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Wilkins v. Allen

THIS case was brought up, by writ of error, from the circuit court of the United States for the western district of Pennsylvania.

It was an ejectment brought by the Allens, who were aliens and subjects of the Queen of Great Britain and Ireland, to recover four undivided fifth parts of one undivided half of a lot in Pittsburg. They were heirs of Michael Allen, and the question was, whether Allen, the testator, had devised the property in question by his will.

The substance of the will is given in the opinion of the court, as are also the rulings of the circuit court.

It was argued by Mr. Williams, for the plaintiffs in error, and by Mr. Loomis and Mr. Stanton, for the defendants.

The points made by Mr. Williams are thus stated in his brief:

The case presents two questions only:--

1st. Whether the terms of the will are sufficient, proprio vigore, and interpreting the same by the context, to carry the real estate to the executors; and,

2d. Whether the interpretation thereof may not be aided, if necessary, by extrinsic circumstances, to wit: memoranda, declarations, and the actual amount and condition of the estate, as offered to be shown by the defendants.

On the first of these questions, and for the purpose of showing that the intention (which is only another name for the will) of the testator, is the great point of inquiry, and must be collected from the whole writing, and every word and sentence thereof; and that to serve it, words may be used either in the technical or general sense, and even supplied, transposed, or changed, the counsel for the plaintiffs in error will refer to the cases of Ruston v. Ruston, 2 Dall. 244; Findlay v. Riddle, 3 Binn. 149; Lynn v. Downes, 1 Yeates, 518; Beltzhoover v. Costen, 7 Barr, 16; Turbett v. Turbett, 3 Yeates, 187; Hunter's estate, 6 Barr, 97; Earp's Will, 1 Par. 457; Den v. Blackwell, 3 Green, 386; Den v. McMurtrie, Ib. 276; 1 Jarman on Wills, chap. xvii., and cases there cited.

That, as a consequence of the foregoing rules, real estate may pass under a devise by any form of expression not properly and technically descriptive thereof, if such an intent can be collected from the context-that general expressions may be restrained and special expressions enlarged, and the same words sometimes understood in one sense, and sometimes in another, will be shown in the cases of Huxtep v. Brooman, 1 Brown C. C. 437; Taylor v. Webb, 2 Sid. 75; Pitman v. Stevens, 15 East, 505; Wilce v. Wilce, 5 Moore & Payne, 682; Tolar v. Tolar, 3 Hawks, 74; Hope v. Taylor, 1 Bur. 268; Doe v. White, 1 East, 33; Den v. Trout, 15 East, 394; King v. Shrives, 4 Moore & Scott, 149; Anon. 3 Dale, 477; Jackson v. Housel, 17 Johns. 281; Ferguson v. Zepp, 4 W. C. C. R. 645; Hogan v. Jackson, Cowper, 299; Marchant v. Twisden, Gilb. Eq. Ca. 30; Wilkinson v. Merryland, Cro. Car. 447, 449; Cliffe v. Gibbons, 2 Ld. Raym. 1324; Bullard v. Goffe, 20 Pick. 252; Doe v. Rout, 7 Taunt. 79; Woolham v. Kenworthy, 9 Ves. 137; Timewell v. Perkins, 2 Atk. 102; Roe v. Yeud, 2 B. & P. (N. R.) 214.

That the circumstance of a previous specific devise of land, always favors the extension of the subsequent general words to property of the same description, although even the absence of that circumstance is not considered as conclusive against it, even when the subsequent terms are associated with words descriptive of personal property only. 1 Jarman on Wills, 575.

That the word 'surplus' and its equivalents, without more, may operate by reference, to carry either realty or personalty, or both, he will refer particularly to the cases of Bebb v. Penoyre, 11 East, 160; and Dewey v. Morgan, 18 Pick. 295.

That the interpretation of the testator's language is to be made with reference to the law and usages of the place of his actual domicile, 2 Greenl. Ev. § 671; Story's Confl. of Laws, § 479, f.; Harrison v. Nixon, 9 Pet. 483; and that, by the law of Pennsylvania, the whole interest of a testator passes without words of inheritance or perpetuity, unless a different intent appear; act of 8th April, 1833, § 9, (Ph. L. 249;) Purdon's Dig. 844; that real estate is assets for the payment of debts and legacies are chargeable on lands where the personalty is insufficient to meet them; Nichols v. Postlethwaite, 2 Dall. 131; English v. Harvey, 2 Rawle, 309; and that, therefore, the habit of treating both as equally a fund to pay any demand, would not probably be forgotten by a testator when making his will. Ib.

On the second and last of the questions proposed, namely, whether the construction may be aided by proof of extrinsic circumstances, the counsel for the plaintiff.

To show that the court may and ought to put themselves in the place of the testator, by looking into the state of his property, and the circumstances by which he was actually surrounded, will refer to 1 Greenl. Ev. §§ 287, 288, 289, & 290, and notes; Ruston v. Ruston, Supra (2 Dall. 244); Brownfield v. Brownfield, 8 Har. 59; Root v. Stuyvesant, 18 Wend. 257; Jarvis v. Buttrick, 1 Met. 480; Morton v. Perry, Ib. 446; Fox v. Phelps, 17 Wend. 393; Wigram on Wills, 5th proposition, page 5, and cases cited in illustration thereof.

