in its operation, and it was therefore prohibited by the Constitution. In Fisher's Negroes v. Dabbs (6 Yerg. (Tenn.) 119) it was said by the court that 'a distinction between the right and the remedy is made and exists. But where the remedy has attached itself to the right, and is being prosecuted by due course of law, to separate between them and take away the remedy is to do violence to the right, and comes within the reason of that provision of our Constitution which prohibits retrospective, or, in other words, retroactive, laws from being passed, or laws impairing the obligation of contracts.' Vide Richardson v. The State, 3 Coldw. (Tenn.) 122.

For these reasons we think that, so far as relates to the case of Brown, the relator, the act of March 18, 1873, remains in force, and that the city of Memphis has power under that act to levy and collect the tax which was directed by the mandamus.

The remaining questions in the case are of minor importance. It is said there was error in adjudging that the tax to be levied should be payable only in lawful money of the United States. We do not perceive in this any error. The judgment of the relator could be paid only with such money; and the tax ordered was to be sufficient in amount, after making due allowances for all delinquencies, insolvencies, and defaults, &c., to realize $125,000 each year for the years 1875, 1876, respectively, and as much of said sum for the remaining year (1877) as may be required to pay and satisfy the balance of the decree in favor of the relator, with interest and costs, not satisfied by former taxes collected and paid. The meaning of the writ is, that sufficient money shall be collected. If the city elect to credit in payment of the levy what the lot-owners have paid, the mandamus does not forbid it; but a sufficient levy must be made and collected to raise in money the sums ordered to be paid in satisfaction of the decree in favor of the relator. This was plainly right.

The only other assignment worthy of notice is, that there was error in holding that a new and further tax be laid, sufficient to pay the entire decree for $292,133.47, the return to the alternative writ disclosing that under a former mandate of the court the city of Memphis had made a special levy of $302,742.69, for the purpose of paying the relator's decree; that of said levy $132,742.69 had been collected and paid to the relator, and that the remainder, $170,000, was being collected and paid over as fast as possible.

This assignment is manifestly evasive. The former mandate was not for the satisfaction of the decree of March, 1875. But if it was, it would make no difference. It is the most the city can ask, that it be assumed the former mandate had been obeyed, and that all had been collected that could be collected under the levy. What has not been, therefore, cannot aid in satisfying the decree, and it is not averred that any part of the $170,000 can be. Notwithstanding the mandamus, it is in the power of the city to relieve herself from its binding force by paying the debt due the relator. If she can collect any thing by virtue of past levies, to the extent of the collection she will be relieved from levying additional taxes, but the debt must be paid.

Judgment affirmed.


text: Talk:Memphis v. United States (97 U.S. 293)/Opinion of the Court


text:
Memphis v. Brown (97 U.S. 300)

ERROR to the Circuit Court of the United States for the Western District of Tennessee.

This case also involves the same general facts as those in United States v. Memphis, supra, p. 284.

On March 2, 1876, Brown filed an affidavit in the court below, that he was advised that the capital of merchants was legally taxable for the payment of his decree, and that the same tax should be levied and collected thereon for its payment as on other taxable property, and that the city of Memphis should be compelled by an alias writ to include that capital for such payment, and collect the tax thereon, and pay the same over to him, as commanded by the original writ, and that said levy be made upon the assessment as made and returned for the year 1875. The affidavit also set forth that theretofore only about sixty per cent of the taxes levied in the city had been collected; that after the withdrawal of the property in the ninth and tenth wards as exempt from taxation, and the exemption for the like reason of the property on which the special assessments had been paid, the entire residue (not including merchants' capital) was about $14,000,000, and that the money to be realized therefrom would scarcely exceed $45,000, instead of $125,000.

He therefore moved for an alias writ commanding such levy.

The court on the same day sustained the motion, and ordered that a peremptory writ of mandamus should issue, returnable to the next term of the court, commanding and requiring the city of Memphis to proceed forthwith to include within the property to be taxed for the payment of the said decree, in accordance with the peremptory writ of mandamus theretofore issued therein, the taxable capital of merchants for the year 1875, as theretofore returned and assessed by the city for taxation for other purposes, and to lay the same rate of taxation thereon for the payment of the decree that had been levied on the other taxable property of the city, and collect the said taxes so to be laid; and to pay the same over to the plaintiff forthwith as collected, according to the command of the said original writ.

On the 23d of that month the city passed an ordinance levying a tax of fifty-four cents on the hundred dollars of merchants' capital, 'for the forty-eighth corporate year, 1875.'

On the twentieth day of May following, the city submitted a motion in writing to set aside the order of March 2, and presented as an exhibit a copy of bill of complaint which sundry merchants of Memphis had filed in said court against the city and said Brown, wherein they, among other matters, allege that the order was improvidently issued, without any notice to them, and without process against the city, except the alternative writ of mandamus; and they prayed for a revocation of the order, and for an injunction against the city, to restrain it from attempting to levy the tax.

The court refused to set aside the order, but re-entered the same as its final judgment in the premises.

The city sued out this writ, and here assigns the following errors:--

The court below erred—

1. In ordering the levy of the tax of fifty-four cents on the one hundred dollars of taxable property, in excess of the $1.60 already levied.

2. In assessing the capital of merchants for the forty-eighth corporate year, conformably to the rule prescribed by the act of March 25, 1873, inasmuch as said act was in conflict with the Constitution of the State.

3. In basing the order to levy the tax on the merchants on the ex parte affidavit of Brown, without making any of the merchants of Memphis parties to the cause, and without process against the city, except the original, alternative writ of mandamus.

4. In adjudging the property of any particular tax-payer, or class of tax-payers, liable to the tax in question.

Mr. W. Y. C. Humes for the plaintiff in error.

Mr. William M. Randolph, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Memphis v. Brown (97 U.S. 300)


text: Talk:Memphis v. Brown (97 U.S. 300)

title: Talk:Memphis v. Brown (97 U.S. 300)


text:
Memphis v. Brown (97 U.S. 300)/Opinion of the Court

In Memphis v. United States (supra, p. 293), we decided that the mandamus to compel the levy and collection of a tax beyond the rate mentioned in the act of Feb. 13, 1854, and sufficient to pay the judgment recovered by the relator, was authorized by the laws of the State, and was properly awarded. That decision covers the first assignment of error in this case, and leaves it without any foundation.

The other assignments are of minor importance. Some of them deny the power of the Circuit Court to define the extent of its own writ of execution. They assert that the court could not rightfully decide that its order to levy a tax upon all the property of the city meant to include the capital of merchants, taxable under the law of the State for other purposes. There is nothing in these objections. A mandamus to collect a tax for the payment of a judgment, or a mandamus to pay a judgment, is process in execution, and nobody heretofore has ever questioned the power of a court to control its own final process.

The only other question which requires attention is, whether in exercising that control the court erred by ordering that the taxable capital of merchants for the year 1875, as theretofore returned and assessed by the city for taxation for other purposes, be included within the property ordered to be taxed for the payment of the judgment. The allegation is, not that merchants' capital is not liable to taxation at a uniform rate with other taxable property of the city, but that the statute of the State under which the assessment was made was unjust, oppressive, and in violation of the State Constitution. We are not convinced that this is a question we can consider in this case. The merchants do not appear to have made any complaint when taxes for general purposes were imposed. It is only when the special tax for the payment of the relator's judgment is ordered that they object. If the mode prescribed by the statute was in conflict with the State Constitution, they had a sufficient remedy in the State courts. To those courts they resorted (Merchants v. The City of Memphis, and Schafer, tax collector, a manuscript case decided by the Supreme Court at September Term, 1876); and we understand that court to have held, in substance, that the assessments were not illegal. Besides, we are not convinced that, if the question were an open one for our consideration, the mode prescribed by the statute for making the assessment was necessarily in conflict with the Constitution. The objection is therefore overruled.

We have considered the case without reference to the question whether the merchants who filed their bill against the city and Brown were in a situation to intervene in the action at law between Brown and the city, in the manner attempted by them. It may be doubted whether on their petition the court could be asked to correct its judgment in that case. But waiving this, we are of opinion that no error in the action of the court is shown.

Judgment affirmed.


text: Talk:Memphis v. Brown (97 U.S. 300)/Opinion of the Court


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Don't Ask, Don't Tell (Kennedy 2003)

Don't Ask, Don't Tell

SENATOR TED KENNEDY

OF MASSACHUSETTS IN THE UNITED STATES SENATE

September 29, 2003 Mr. KENNEDY. Mr. President, this November marks 10 years since our Nation imposed the discriminatory law known as "Don't Ask, Don't Tell" on the lesbian, gay, and bisexual patriots of our Nation. During the past decade, almost 10,000 men and women have been fired from our Armed Forces simply because of their sexual orientation. Many of those men and women have sought the assistance and advocacy of Servicemembers Legal Defense Network, SLDN, the Nation's only legal aid and advocacy organization for those harmed by the military's gay ban. In August, SLDN's executive director, C. Dixon Osburn, commemorated 10 years of service to the organization he founded and the brave Americans it serves. Mr. Osburn cofounded the organization in 1993 with former Army CPT Michelle Benecke. Under Mr. Osburn's leadership, SLDN has provided legal services to 5,000 service members and obtained 35 changes in military policy and practice related to "Don't Ask, Don't Tell, Don't Pursue, Don't Harass." Also under his leadership, SLDN's policy efforts have included obtaining new Pentagon and Service policies on anti-gay harassment, an Executive order on hate crimes in the military and an Executive order providing, for the first time, a limited psychotherapist privilege in the armed forces. Due in large part to Mr. Osburn's work, The Boston Globe has said "[SLDN] knows far more than the Pentagon about what reality is like in the military and helps individuals caught in the mess." Deb Price of The Detroit News also commended their work, nothing that: "SLDN has repeatedly forced the Pentagon not just to take notice, but to change." And the Nation reports, "It's amazing how much this small legal-aid group has accomplished already." Mr. Osburn received the 1994 GAYLAW Distinguished National Service Award, and the 1998 Kevin Larkin Award for Public Service from the Massachusetts Lesbian and Gay Bar Association. In 1998, Mr. Osburn was named by the Advocate magazine as one of the Top 10 National Gay Leaders. In 2000, under Mr. Osburn's leadership, SLDN received "Organization of the Year" awards from both the District of Columbia Bar Association Young Lawyers Division and the International Lesbian & Gay Museum of History. I am honored today to recognize his decade of leadership at the helm of SLDN and his unparalleled advocacy for our men and women in uniform.

title: Don't Ask, Don't Tell (Kennedy 2003)


text:
Trust Company v. Sedgwick

APPEAL from the Circuit Court of the United States for the Southern District of New York.

The facts are stated in the opinion of the court.

Mr. E. S. Van Winkle for the appellant.

Mr. F. N. Bangs, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Trust Company v. Sedgwick