That when words, used in their strict and primary sense, are insensible, with reference to extrinsic circumstances, the court may look to those circumstances to see whether the meaning would be sensible in any popular or secondary sense, of which, with reference to those circumstances, they are capable, (third proposition, Wigram on Wills,) and that even without reference to such distinction, the court may look into the facts, where the construction claimed would render the devise or bequest inoperative. Smith v. Smith, 1 Edw. Ch. 189; Whilden v. Whilden, Riley's Ch. 205; Trustees v. Peaslee, 15 N. H. 317; Kinsey v. Rhem, 2 Iredell, 192; Ayres v. Weed, 16 Conn. 291; Hand v. Hoffman, 3 Halstead, 71; Allen v. Lyons, 2 Wash. C. C. R. 475, and cases cited of misnomer and misdescription generally. And that even the declarations of the testator, to prove a fact collateral to the question of intention in aid of the interpretation of words, may be admitted in evidence. 1 Greenl. Ev. § 291 and note; Trustees v. Peaslee, 15 N. H. 317; Ryerss v. Wheeler, 22 Wend. 148.

The plaintiffs' counsel will, moreover, in aid of the offer of evidence to show the inadequacy of the personal estate to satisfy the previous legacies, insist on the assertion of the substantive fact of a 'considerable surplus,' by the testator himself, which was only true upon the hypothesis that he did include real estate, in his estimate and devise, as necessitating a reference to the actual condition of his affairs at the time of making his will, for the purpose of showing that there was no such property as he is supposed to have intended by the word 'surplus,' while there was property answering the description of a surplus upon which the will might operate.

In further support of the proposition that the construction of the will in question may be aided and controlled by the proof of extrinsic facts and circumstances, the counsel for the plaintiffs in error will refer also to 1 Jarm. on Wills, 355, and note 1; Wilde's case, 6 Rep. 17; Roper, 60, 67 (3d ed.); Cartwright v. Vawdry, 5 Ves. 530; Lord Woodhouselee v. Dalrymple, 2 Mer. 419, Rose v. Bartlett, Cro. Car. 293; Davis v. Gibbs, 3 P. Wms. 26; Knottsford v. Gardiner, 2 Atk. 450; Thompson v. Lawley, 2 B. & P. 403; Day v. Trig, 1 P. Wms. 286; Fonnereau v. Poyntz, 1 Bro. C. C. 472; Druce v. Dennison, 6 Ves. 397; Finch v. Inglis, 3 Bro. C. C. 420; Attorney-General v. Grote, 3 Mer. 316; Colpoys v. Colpoys, Jac. 463; Smith v. d. Doe Jersey, 2 Brod. & Bingh. 553; Jeacock v. Falconer, 1 Bro. C. C. 296; Selwood v. Mildmay, 3 Ves. 306; Doe d. Belasyse v. Lucan, 9 East, 448; Attorney-General v. Vigor, 8 Ves. 256; Standen v. Standen, 2 Ves. 589; 3 Kent, 334, 335; Lowe v. Lord Huntingtower, 4 Russ. 532; 8 Rep. 155; Rewalt v. Ulrich, 11 Har. 388.

The points made by Mr. Loomis and Mr. Stanton were the following:--

1. In the disposition, by the will of Michael Allen, of the surplus remaining after the payment of all claims and bequests, there is neither doubt, uncertainty, nor ambiguity.

2. If that disposition be doubtful or uncertain, it must receive appropriate construction from the words of the will itself, and no parol proof or declaration ought to be admitted out of the will to ascertain it. Bradford v. Bradford, 6 Wharton, 244; Weatherhead's Lessee v. Baskerville et al. 11 How. 357, 358, 359; Murrell v. Livermore, 7 Eng. Com. Law, 9; 5 Barn. & Ald. 18.

3. In determining such construction, the heir at law is not, and especially those standing in the place of the common-law heir are not, to be disinherited, except by express devise, or by implication so inevitable that an intention to the contrary cannot be supposed. 1 Powell on Devises, 199; French v. M'Ilhenny, 2 Binney's Rep. 20; Clayton v. Clayton, 3 Binney's Rep. 484; Brown v. Dysinger et al. 1 Rawle, 415; Finley v. King's Lessee, 3 Pet. 379; Bradford v. Bradford, 6 Wharton, 244; Doe on dem. Spearing v. Buckner, 6 Term Rep. 611, 612, 613; Hayden v. Stoughton, 5 Pick. 536; Roosevelt v. Heirs of Fulton, 7 Cowen, 79, 187; Roper on Wills, 352, 358.

4. The application of the principles embraced in the last two points to the construction of the disposition before mentioned, will show clearly and conclusively that the title of the heirs of the testator to the real estate, of which he died seised, has not been thereby devested.

5. Parol evidence cannot be adduced to contradict, add to, or explain the contents of a will. Parol evidence of the actual intention of a testator is inadmissible for the purpose of controlling or influencing the construction of the written will. No word or phrase in the will can be diverted from its appropriate subject or object by extrinsic evidence. Wigram on Wills, 1st and 2d Rules; Ib. 24, 27, 80, 81, 82, 88-92, 96, 130; 1 Jarman on Wills, c. 14, pp. 349, 358; 11 How. 357, 358, 359; Farrar v. Ayres, 5 Pick. 409; Barrett v. Wright, 13 Pick. 48; Mann v. Mann, 14 Johns. 9, 14; S.C.. 1 Johns. Ch. 231.

6. There is but one case in which parol evidence of intention can properly be admitted, and that is where the meaning of the testator's words is neither ambiguous nor obscure, and where the devise is, on the face of it, perfect and intelligible; but from some of the circumstances admitted in proof, an ambiguity arises as to which of the two or more things, or which of the two or more persons, (each answering the words in the will,) the testator intended to express. 1 Greenl. Ev. § 289; Hiscocks v. Hiscocks, 5 Mee. & Wels. 363, 367; Atkinson's Lessee v. Cummins, 9 How. 486; Miller v. Travers, 8 Bingh. Rep. 244; 21 Eng. Com. Law Rep. 290; Aspden Estate, 2 Wallace's Rep. 448.

7. A testator's parol declarations are not admissible to control the construction of his will, nor is evidence, as to the state of his property, admissible for that purpose. Ryeres v. Wheeler, 22 Wend. 151; Fonnereau v. Poyntz, 1 Bro. Ch. R. 472; Roberts on Wills, 24, 34; Brown v. Selwyn, Cases Temp. Talbot, 240; Attorney-General v. Grote, 3 Mer. 316; 10 Wheat. 229; 3 Halsted, 71.

Mr. Justice CATRON delivered the opinion of the court.

title: Wilkins v. Allen


text: Talk:Wilkins v. Allen

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title: Talk:Wilkins v. Allen


text:
Wilkins v. Allen/Opinion of the Court

Michael Allen, of the city of Pittsburg, made his will in 1849, by which he bequeathed to his wife, for life, his dwelling-house in said city, with two lots of ground occupied by him and her as a garden. He also gave her the household furniture and library. 'And still furthermore,' he declares, 'that, first and foremost, there shall be secured to my dear wife, on my real and personal estate, an annuity of twelve hundred dollars a year, to be punctually paid semiannually during her lifetime, and that my executors pay all the taxes on the premises occupied by my dear wife during her lifetime.'

The testator then bequeathes: 1st, To the five children of Dr. Robert Wray, five hundred dollars each. 2d. To the managers of the orphan asylums of the cities of Pittsburg and Alleghany, two thousand dollars each. 3d. To the pastor and sessions of the First Presbyterian Church, two thousand dollars. 4th. To the general assembly of the Presbyterian church, ten thousand dollars. 5th. To the trustees of the board of sessions of said general assembly, four thousand dollars. 6th. To the Foreign Evangelical Society, located in New York, three thousand dollars. 7th, 8th, and 9th, he gave for the use of the Presbyterian church, eleven thousand dollars. 10th. To the American Bible Society, six thousand dollars. 11th. To the American Tract Society, four thousand dollars. 12th. For the use of the Sunday School Union, situate in Philadelphia, four thousand dollars.

He next declares: 'As to my debts, they will amount to very little; but, and after paying all claims and bequests, there will remain a considerable surplus, which I give and bequeathe in trust to my executors, be the same more or less, to be applied to the religious and benevolent purposes of the several institutions of the general assembly of the Presbyterian church in the United States of America, as before mentioned;' and then constitutes and appoints his executors (who are the plaintiffs in error) to carry out the provisions of the will.

The defendants in error are the heirs at law of Michael Allen. They sued his executors in ejectment to recover a portion of the lands situate in the city of Pittsburg, of which he died seised, insisting that the lands did not pass by the will.

The residuary clause was supposed to be of doubtful meaning and obscure. To remove the alleged obscurity, the defendants below offered to prove on the trial, 'from memoranda made by the testator at the time of the execution of said last will and testament, and upon the basis of which the same was prepared by him, and also by declarations made by him at and about the same time, what was his real meaning in the employment of the word 'surplus' in the residuary clause of said will, and that the same was intended to comprehend his whole remaining estate, as well real as personal.'

'And further, to show by other evidence, besides the said memoranda, the actual amount and condition of the personal estate at the time of the execution of the said last will and testament, as well as at the period of the testator's death, and that the same was entirely insufficient, at either of the said periods, to pay the specific and pecuniary legacies provided therein; and this, for the purpose of explaining the meaning of the testator in the said residuary clause, and the employment of the said word 'surplus' therein, by showing that, if the same did not embrace the real estate, the said residuary clause would be entirely inoperative, for the reason that there was, in point of fact, under such construction, at neither of said periods, any surplus whatever, as supposed and declared by the testator himself.'

On motion of the plaintiffs, the court rejected the evidence, and instructed the jury that no title vested in the executors by the residuary clause.

On this state of facts, the first question presented for our consideration is, whether the terms of the will are sufficient in themselves, when interpreted by their context, to carry the real estate to the executors?

As, in this instance, the testator's language must be construed with reference to the laws and policy of the country of his domicile, it is our duty to ascertain what the laws and policy of Pennsylvania are, so far as they may have a controlling influence in the construction of this will.

In the first place, Pennsylvania has only so far altered the English common law as to substitute all the children for the sole heir, carrying out this rule of descent though the collateral branches. This is the will the law makes in case of intestacy, and is the policy of the State. Under the law, the heirs must take, unless they are 'disinherited by express words, or necessary implication.' 'Conjecture, nor uncertainty, shall never disinherit him.' Such was the ground assumed by counsel in the case of Clayton v. Clayton, 3 Binney, 481, and which assumption was sustained by the court; ib. 486. Chief Justice Tilghman says: 'The rule of law gives the estate to the heir, unless the will takes it from him; and, in order to take it from him, it must give it to some other person. Thus we are brought back to the question, are here any words in the will sufficient to convey more than an estate for life to the devisees. I can find none.' In the case referred to, the testator devised a homestead to his niece, Sarah Evans, and her children, without adding the word heirs. That he intended to give an estate in fee was hardly open to controversy; but the words of the will did not carry the fee, and the court refused to follow a doubtful intention. It there came fairly up to the rule laid down in the English case of Mudge v. Blight et ux. Cowp. 355, that 'where there are no words of limitation, the court must determine in the case of a devise affecting real estate, that the devisee has only an estate for life, because the principle is fully settled and established, and no conjecture of a private imagination can shake a rule of law. If the intention of the testator is doubtful, the rule of law must take place; and so if the court cannot find words in the will sufficient to carry a fee. Though they should themselves be satisfied beyond the possibility of a doubt, as to what the intention of the party was, they must adhere to the rule of law.'

This decision was made in 1811, and the principles then laid down have since been adhered to with uncommon care and strictness.