text: Talk:Trust Company v. Sedgwick

title: Talk:Trust Company v. Sedgwick


text:
Trust Company v. Sedgwick/Opinion of the Court

Prior to the 1st of December, 1865, a copartnership existed in the city of New York, under the name of J. K. & E. B. Place. They are dealers in groceries. The members of the firm were James K. Place, Ephraim B. Place, and James D. Sparkman. The latter was a special partner. Under the law of New York, such partners can put a limited sum at risk, and are liable for nothing beyond it. At the date mentioned, this copartnership was dissolved. E. B. Place retired, and a new firm was formed, under the name of J. K. Place & Co. The members were James D. Sparkman and James K. Place. By the terms of the agreement, Sparkman was to contribute capital to the amount of $200,000, and Place to the amount of $600,000, and the profits were to be apportioned accordingly. After making due allowance for the payment of all liabilities, the estimated value of Sparkman's interest in the assets of the old firm was $262,000, of James K. Place's $227,000, and of E. B. Place's $168,000. The latter sum E. B. Place had a right to draw out at any time, and he subsequently received the most of it. The debts of the old firm at the time of the creation of the new one, exclusive of the sum due E. B. Place, amounted to $3,850,000. Adding what was to be paid to him, they exceeded $4,000,000. A part of the assets of the old firm was merchandise on hand, valued in gold at $996,000. To this was added, to show its value in currency, forty-eight per cent, making an aggregate of $1,474,000. There was also cash on hand, consisting of balances in the banks with which the firm dealt, to the amount of $137,000. The other assets were chiefly bills receivable and accounts in favor of the firm. J. K. Place & Co. put no new capital into their concern. They bought the merchandise of the former firm at $1,474,000, the amount at which it was estimated in currency. This was nearly $1,000,000 in excess of the aggregate of the sum to which they severally claimed to be entitled out of the assets of that firm. They remained at its place of business, used its books, and applied its means in all respects as if that firm still subsisted.

By a deed bearing date on the 30th of November, 1865, James D. Sparkman assigned the leasehold premises here in question to James K. Place. By a like deed, dated on the 1st of December following, Place assigned the same premises to Mary A. Sparkman, the wife of James D. Sparkman. Both these deeds were acknowledged on the 5th and recorded on the 9th of the month last mentioned. The premises were the family residence of Sparkman. At the time of this transaction he settled upon his wife also the horses, carriages, and furniture which formed a part of the establishment. He likewise directed his counsel to prepare the proper instrument for settling upon his wife $40,000 of seven per cent bonds of the United States, which he had received as his proportion of a larger amount of those securities belonging to the old firm. He afterwards claimed that this settlement had been made. In one of his answers to the bill in this case he said: 'That being about to embark as a general partner in the said firm of James K. Place & Co., and being well advanced in years, he was desirous of making, in favor of his wife, Mary A. Sparkman, since deceased, a settlement of a portion of his property; and on or about the first day of December, 1865, having paid in his proportion of the capital to be contributed by him to the firm of James K. Place & Co., he directed his counsel to take the proper steps to secure to his said wife, from his then existing remaining property, the sum of one hundred thousand dollars ($100,000), or thereabouts.'

What was done touching the property mentioned was the intended realization of this plan. It is not questioned that the several items were worth the amount proposed to be settled. Mary Ann Sparkman died on the 13th of October, 1866. By her will, which bore date on the 20th of July of that year, she gave the income of her estate to her husband, James D. Sparkman, for life, and after his death, the estate to his children. She had no children.

After her death, the leasehold premises were sold and conveyed by her executor to John Q. Preble. He paid $18,196.60 in cash, and gave his bond and mortgage for $40,000, being the balance of the purchase-money.

On the 27th of December, 1867, J. K. Place & Co. failed, and made an assignment to Burrit and Sheffield, for the benefit of their creditors. Subsequently, both the partners, Place and Sparkman, went into voluntary bankruptcy, and Sedgwick, the complainant, became their assignee under the bankrupt law. He filed this bill in the District Court to reach the $40,000 of government bonds and the proceeds of the leasehold premises, and to subject them to his administration. That court decreed in his favor with respect to the bonds, but dismissed the bill as to the real estate. He thereupon appealed to the Circuit Court. There the decree of the District Court was affirmed as to the bonds and reversed as to the realty. The court decreed, among other things, that the bond and mortgage of Preble should be delivered to the complainant; that the amount due upon them should be paid to him; and that the executor of Mary Ann Sparkman should pay to the complainant, out of the assets of her estate, the sum of $28,304.89.

This amount was made up of the cash payment received by James T. Sparkman, while executor, from Preble, with interest to the date of the decree, and interest paid to the executor by Preble on his bond and mortgage, with interest upon that also to the same period.

The executor thereupon removed the case to this court by appeal.

The appeal was limited to the leasehold premises and the money decree against the executor. None was taken with respect to the bonds of the United States. That subject is not therefore involved in the controversy as it is now before us.

Two questions are presented for our determination:--

1. Was the settlement of the leasehold property valid? 2. If not, was the money decree against the executor properly rendered?

On the first point we entertain no doubt. The debts of the old firm, as we have shown, were $3,852,000. The assets, as they appeared on the books, were $4,509,000. The debts were a sum certain, which grew constantly and largely by the accumulation of interest. How much less than their face the assets were worth does not appear. They were liable to constant depreciation from the failure and insolvency of those from whom they were due. A sudden fall of prices would have produced the same effect as to the merchandise. The cash on hand was less than three per cent of the amount of the liabilities to be paid. The assets of every kind, good and bad, exceeded the amount of the liabilities to be paid by only two-ninths. He would have been a bold, if not a rash man, who would have agreed to take all the assets and pay all the debts. No responsible person, we apprehend, would have entered into such a stipulation without a large premium in addition to the assets. The new company was embarrassed from the beginning, and failed within a few days over two years from the time it was formed. It was found to be hopelessly insolvent. Its liabilities exceeded its means by at least $600,000.

With these facts before us, we cannot hesitate to hold that Sparkman was in no condition to settle any thing on his wife when the new partnership was formed.

The turning-point in this class of cases is always whether there was fraud in fact. The result depends upon the solution of that question. When one engaged or about to engage in any business has the means to meet its usual exigencies, and devotes such means in good faith to the business, and has besides other means which he chooses to settle upon any object of his bounty, unlooked-for disasters on his part, subsequently occurring, will not affect the validity of the settlement, because they afford no ground for the imputation of unfairness. But where there are heavy subsisting liabilities, doubtful solvency, a large settlement made upon the wife at the outset of the business, and failure and insolvency to a large amount shortly follow, it is impossible to avoid the conviction that there was a deliberate plan to provide for the settler and his family in any event, and to throw the burden of the losses that might occur upon his creditors. The intention animating such conduct is condemned alike by ethics and the law. We think the case before us falls within this category, and we are entirely satisfied with the judgment of the Circuit Court upon the subject.