In speaking of expressions in a will necessary to disinherit the heir, Chief Justice Gibson, in delivering the opinion of the court in the case of Bradford v. Bradford, 6 Wharton, 244, says: 'The intention must be manifest, and rest on something more certain than conjecture. The court must proceed on known principles and established rules, not on loose conjectural interpretations, nor considering what a man may be imagined to do in the testator's circumstances. The principle is applicable in all its force in a case like the present, in which the question goes to the birthright of those who, standing in place of the common-law heir, are not to be disinherited except by express devise, or, as is said in 1 Powell on Devises, 199, by implication so inevitable that an intention to the contrary cannot be supposed.'

It is there admitted that when the testator provided that 'all his worldly goods of all sorts and kinds' should be vested in trust and held as one fund, for a hundred years, and his children and their descendants should receive the rents and profits, that he most probably intended to include his lands. This, however, (the court declares,) is no more than a confident conjecture, and that it must come at last to an analysis of the testator's language to ascertain the legal meaning of the will.

Now, testing the will before us by these rules, and where can any provision be found in it showing a plain intention to disinherit the heirs? The lands are never named except where the wife is given a life estate in the homestead, and two lots, and, secondly, where her annuity of twelve hundred dollars is imposed on the goods and lands as a charge.

But as the residuary clause is mainly relied on, as carrying the real estate to the executors, it is proper that some further notice should be taken of its import. The testator declared that his debts amounted to very little, and that, after paying all claims and bequests, there would remain a considerable surplus, and this he bequeathed to his executors, to be applied to religious and benevolent purposes. He did not indicate any new fund, nor a surplus arising from the sale of lands, in the concluding clause of the will more than in any previous clause, where he provided for the support of the Presbyterian church.

The terms of the will, proprio vigore, being insufficient to disinherit the heirs, the next question is, whether the interpretation thereof may not be aided by extrinsic circumstances, namely, memoranda, declaration, and the actual amount and condition of the estate, as offered to be shown by the defendants below.

That the court may put itself in the place of the testator, by looking into the state of his property, and the circumstances by which he was surrounded when he made the will, is not only true as a general proposition, but without such information it must often happen that the will could not be sensibly construed. Wigram (10, 60) lays down the rule with much distinctness. Such evidence, however, is only admissible to explain ambiguities arising out of extrinsic circumstances, as to persons provided for, objects of disposition, and the like. For instance, if the testator gave to his grandson, J. S., a plantation, and he had two grandsons of that name; or he devised his son J. his plantation on a certain river, and he had two plantations there,-in each case proof might be heard to show the person or thing intended. But evidence cannot be heard to show a different intention in the testator from that which the will discloses.

Such is the established doctrine of this court, as was held in the case of Weatherhead v. Barksdale, 11 How. 357.

The only English case we will refer to is that of Miller v. Traverse, 8 Bingh. 248. There the testator devised and vested in trust 'all his freehold and real estates whatsoever in the county of Limerick, and the city of Limerick,' At the time of making the will, he had no real estate in the county of Limerick, but had a small estate in the city of Limerick, and considerable real estate in the county of Clare; and the question was, whether the devisees could be admitted to have an issue and trial at law on the ground that they offered to prove that, by the original draft of the will, the estates in Clare were included, and the county left out by oversight or mistake; and also that the testator so expressed himself.

The lord chancellor was assisted by the chief justice of the common pleas and the chief baron, and they all concurred in holding that the evidence offered could not be heard to change the import of the will, and refused the issue. And so it is manifest here, that if the evidence were to show all that is assumed for it, yet it could not be heard to affect this will.

It is ordered that the judgment of the circuit court be affirmed.

title: Wilkins v. Allen/Opinion of the Court


text: Talk:Wilkins v. Allen/Opinion of the Court


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Connor v. Peugh's Lessee

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

The counsel for the defendant in error moved to dismiss the writ of error under the following circumstances:--

An action of ejectment was brought by Peugh's lessee to recover the eastern half part of lot number seven, in the square or reservation marked B in the city of Washington. A copy of the declaration was served on Mrs. Connor, on the 15th March, 1854, the court being about to meet on the 27th, and the rules requiring the service to be made at least ten days before court. At the term of March, there being no appearance for the defendant, a motion was made by the plaintiffs' counsel for judgment against the casual ejector, which was postponed till next term.

At October term, 1854, judgment was entered against the casual ejector, and also against Mary Ann Connor, the tenant in possession.

On the 24th of March, 1855, a writ of habere facias possessionem was sued out, which was returned, 'came to hand too late for service.'

On the 23d of May, 1855, an alias writ was issued, returnable on third Monday of October thereafter.

Before the return day of this writ, namely, on the 5th of June, 1855, Mrs. Connor appeared in court by her counsel and moved to set aside the judgment and also to quash the writ of ''hab. fac. poss.'', upon the ground that a copy of the declaration was not served upon her ten days before the meeting of the court at March term, 1854. In which case no judgment by default ought to have been rendered against her until March term, 1855.

At October term, 1855, this motion was overruled and the petition was dismissed. Whereupon, Mrs. Connor prayed an appeal to the supreme court of the United States, which was granted.

A writ of error brought the whole proceedings up to this court.

The motion to dismiss upon the ground that the ruling of the court below in dismissing the petitioner was a matter within the sound discretion of the court, and not the subject of a writ of error, was argued by Mr. Bradley and Mr. Lawrence in support of it, and opposed by Mr. Brent.

Mr. Justice GRIER delivered the opinion of the court.

title: Connor v. Peugh's Lessee


text: Talk:Connor v. Peugh's Lessee

title: Talk:Connor v. Peugh's Lessee


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Connor v. Peugh's Lessee/Opinion of the Court

Defendant in error moves to dismiss the writ of error in this case. It is an action of ejectment brought in the circuit court of this district in the usual form, by serving a declaration on the tenant in possession with notice. The declaration and notice were served by the marshal, more than ten days before March term, 1854. The tenant did not appear and have herself made defendant in place of the casual ejector, according to the exigency of the notice; and at October term a judgment was entered against the casual ejector, in the usual and proper form. On the 5th of June, 1855, the tenant in possession came into court for the first time, and moved to set aside the judgment and execution issued thereon, and to be allowed to defend the suit, for reasons set forth in her affidavit. The court refused to grant this motion, 'whereupon the said Mary Ann Connor prayed an appeal,' &c.