But different considerations apply to the fund for which the money part in the decree was rendered. The moneys were received by the executor for property sold by him after the death of the testatrix. It was lent by him to the firm of Place, King, & Place, and was lost to the estate by their failure. There is no proof that the testatrix took any part in bringing about the settlement, or that there was any guilty knowledge on her part in the transaction. It is fairly to be presumed that she confided in the good faith of her husband, and simply yielded obedience to his wishes. The provision of her will attests her devotion to him. The fund did not exist in her lifetime, and her estate has been in no wise benefited by it. The transfer of the property was his act, not hers. She was only a passive recipient. Her will-doubtless influenced, if not controlled by him-gave him her entire estate for life, and, after his death, gave it to his family. No provision was made for her family.

The sphere of the avocations and duties of husband and wife are different. Usually she knows little of business and property interests. It is natural that she should confide in his integrity, and be guided in every thing by his kindly judgment. She is always sub potestate viri. Hence, the disabilities and safeguards which the law wisely throws around her.

Chancellor Kent says: 'The husband is liable for the torts and frauds of the wife committed during coverture. If committed in his company or by his order, he alone is liable.' 2 Com. 149. 'And if a wife act in company with her husband in the commission of a felony, other than treason or homicide, it is conclusively presumed that she acted under his coercion, and is consequently without any guilty intent.' 1 Greenl. Evid., sect. 28. See also Liverpool Adelphi Loan Association v. Fairhirst, 9 Exch. Rep. 422, and Gordon v. Haywood, 2 N. H. 402.

A feme covert may be a trustee, but her husband is personally liable for any breach of trust she may commit, and hence she cannot act in the administration of the trust without his concurrence or consent. Hill, Trustees, 464; Phillips v. Richardson, 4 J. J. Marsh. (Ky.) 212. She is not liable upon the covenants of title in a deed executed by herself and her husband. Schouler, Dom. Rel. 155. Upon the subject of her disabilities, see Norton v. Meader, 4 Sawyer, 603.

This part of the decree was clearly erroneous, and the error must be corrected.

The cases of Phipps v. Sedgwick and of Place v. Sedgwick (95 U.S. 3) were branches of this litigation. They presented the same questions of fact and law which we have considered in this case. Those questions were disposed of as we have now determined them. The fulness with which the views of the court, speaking through Mr. Justice Miller, were expressed, renders it unnecessary to add any thing to what has been already said, on the present occasion.

This case will be remanded to the Circuit Court, with directions to modify the decree in conformity to this opinion; and it is

So ordered.


text: Talk:Trust Company v. Sedgwick/Opinion of the Court


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The Virginia Ehrman and the Agnese

APPEALS from the Circuit Court of the United States for the District of Maryland.

The facts are stated in the opinion of the court.

Mr. I. Nevett Steele and Mr. A. A. Strout for the libellants.

Mr. S. Teakle Wallis for the 'Virginia Ehrman,' and Mr. Charles Marshall for the 'Agnese.'

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: The Virginia Ehrman and the Agnese


text: Talk:The Virginia Ehrman and the Agnese

title: Talk:The Virginia Ehrman and the Agnese


text:
The Virginia Ehrman and the Agnese/Opinion of the Court

Ship-owners, if their ship is without fault, are entitled in a cause of collision, except where it occurs from inevitable accident, to full compensation for the damage their ship receives, provided it does not exceed the value of the offending vessel and her freight then pending; and the same rule applies where the injury is caused by the joint action of a tug and tow, if it be so alleged in the libel, and it appears that both were in charge of their own master and crew, and that each was in fault in not taking due care, or was guilty of negligence or of unskilful or improper navigation.

Litigations of the kind depend very much upon the facts and circumstances that attended the disaster, which it is often difficult to ascertain with sufficient certainty, on account of the conflict in the statements of the witnesses; nor is the present case by any means free of that embarrassment, which is somewhat intensified by the triplicate character of the controversy. Damages are claimed both of the steam-tug and her tow by the libellants, who are the owners of the steam-dredge which it is alleged and admitted was sunk by the collision and became a total loss.

Prior to the collision, the dredge was employed under a contract with the United States in deepening and widening what is known as the Craigill channel, one of the approaches to the port of Baltimore; and it is alleged that she was lying on the night in question at her proper berth on the western edge of the improved channel, carefully and skilfully anchored, with three anchors properly set to keep her in position to prosecute her work, and with two signal-lights brightly burning. While the dredge was so lying at anchor, the charge of the libel is that the ship, being in tow of the steam-tug, by the neglect and want of care and skill on the part of the masters and crews of both those vessels, ran into and sunk the anchored dredge in the channel where she was lying.

Both the steam-tug and the ship admit the collision, and that the dredge was sunk and lost; and the libellants allege that the ship was unskilfully navigated, and that the steam-tug was in fault in sailing with her two dangerously near to the dredge, notwithstanding there was plenty of deep water on either side of the dredge, into which she might have taken the ship without danger.

Service was made, and the owners of the respective vessels appeared and filed separate answers. Separate answers became necessary, because the owners of the steam-tug differed widely in the defence of their vessel from that set up by the owners of the ship which the steam-tug had in tow.

For the ship the defence is, that she was being towed by the steam-tug up the bay to the port of Baltimore; that she was attached to the steam-tug by a hawser fifty fathoms long, running from the bow of the ship to the stern of the steam-tug; that the master and crew of the ship were entirely ignorant of the channel leading to the port, and that they assumed no control or direction over the ship; that the ship followed closely in the wake of the steam-tug as she sailed up the bay; that as they proceeded in that direction those in charge of the ship perceived that they were passing in close proximity to a dredging-machine heading to the south, similar to that described in the libel; that just as they passed that object they perceived at a distance in the rear of the same a second dredging-machine about midway the channel, but a little nearer to the western edge of the same than the one they had just passed; and the answer for the ship alleges that the steam-tug would have run directly into the second dredge had she not starboarded her helm just in time to prevent a collision, but not in season to enable the ship to adopt the necessary corresponding precaution.

Two causes for the disaster are assigned in the answer filed by the owners of the steam-tug: 1. That the dredging-machines were improperly anchored in the middle of the channel, and on the line of the lights intended for the guidance of ships when using the channel and under way, and that the dredges should have been located nearer to the edge of the channel, which, as they allege, is only about three hundred feet wide. 2. That the collision was caused by the gross mismanagement of the ship, and by the drunkenness, incompetency, and negligence of the pilot in charge of her navigation; and they also allege that the ship had a fair and free wind, with her topsails drawing and under full headway, and that she was not dependent upon the steam-tug either for her motion or her course.

Testimony was taken on both sides; and both parties having been fully heard, the District Court dismissed the libel as to the steam-tug, entered a decretal order in favor of the libellants as against the ship, and sent the cause to a commissioner to ascertain and report the amount of the damages.

Due report was made by the commissioner that the libellants are entitled to recover as damages the sum of $24,184.57. Exceptions to the report were filed by the claimants of the ship, which were subsequently overruled by the District Court, and a final decree entered in favor of the libellants for the amount reported by the commissioner.

Prompt appeal was taken by the owners of the ship and by the libellants to the Circuit Court, where the parties were again heard; and the Circuit Court being of the opinion that both the steam-tug and the tow were in fault, reversed the decree of the District Court dismissing the libel as to the steam-tug, and entered a decree in favor of the libellants against both of the respondent vessels for the amount of the damages allowed by the District Court, and adjudged and decreed that the same, together with the interest and cost, be equally divided between the ship and the steam-tug; and from that decree all the parties appealed to this court.

Conflicting theories are still maintained by the respective appellants.

1. Throughout, the owners of the steam-dredge have contended that both the steam-tug and the ship were in fault, and they still insist that the decree of the Circuit Court is correct, except that it fails to make provision that if either of the parties adjudged to be in fault is unable to pay the whole amount of the moiety decreed against such party, that the libellants may collect the balance of such moiety of the other respondent party.

2. On the part of the steam-tug the proposition is still maintained, that the steam-dredge was anchored in a wrong place, and that the collision was caused by the gross mismanagement of the ship, arising from the drunkenness, negligence, and incompetency of her pilot.

3. Opposed to that, it is contended by the appellants in behalf of the ship, as follows: 1. That the steam-dredge is responsible for the accident, by reason of the place and manner of her anchorage. 2. That in any view, if the ship is held liable at all, the decree of the Circuit Court dividing the damages between her and the steam-tug should be affirmed.

Cases arise undoubtedly where both the tug and the tow are liable for the consequences of a collision, as when those in charge of the respective vessels jointly participate in their control and management, and the master or crew of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Sturgis v. Boyer et al., 24 How. 110; The Mabey and Cooper, 14 Wall. 204.

Official directions as to the position of the steam-dredges employed in making the excavation were given by the engineer to the superintendent, and it appears that the superintendent carried the directions into effect. They were placed in their positions pursuant to those directions; and it appears that the orders given required that they should remain in that position during the night, in order that the work could be resumed in the morning, without inconvenience or delay.

Three steam-dredges were employed by the libellants in making the excavation under their contract with the principal official engineer. By their contract they were to prosecute the work under the directions of the engineer-in-charge, and it appears that he, the afternoon before the collision occurred in the evening, directed the dredges to be placed in the respective positions where they were when the steam-tug, with her tow, attempted to sail up the channel, which is straight, and runs nearly north and south. They were employed in deepening the channel in the bay, below the mouth of the Patapsco River, as before remarked, under a contract with the United States. Being employed in the same work, they were located as follows; to wit, the first between two and three miles above the mouth or southern end of the channel; the second, which is the one that was sunk and lost, was located about a quarter of a mile further north; and the third and last, about a mile and a quarter north of the second. Buoys were set on the eastern edge of the channel, as guides for mariners by night, and the steam-dredges were anchored on the western edge of the excavated channel, leaving about two hundred feet of excavated channel between the steam-dredge lost in the collision and the buoys located on the eastern edge of the same.

Evidence of the most satisfactory character was given that the steam-dredges were properly moored, and it shows that each was held in position by three anchors having two quarter-lines, one from each side, running towards the front six hundred feet, at an angle as claimed of about forty-five degrees, and a stern line running out about four hundred feet, which it is not denied were sufficient to hold the dredges firmly in position. Though securely moored, it appears that the steam-dredges were not exactly in line with each other, the second, which is the one lost in the collision, having been located half her width further to the west than the first, which was anchored a quarter of a mile lower down in the channel.

Enough appears to show that the contract of the libellants for deepening the channel was completed for the whole length between the steam-dredges and the buoys, and that the dredges were located with a view to prosecute the work of excavation on the west side of the centre line of the work for the same width, or, in other words, the channel was to be deepened to the width of four hundred feet,-two hundred feet on each side of the centre line, the eastern half of which only was completed; from which it follows that the water in the channel east of the steam-dredges was four feet deeper than the water in the channel west of the dredges, which had only the natural depth of water. Either channel had sufficient depth of water for the steam-tug and the ship, as the testimony clearly shows that the water west of the dredges was eighteen or twenty feet deep, and that the ship did not draw more than fourteen feet.

Examined in the light of these suggestions, as the case should be, it is clear that the proposition that the steam-dredge was anchored in an improper place utterly fails, as the proofs are clear that the steam-tug with the ship in tow had plenty of sea-room to pass up either side of the anchored dredges. Such being the case, it follows that the steam-dredge was without fault, as the proofs show that she displayed good signal-lights, and that she had competent lookouts properly stationed on her deck. Securely anchored as she was on the western edge of the excavated channel, there was an unobstructed passage of water east of her about two hundred feet in width and twenty four feet deep, and with a passage west of her of equal width, where the water was eighteen or twenty feet in depth.