The tenant in possession having neglected to appear and have herself made defendant, and confess lease, entry, and ouster, the judgment was properly entered against the casual ejector. No one but a party to the suit can bring a writ of error. The tenant having neglected to have herself made such, cannot have a writ of error to the judgment against the casual ejector.

The motion afterwards made to have the judgment set aside, and for leave to intervene, was an application to the sound discretion of the court. To the action of the court on such a motion no appeal lies, nor is it the subject of a bill of exceptions or writ of error.

Writ of error dismissed.


text: Talk:Connor v. Peugh's Lessee/Opinion of the Court


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South v. Maryland

THIS case came up by writ of error from the circuit court of the United States for the District of Maryland, having been tried in that court by the late Judge Glenn, district judge.

It was an action brought in the name of the State of Maryland by Pottle upon a sheriffs' bond given by South with the other plaintiffs in error as sureties. Under the instructions of the court below, the verdict and judgment were for the plaintiff. Being brought to this court, by writ of error, it was argued at a former term, and was ordered to be reargued and the following questions suggested for discussion:--

1. Whether or not, the declaration contains a cause of action entitling the plaintiff (Pottle) to recover against the sheriff and his sureties within the condition of the official bond, according to the laws of the State of Maryland?

2. Whether or not, the sheriff, as conservator of the public peace, is liable to a civil action for an injury to the person or property of an individual, from a riotous assembly or mob, according to any law of the State of Maryland, if it should appear said sheriff unreasonably omitted or neglected to exert his authority to suppress it?

3. Whether or not the sheriff, as conservator of the public peace, is liable to the plaintiff in an execution, attending personally upon the levy or sale under it, for an injury to his person or property from a riotous assembly or mob, according to any law of the State of Maryland, if it should appear that said sheriff unreasonably omitted or neglected to exert his authority to suppress it?

4. Whether or not, on the case last stated, the sheriff would be liable to the plaintiff in the execution, if he desisted in good faith from the exertion of his authority at the instance and request of said plaintiff, while in the hands of the mob, from an apprehension of greater bodily injury if an effort should be made to suppress it?

It was again argued at this term by Mr. Nelson, for the plaintiffs in error, and by Mr. Dobbin and Mr. Johnson, for the defendant.

As the case turned upon the sufficiency of the declaration, which sets out the case, it is thought propoer to insert it, viz: Narr.

UNITED STATES OF AMERICA,

District of Maryland, sct.

Daniel South, John W. Stouffer, Jacob Fierey, Daniel Middlekauff, senior, and John A. K. Brewer, late of said district, citizens of the State of Maryland, were summoned to answer unto the State of Maryland, of a plea that they render unto the said State the sum of twenty-six thousand six hundred and sixty-six dollars and sixty-six and two third cents, which to the said State they owe, and from the said State unjustly detain: And whereupon the said State, by Dobbin and Talbott, its attorneys, complains that whereas the said defendants, on the seventeenth day of December, in the year eighteen hundred and forty-nine, at the district aforesaid, by their certain writing obligatory, sealed with their seals, and to the court now here shown, whose date is the day and year aforesaid, acknowledged themselves to be held and firmly bound to the said plaintiff in the just and full sum of twenty-six thousand six hundred and sixty-six dollars and sixty-six and two third cents, to be paid to the said plaintiff whenever afterwards they, the said defendants, should be thereto required, which said writing was and is subject to a certain condition thereunder written, to wit: That if the said Daniel South, as sheriff of Washington County, did and should well and faithfully execute that same office in all things appertaining thereto, and should also render to the several officers within the said State a just and true account of all fees placed in his hands for collection within the times limited by law, and should also well and truly pay all sums of money received by him, and also collect and pay all public dues, fines, and forfeitures, which are due or belonging to the State, and should also well and faithfully execute and return all writs, process, and warrants, to him directed and delivered, and should also pay and deliver to the person or persons entitled to receive the same all sum or sums of money, tobacco, goods, chattels, or property by him levied, seized, or taken, agreeably to the directions of the writ, process, or warrant under which the same should be levied and seized; and should also detain and keep in his custody all and every person and persons committed to his custody, or by him taken in execution, or who should be committed for the want of bail, without suffering them or any of them to escape or depart from his custody; and should also pay and satisfy all judgments which should or might be rendered against him as sheriff, and should also well and truly execute and perform the several duties required of and imposed upon him by the laws of said State, then the said obligation was to be void and of none effect, otherwise to remain in full force and virtue in law.

And the said plaintiff further saith, that the said Daniel South, at the time of making the writing obligatory aforesaid mentioned, and long before and thereafter, and at the time of, and after the committing the wrongs hereinafter complained of, was sheriff of Washington county, in the State aforesaid, duly elected, commissioned, and qualified, and by the duty of his office of sheriff aforesaid, and according to the tenor and effect of the condition of the writing obligatory aforesaid, ought to have preserved and maintained the peace of the State of Maryland, in the county of Washington aforesaid.