Vessels in motion are required to keep out of the way of a vessel at anchor, if the latter is without fault, unless it appears that the collision was the result of inevitable accident; the rule being that the vessel in motion must exonerate herself from blame, by showing that it was not in her power to prevent the collision by adopting any practicable precautions. The Batavia, 40 Eng. L. & Eq. 25; The Lochlibo, 3 W. Rob. 310; Strout v. Foster, 1 How. 94; Ure v. Coffman et al., 19 id. 56; The Granite State, 3 Wall. 314; The Bridgeport, 14 id. 119; The John Adams, 1 Cliff. 413.

Concede that, and it follows that the ship was clearly in fault, as the proofs show to a demonstration that if she had starboarded her helm after she passed the first steam-dredge the collision would not have occurred, and they furnish no excuse for the omission. Instead of that, the better opinion is that the ship had no lookout, and that her helm was put to port at the very moment when it should have been put to starboard. Explanations to show how the mistake happened are unnecessary, as the ship is equally in fault whether it was because the pilot was intoxicated or because the ship was without a lookout. Suffice it to say the mistake occurred, and the evidence shows that the ship is without just excuse, as the night was light and the sea was smooth. Collisions under such circumstances find no excuse where there is a good wind and a berth of sufficient width, as nothing short of bad seamanship in such a case could bring the two vessels together.

Nothing of much importance remains to be considered except the question whether the steam-tug was also in fault.

Negligence, it is alleged, was the cause of the collision; and the libellants charge that those in charge of the steam-tug were guilty of want of skill and care, as well as those in charge of the ship, and that both the steam-tug and the ship are responsible to the owners of the steam-dredge for the damages which the collision occasioned.

Gross negligence, it is insisted, is imputable to the master of the steam-tug in attempting to tow a ship two hundred and eighteen feet long up that channel in the night on either side of the steam-dredges, especially without more knowledge of the same than was possessed by the master of the steam-tug, according to his own testimony. His knowledge of the channel appears to have been very imperfect; but he knew that the steam-dredges were there, as he admits that he saw them there when he came down from the port the same afternoon. He took the ship in tow off Annapolis, and at the time he entered into the engagement he said he would take her up the excavated channel; but when the steam-tug and tow reached the first steam-dredge, he took them the west side of the dredge, which both the tug and tow passed in safety, though not more than thirty-five or forty feet west of the starboard side, as she was lying heading south.

As before explained, the second steam-dredge was moored half her width or more further to the west than the first, so that in order to pass her in safety it was necessary that both the steam-tug and the two should incline to port; and it appears that the steam-tug did so, and that she passed the steam-dredge without collision, but that the ship, either because she neglected that precaution or because she ported her helm, ran into the steam-dredge, striking her end on, eight or ten feet from her starboard side, with such violence that she broke and cut into the heavy timbers of the dredge for the distance of six feet, causing her to sink in the channel.

Without doubt, it was practicalbe for the steam-tug, with due care and good seamanship on the part of those in charge both of the steam-tug and the tow, to take the tow up to the port on either side of the steam-dredges; but we all concur with the circuit judge that it was a rash act and bad seamanship to attempt to do so in such close proximity to the anchored steam-dredge, when there was plenty of room to have given the same a wider berth.

Attempt is made to excuse the master for having selected the western side of the steam-dredges for his passage, upon the ground that he was influenced by a signal from the first dredge; but the evidence introduced for the purpose fails to satisfy the court that any such signal was given; nor would it afford any satisfactory excuse for the steam-tug even if it appeared that the fact was so, as it was still the duty of the steam-tug to have given a wider berth to the anchored steam-dredges. Such an experiment was wholly inexcusable, as there was plenty of searoom still further to the west to have enabled the tug and tow to have passed up the channel without danger of collision with the anchored steam-dredges.

Certain exceptions were taken to the commissioner's report in the District Court, but inasmuch as they were not pressed in the Circuit Court nor assigned for error here, they are overruled.

Innocent parties in a case of collision are entitled to full compensation for the injuries received by their vessel, unless it occurred by inevitable accident, provided the amount does not exceed the amount or value of the interest of the other party in the colliding ship and her freight then pending. 9 Stat. 635; The Atlas, 93 U.S. 302; The Alabama and the Game-cock, 92 id. 695; The Washington and the Gregory, 9 Wall. 513.

Where the charge in such a case is joint, it is correct to divide the damages; but still the injured party, if without fault, is entitled to full compensation, and it follows that if either of the faulty parties is unable to pay the whole of his moiety, it is, in general, the right of the injured party to collect the balance of the other faulty party. No such provision is contained in the decree of the Circuit Court, probably for the reason that the stipulation for value given in behalf of the steam-tug greatly exceeds the amount of a moiety of the damages and costs awarded to the libellants. But such a stipulation is merely a substitute for the vessel, and in view of all the circumstances it is deemed proper that the decree shall conform to the settled practice.

Tested by these suggestions, it follows that the decree of the Circuit Court must be modified in that particular.

Decree, as modified, affirmed.


text: Talk:The Virginia Ehrman and the Agnese/Opinion of the Court


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Hurley v. Jones

MOTION to reinstate a cause dismissed under the sixteenth rule.

Mr. Fillmore Beall in support of the motion.

Mr. W. F. Sapp, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Hurley v. Jones


text: Talk:Hurley v. Jones

title: Talk:Hurley v. Jones


text:
Hurley v. Jones/Opinion of the Court

When this cause was reached in its order upon the docket, there being no appearance by the appellant, the appellee had him called and the appeal dismissed under Rule 16. Our rules require that, 'upon the filing of the transcript of a record brought up by writ of error or appeal, the appearance of counsel for the plaintiff in error or appellant shall be entered.' Rule 9, par. 3. This rule was adopted for the purpose of making some attorney of the court responsible for the due prosecution of the suit, and it was intended for something more than mere form. Parties should understand that they are represented here by their counsel, and that notice to counsel is ordinarily equivalent to notice to themselves.