And the said plaintiff further saith, that a certain Jonathan W. Pottle, a citizen of the State of Massachusetts, in the indorsement of the writ original in this cause mentioned, at whose instance and for whose use the same is instituted, was, after the making of said writing obligatory, and during the time within which said Daniel was sheriff as aforesaid, to wit, on the within day of June, in the year eighteen hundred and fifty, lawfully present in Washington county aforesaid, and engaged in and about his lawful business; and the said Daniel South, sheriff as aforesaid, was then and there also present with the said Jonathan W. Pottle, when certain evil-disposed persons came about the said Jonathan W. Pottle, and by force and arms hindered and prevented him in the execution of his lawful business, and threatened the life and personal safety of the said Jonathan W. Pottle, and with force and arms demanded of said Jonathan W. Pottle a large sum of money, the property of the said Jonathan W. Pottle, to wit, the sum of twenty-five hundred dollars, and then and there unlawfully and injuriously, and against the will of the said Jonathan W. Pottle, and also against the laws of the said State, and without any legal warrant, authority, or legal or justifiable cause whatsoever, did imprison, and detain so imprisoned there the said Jonathan W. Pottle for a long space of time, to wit, for the space of four days then next ensuing, and until he, the said Jonathan W. Pottle, had paid to the said evildisposed persons the sum of two thousand five hundred dollars for his enlargement, and other wrongs to the said Jonathan W. Pottle then and there did, to the great damage of the said Jonathan W. Pottle, and against the peace of the State of Maryland.

And the said Jonathan W. Pottle then and there applied to the said Daniel South, sheriff as aforesaid, then and there present, to protect and defend him, the said Jonathan, from the said unlawful conduct and threatened violence of the said evil-disposed persons, and to preserve and keep the peace of the State of Maryland, in Washington county aforesaid, the said Daniel South, sheriff as aforesaid, then and there having the power and authority so to do. But the said Daniel South, sheriff as aforesaid, did then and there neglect and refuse to protect and defend the said Jonathan from the said unlawful conduct and threatened violence of the said evil-disposed persons, and to preserve and keep the peace of the State of Maryland, in Washington county aforesaid; and so the said plaintiff saith that the said Daniel South did not well and faithfully execute the office of sheriff of Washington county, in all things appertaining thereto according to the form and effect of the condition aforesaid, to wit, at the district aforesaid, whereby the said writing obligatory became forfeited, by reason whereof an action hath accrued to the said plaintiff to demand and have of and from the said defendants the said sum of twenty-six thousand six hundred and sixty-six dollars and sixty-six and two third cents.

Nevertheless, the said defendants, although often requested, have not, nor hath either of them paid the said sum of money above demanded of them, or any part thereof, but so to do have hitherto wholly refused, and still do refuse, to the damage of the said plaintiff twenty thousand dollars; and thereupon it brings suit, &c.

DOBBIN AND TALBOTT, For plaintiff.

Mr. Nelson, for the plaintiffs in error, made the following points, viz:--

1. That the declaration contains no cause of action entitling the plaintiff to recover against the sheriff and his sureties within the condition of the official bond, according to the laws of the State of Maryland.

2. That the sheriff, as conservator of the public peace, is not liable to a civil action for an injury to the person or property of an individual from a riotous assembly, or mob, according to any law of the State of Maryland, even if it should appear that said sheriff unreasonably omitted or neglected to exert his authority to suppress it. 1 Thomas's Coke, 81, 82; Comyn's Dig. tit. Viscount-authority of a sheriff (c. 1.); Watson's Sheriff, 2, 3; 1 Perry & Davidson, 297; Pitcher v. King, 2 Barnewall & Ald. 473; Hilary v. Breare and Holmes, 1 Moody & Malkin, 52; Tensley v. Nassau, 7 State Trials, 442; 6 Howell, 1094; Soames v. Barrardister; 12 Coke, 24.

3. That the sheriff, as conservator of the public peace is not liable to the plaintiff in an execution attending personally upon the levy or sale under it for an injury to his person or property from a riotous assembly or mob, according to any law of the State of Maryland, even if it should appear that said sheriff unreasonably omitted or neglected to exert his authority to suppress it.

4. That in the case last stated the sheriff would not be liable to the plaintiff in the execution, if he desisted in good faith from the exertion of his authority at the instance and request of said plaintiff, while in the hands of the mob from an apprehension of greater bodily injury if an effort should be made to suppress it. 6 Barn. & Cress. 739, Cook and others v. Palmer; 8 Barn. & Cress. 598; 7 Missouri, 536; 13 Ibid. 437.

5. That however true it may be as a general proposition, that the sheriff is responsible for the acts and omissions of his deputy, yet that in this case no such responsibility exists, because, by his declaration, the plaintiff charged no such acts or omissions.

6. That there was error in the instruction give by the court below; because it took from the jury the inquiry whether the omission of the sheriff to exert his authority to suppress the riot, was unreasonable or otherwise.

Mr. Dobbin and Mr. Johnson, for the defendant in error, made the following points, viz:--

1. That the sheriff, South, was virtute officii, the conservator of the peace of the State. Dalton on Sheriff, 26; Com. Dig. Sheriff, C. a, C. 1, C. 2; 2 Hawk, P. C. c. 8, § 4; Cro. Car. 27; 8 Bac. Abr. 689, tit. Sheriff, L.

2. That, as sheriff, he was responsible for the acts and omissions of his deputies; and that, whether so or not, South, the high sheriff, having been present during two days of the riot, became responsible for all omissions of his official duty after such presence. Dalton, 176; 8 Bac. Abr. 675; 2 McLean, 193; 6 Shep. 277; 2 App. 93.

3. That the sheriff's official bond, which is here the subject of suit, is liable for every failure on his part to faithfully execute his office of sheriff in any thing appertaining thereto, and that his failure to protect and relieve Pottle was a breach of the condition of the bond, upon which a right of action accrued to Pottle against the sheriff and his sureties. 1 Pet. 46; 12 Pick, 303; 6 Wend. 454.

4. That the sheriff, having permitted the said unlawful duress of imprisonment to be made and continued, is not discharged from liability therefor by any declaration made by Pottle during such duress.

Mr. Justice GRIER delivered the opinion of the court.

title: South v. Maryland


text: Talk:South v. Maryland

title: Talk:South v. Maryland


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South v. Maryland/Opinion of the Court

In this case a verdict was rendered for the plaintiff in the court below, and the defendant moved, in arrest of judgment, 'that the matters set out in the declaration of the plaintiff are not sufficient, in law, to support the action.' If it be found that the court erred in overruling this motion and in entering judgment on the verdict, a consideration of the other points raised on the trial will be unnecessary.

The action is brought on the official bond of South, as sheriff of Washington county. The declaration sets forth the condition of the bond at length. The breach alleged is, in substance, 'that while Pottle was engaged about his lawful business, certain evildisposed persons came about him, hindered and prevented him, threatened his life, with force of arms demanded of him a large sum of money, and imprisoned and detained him for the space of four days, and until he paid them the sum of $2,500 for his enlargement.'

That South, the sheriff, being present, the plaintiff, Pottle, applied to him for protection, and requested him to keep the peace of the State of Maryland, he, the said sheriff, having power and authority so to do. That the sheriff neglected and refused to protect and defend the plaintiff, and to keep the peace, wherefore, it is charged, 'the sheriff did not well and truly execute and perform the duties required of him by the laws of said State;' and thereby the said writing obligatory became forfeited, and action accrued to the plaintiff.

This declaration does not charge the sheriff with a breach of his duty in the execution of any writ or process in which Pottle, the real plaintiff in this case, was personally interested, but a neglect or refusal to preserve the public peace, in consequence of which the plaintiff suffered great wrong and injury from the unlawful violence of a mob. It assumes as a postulate, that every breach or neglect of a public duty subjects the officer to a civil suit by any individual who, in consequence thereof, has suffered loss or injury; and consequently, that the sheriff and his sureties are liable to this suit on his bond, because he has not 'executed and performed all the duties required of and imposed on him by the laws of the State.'

The powers and duties of the sheriff are usually arranged under four distinct classes:--

1. In his judicial capacity, he formerly held the sheriff's tourn, or county courts, and performed other functions which need not be enumerated.

2. As king's bailiff, he seized to the king's use all escheats, forfeitures, waifs, wrecks, estrays, &c.

3. As conservator of the peace in his county or bailiwick, he is the representative of the king, or sovereign power of the State for that purpose. He has the care of the county, and, though forbidden by magna charta to act as a justice of the peace in trial of criminal cases, he exercises all the authority of that office where the public peace was concerned. He may upon view, without writ or process, commit to prison all persons who break the peace or attempt to break it; he may award process of the peace, and bind any one in recognizance to keep it. He is bound, ex officio, to pursue and take all traitors, murderers, felons, and other misdoers, and commit them to jail for safe custody. For these purposes he may command the posse comitatus or power of the country; and this summons, every one over the age of fifteen years is bound to obey, under pain of fine and imprisonment.

4. In his ministerial capacity he is bound to execute all processes issuing from the courts of justice. He is keeper of the county jail, and answerable for the safe-keeping of prisoners. He summons and returns juries, arrests, imprisons, and executes the sentence of the court, &c. &c. 1 Black. Com. 343; 2 Hawk, P. C. C. 8, § 4, &c. &c.

Originally, the office of sheriff could be held by none but men of large estate, who were able to support the retinue of followers which the dignity of his office required, and to answer in damages to those who were injured by his neglect of duty in the performance of his ministerial functions. In more modern times, a bond with sureties supplies the place of personal wealth. The object of these bonds is security, not the imposition of liabilities upon the sheriff, to which he was not subject at common law. The specific enumeration of duties in the bond in this case includes none but those that are classed as ministerial. The general expression, in conclusion, should be construed to include only such other duties of the same kind as were not specially enumerated. To entitle a citizen to sue on this bond to his own use, he must show such a default as would entitle him to recover against the sheriff in an action on the case. When the sheriff is punishable by indictment as for a misdemeanor, in cases of a breach of some public duty, his sureties are not bound to suffer in his place, or to indemnify individuals for the consequences of such a criminal neglect.

It is an undisputed principle of the common law, that for a breach of a public duty, an officer is punishable by indictment; but where he acts ministerially, and is bound to render certain services to individuals, for a compensation in fees or salary, he is liable for acts of misfeasance or non-feasance to the party who is injured by them.

The powers and duties of conservator of the peace exercised by the sheriff are not strictly judicial; but he may be said to act as the chief magistrate of his county, wielding the executive power for the preservation of the public peace. It is a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.

The history of the law for centuries proves this to be the case. Actions against the sheriff for a breach of his ministerial duties in the execution of process are to be found in almost every book of reports. But no instance can be found where a civil action has been sustained against him for his default or misbehavior as conservator of the peace, by those who have suffered injury to their property or persons through the violence of mobs, riots, or insurrections.

In the case of Entick v. Carrington, State Trials, vol. 19, page 1062, Lord Camden remarks: 'No man ever heard of an action against a conservator of the peace, as such.'

The case of Ashby v. White, 2 Lord Raym. 938, has been often quoted to show that a sheriff may be liable to a civil action where he has acted in a judicial, rather than a ministerial capacity. This was an action brought by a citizen entitled to vote for member of parliament, against the sheriff for refusing his vote at an election. Gould, justice, thought the action would not lie, because the sheriff acted as a judge. Powis, because, though not strictly a judge, he acted quasi judicially. But Holt, C. J., decided that the action would lie: 1. 'Because the plaintiff had a right or privilege. 2. That, by the act of the officer, he was hindered from the enjoyment of it.' 3. By the finding of the jury the act was done maliciously. The later cases all concur in the doctrine, that where the officer is held liable to a civil action for acts not simply ministerial, the plaintiff must allege and prove each of these propositions. See Cullen v. Morris, 2 Starkie, N. P. C.; Harman v. Tappenden, 1 East, 555, &c. &c.