This cause was docketed here nearly two years and a half before it was called. The attorney of record seems to have done all he was expected to do. But the appellant himself was so unmindful of his interests, that he did not know the counsel, upon whom he relied for the presentation of his case, had died before the commencement of the present term, and had been unable to attend to business on account of impaired health for a long time before his death. In the crowded state of our docket, filled with cases from all parts of the United States, it is our duty to take special care that the necessary delays in disposing of the business are not added to by the neglect of counsel or parties. For this reason, our rules requiring causes to be ready for hearing when reached are, and will continue to be, rigidly enforced.

Motion denied.

title: Hurley v. Jones/Opinion of the Court


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


text:
Herbert v. Butler

ERROR to the Circuit Court of the United States for the Eastern District of New York.

This was an action brought by Herbert for money had and received for his use by Butler. Plea, general issue. The parties were the only witnesses in the case. Judgment for the defendant. Herbert sued out this writ of error.

The facts are stated in the opinion of the court.

Mr. Jasper K. Herbert for the plaintiff in error.

Mr. Thomas J. Durant, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Herbert v. Butler


text: Talk:Herbert v. Butler

title: Talk:Herbert v. Butler


text:
Herbert v. Butler/Opinion of the Court

There are two questions in this case: first, whether there is any bill of exceptions by which we are authorized to look into the proceedings at the trial; and, secondly, whether, if there is such a bill, there is any ground for reversing the judgment.

First, Is there a bill of exceptions? The document relied on by the plaintiff in error as constituting such a bill, and certified from the court below as part of the record, is appended to the record of the pleadings and judgment, and commences as follows:--

'The following case and exceptions is agreed on by the attorneys for Jasper K. Herbert, plaintiff, and Benjamin F. Butler, defendant.' Then follow the title of the cause, a record of the proceedings had, and the evidence given at the trial, including the rulings of the judge and the exceptions thereto; and the case thus presented closes with the judge's certificate, as follows: 'Settled as within, pursuant to the above consent. Sept. 19, 1875. (Signed) Charles L. Benedict.'

If this paper hed been entitled a 'bill of exceptions,' instead of a 'case and exceptions,' there could not be any doubt that it would be a sufficient bill. It has all the requisites of a bill, except the mere name. A seal is not required, being expressly dispensed with by the act of 1872 (17 Stat. 197; Rev. Stat., sect. 953); and we had before decided that a seal is not essential in the courts of the United States. Generes v. Campbell, 11 Wall. 193. It has the sanction and signature of the judge, and, though settled after the trial, it was agreed upon by the parties; and hence it is free from objections which have prevailed in other cases. Generes v. Bonnemer, 7 id. 564; Graham v. Bayne, 18 How. 60. We think it is a sufficient bill of exceptions.

Secondly, Was any error committed in the ruling of the judge? The bill of exceptions shows that, after the evidence was concluded on both sides, the judge directed the jury to find a verdict for the defendant. To this direction the plaintiff excepted, and it is the only error assigned here. The evidence is all set out in the bill, and the question is, whether the judge erred in not submitting it to the jury.

We decided in Improvement Company v. Munson (14 Wall. 442) and Pleasants v. Fant (22 id. 116), that although there may be some evidence in favor of a party, yet if it is insufficient to sustain a verdict, so that one based thereon would be set aside, the court is not bound to submit the case to the jury, but may direct them what verdict to render. As the question is fully discussed in those cases, it is unnecessary to repeat the discussion here.

After carefully examining the the evidence, we are of opinion that it justified the direction given.

The plaintiff testified, in substance, that G. B. Lamar, having obtained a judgment for $579,000 against the United States in the Court of Claims, and an appeal therefrom being pending in this court in October, 1873, Lamar employed him (the plaintiff) to get the appeal dismissed, and agreed to give him $20,000 for doing so; that he (the plaintiff) thereupon employed the defendant to assist him, agreeing to divide his fee with him, to which the defendant consented; that thereupon the defendant proceeded and procured the dismissal of the appeal; that the plaintiff, not getting his fee, called on Lamar, who informed him that he had paid it to the defendant; that, on applying to the defendant, he admitted having received the money from Lamar, but denied that he had received any thing for the plaintiff.

The plaintiff further produced Lamar's check to the defendant's order for the sum of $25,000, dated April 16, 1874, and the defendant's receipt, dated April 17, 1874, in the following words:--

'Received, Washington, April 17, 1874, of Gazaway B. Lamar, twenty-five thousand dollars ($25,000), in full for retainer and services as counsel in the trial of his case against Albert G. Brown and others, in the Circuit Court of the United States for the First Circuit, at Boston, and also in the preparations of the bill of exceptions and entry of the same in the Supreme Court of the United States, and also for retainer and argument of motion to dismiss the case in the Supreme Court of the United States, appellant, against him, from the judgment of the Court of Claims, and services in preparing a motion for dismissing the appeal, this being in full of all services and demands due by said Lamar up to and including the date on which said appeal was dismissed.

'BENJ. F. BUTLER.'

The defendant, in his testimony, admitted the fact that he was employed by Lamar, through the plaintiff, in the matter of dismissing the appeal; he also admitted the receipt of the $25,000, but stated that he received this money in settlement of his own services alone; that he had been engaged in various other professional matters for Lamar, both before and after the dismissal of the appeal, and that his fees for these services were all included in the amount; and that he never received any thing from Lamar for the plaintiff. In addition to this, he produced in evidence a letter from the plaintiff to himself, dated April 9, 1874, and his answer thereto, dated April 12, 1874, of which the following are copies:--'LAW OFFICES OF HERBERT & WILBER,

'58 BROADWAY, NEW YORK, April 9, 1874.

'MY DEAR GEN.,-I am glad to see that Lamar's appeal is dismissed.

'He agreed with me to pay $20,000 to have it dismissed; this with me. I immediately went to Washington and employed you. When you asked me, 'What about fees?' I replied, 'You can have $5,000 or $10,000 if you like. I have an agreement with Lamar.' You said 'All right; on that assurance I will go to work;' and we started off for the Attorney-General's office.

'Subsequently you told Lamar that 'I (you) must command the ship, or you would not sail,' or words to that effect.

'Since that time I have left the matter with you.

'Now I want to have you understand in relation to this matter, as I stated to you before leaving Washington, that Lamar's agreement is for $20,000 to have the appeal dismissed. I want you to collect the money and send me a check for any portion to which you may think me entitled.

'I advised Lamar, when in Boston, to employ you and me in this case. The employment did not come until others had failed, which made it more difficult.

'Nevertheless, the agreement between L. and myself, before I would call on you in regard to it, was as I have stated.

'Lamar is in Washington, and I leave the balance to you.

'Yours truly,

J. K. HERBERT.

'Hon. B. F. BUTLER,

'Washington, D. C.'

'HOUSE OF REPRESENTATIVES,

'WASHINGTON, D. C., April 12, 1874.

'SIR,-I have no power or authority to collect money in the case of Mr. Lamar, nor can I collect your fees.

'Very truly yours,

BENJ. F. BUTLER. 'J. K. HERBERT,

'58 Broadway, New York.'

It was after this correspondence, and after the defendant had settled with Lamar, that the plaintiff (as testified by him) called on Lamar, and was informed by him that he had paid the defendant; and that the defendant, on being applied to, admitted the receipt of the money, but denied having received any thing for the plaintiff.

Now, it is evident from this outline of the evidence that upon the issue made by the pleadings, namely, whether the defendant received any money for the use of the plaintiff, there was no necessary conflict in their testimony. The plaintiff may think that the defendant ought to have collected his (the plaintiff's) fees, as well as his own. But he cannot deny that the defendant expressly refused to do so when applied to for that purpose; and he does not, for he cannot, deny that the defendant (as he says, and as his receipt shows) may, in fact, have settled his own fees alone. Lamar's declaration cannot affect the defendant, especially in view of the express language of the receipt taken by him. Therefore, as the burden of proof was on the plaintiff to sustain the issue, and as the whole evidence taken together does not sustain it on his part, but the only direct evidence on the subject-namely, the testimony of the defendant, and the receipt given by him to Lamar-is to the contrary, the judge properly directed the jury to find for the defendant.

The minor points in which there may have been a conflict in the testimony of the parties do not affect the main question.

Judgment affirmed.

title: Herbert v. Butler/Opinion of the Court


text: Talk:Herbert v. Butler/Opinion of the Court


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The City of Hartford and the Unit

APPEALS from the Circuit Court of the United States for the Southern District of New York.

Hudson S. Rideout and others, owners of the schooner 'Abbie S. Oakes,' and Charles Robinson, owner of her cargo, filed their separate libels in the District Court for the Southern District of New York, against the steamboat 'City of Hartford' and the steam-tug 'Unit,' to recover, the first $8,000, and the second $4,500, damages, occasioned by the sinking of the schooner in East River, New York, which was caused by a collision between the 'City of Hartford' and her while she was in tow by the 'Unit.' In each of the cases the steamer and tug were claimed by their respective owners. In the first case, the claimant entered into a bond in the sum of $16,000, and a stipulation for costs for $250. In the second case, the bond was for $9,000, and the stipulation for costs for $250. The 'Unit' having been appraised at $3,000, her owners entered into a stipulation for value in that sum and for $250 costs.

The court, on final hearing, entered a decree in the first case that the libellants recover from the 'City of Hartford' the sum of $4,119.04 damages, with $56.29 interest and $234.19 costs; and dismissed the libel as to the 'Unit,' with costs against the libellants. In the second case, the court dismissed the libel as to the 'Unit,' and decreed that Robinson recover from the 'City of Hartford' $3,407.79 damages, with $8.52 interest and $142.64 costs. The owners of the schooner thereupon appealed to the Circuit Court from so much of the decree as dismissed their libel against the 'Unit,' and awarded costs against them. The company appealed from the entire decree in each case. Robinson did not appeal. The Circuit Court, upon hearing, entered in the first case a final decree, reversing that of the District Court, which dismissed the libel as to the 'Unit' and awarded costs to the claimants, and ordering and adjudging that the libellants recover of the 'City of Hartford' the sum of $2,087.67, being one-half of the damages sustained by the collision, together with interest thereon and the costs of seizure, and one-half of the general costs, making in all $2,674.54; that they recover of the 'Unit' $2,087.67, 'being the other one-half of the damages,' with interest, and the costs specially incurred by the proceedings against her, and one-half of the general costs, amounting in all to $2,787.54.

In the second case, the decree of the District Court was modified, and it was ordered and adjudged that Robinson recover against the 'City of Hartford' the sum of $1,856.66, being one half-part of the damages sustained by him by reason of the collision, including interest thereon to the date of the decree of the District Court, and the sum of $337.14 interest on said half-part to the date of the decree of the Circuit Court, and so much of his costs against said steamboat in the District Court as were incurred in the seizure, amounting to $102.90, with $18.60 interest thereon, together with one-half of the general costs of the Circuit Court, taxed at $14.35, amounting in all to $2,329.65.

From these decrees the Hartford and New York Steamboat Company, claimants of the steamboat, and Robinson, severally appealed to this court.

Mr. R. H. Huntley for the steamboat company.

Mr. Joseph H. Choate for the owners of the schooner, and Mr. Henry J. Scudder for Robinson.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: The City of Hartford and the Unit


text: Talk:The City of Hartford and the Unit

title: Talk:The City of Hartford and the Unit