The declaration in the case before us is clearly not within the principles of these decisions. It alleges no special individual right, privilegs, or franchise in the plaintiff, from the enjoyment of which he has been restrained or hindered by the malicious act of the sheriff; nor does it charge him with any misfeasance or non-feasance in his ministerial capacity, in the execution of any process in which the plaintiff was concerned. Consequently, we are of opinion that the declaration sets forth no sufficient cause of action.

The judgment of the circuit court is therefore reversed.

title: South v. Maryland/Opinion of the Court


text: Talk:South v. Maryland/Opinion of the Court


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Lafayette Insurance Company v. French

THIS case was brought up, by a writ of error, from the circuit court of the United States for the district of Indiana.

In 1836, the legislature of Indiana chartered the Lafayette Insurance Company with the usual powers of a company to insure against losses by fire. Their principal office or place of business was at Lafayette, in Indiana, but they also had an office at Cincinnati, in the county of Hamilton and State of Ohio. At the latter place, the agent issued a policy to the defendants in error, to insure certain property against fire, which was afterwards consumed. An action was brought upon the policy in Ohio, the process being served upon the agent, and a judgment was entered against the company. Upon a record of this judgment, an action was brought in the circuit court of the United States, in Indiana, and judgment again entered against the company.

Upon the trial the plaintiffs offered in evidence a copy of the record of the case, as tried in Ohio, to the introduction of which the defendant objected for the following reasons, namely:--

1. Because said judgment record shows and evidences a judgment recovered against 'The President, Directors, and Company of the Lafayette Insurance Company,' and does not show or evidence the recovery of a judgment against this defendant.

2. Because said judgment record does not show or evidence the service of process upon this defendant as required by law, nor the appearance of this defendant by attorney, or otherwise in said action or suit in said commercial court, and that said judgment, as a judgment, is therefore a nullity.

3. Because the said judgment record does not evidence the existence of rendition of a judgment in personam against said defendant.

But the court admitted the evidence. Some of the counts in the declaration being upon the policy as well as the record, the plaintiffs then introduced evidence to show the loss, value, &c. of the property insured. Judgment was rendered against the defendants for $2,817.11.

It was argued in this court by Mr. Gillett, for the plaintiff in error, and submitted upon a printed argument by Mr. O. H. Smith, for the defendants.

Pending the argument a copy of a law of Ohio was produced (Ohio General Laws, vol. 45, p. 17) entitled 'An act to authorize suits upon contracts of insurance to be brought in the county in which the contract may be made,' the third section of which provided for the service of process, as in this case.

Mr. Justice CURTIS delivered the opinion of the court.

title: Lafayette Insurance Company v. French


text: Talk:Lafayette Insurance Company v. French


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Lafayette Insurance Company v. French/Opinion of the Court

This is a writ of error to the circuit court of the United States for the district of Indiana, in an action of debt on a judgment recovered in the commercial court of Cincinnati, in the State of Ohio. In the declaration, the plaintiffs are averred to be citizens of Ohio; and they 'complain of the Lafayette Insurance Company, a citizen of the State of Indiana.' This averment is not sufficient to show jurisdiction. It does not appear from it that the Lafayette Insurance Company is a corporation; or, if it be such, by the law of what State it was created. The averment, that the company is a citizen of the State of Indiana, can have no sensible meaning attached to it. This court does not hold, that either a voluntary association of persons, or an association into a body politic, created by law, is a citizen of a State within the meaning of the constitution. And, therefore, if the defective averment in the declaration had not been otherwise supplied, the suit must have been dismissed. But the plaintiff's replication alleges that the defendants are a corporation, created under the laws of the State of Indiana, having its principal place of business in that State. These allegations are confessed by the demurrer; and they bring the case within the decision of this court in Marshall v. The Baltimore and Ohio Railroad Company, 16 How. 314, and the previous decisions therein referred to.

Upon the merits, it was objected that the judgment declared on was rendered by the commercial court of Cincinnati, without jurisdiction over the person sued; and the argument was, that as this corporation was created by a law of the State of Indiana, it could have no existence out of that State, and, consequently, could not be sued in Ohio.

The precise facts upon which this objection depends, are that this corporation was created by a law of the State of Indiana, and had its principal office for business within that State. It had also an agent authorized to contract for insurance, who resided in the State of Ohio. The contract on which the judgment in question was recovered was made in Ohio, and was to be there performed; because it was a contract with the citizens of Ohio to insure property within that State. A statute of Ohio makes special provision for suits against foreign corporations, founded on contracts of insurance there made by them with citizens of that State; and one of its provisions is, that service of process on such resident agent of the foreign corporation shall be 'as effectual as though the same were served on the principal.'

The question is, whether a judgment recovered in Ohio against the Indiana corporation, upon a contract made by that corporation in Ohio with citizens of that State to insure property there, after the law above mentioned was enacted-service of process having been made on such resident agent-is a judgment entitled to the same faith and credit in the State of Indiana as in the State of Ohio, under the constitution and laws of the United States.

No question has been made that this judgment would be held binding in the State of Ohio, and would there be satisfied out of any property of the defendants existing in that State.

The act of May 26, 1790, (1 Stats. at Large, 122,) gives to a judgment rendered in any State such faith and credit as it had in the courts of the State where it was recovered. But this provision, though general in its terms, does not extend to judgments rendered against persons not amenable to the jurisdiction rendering the judgments. D'Arcy v. Ketchum, 11 How. 165. And, consequently, notwithstanding the act of congress, whenever an action is brought in one State on a judgment recovered in another, it is not enough to show it to be valid in the State where it was rendered; it must also appear that the defendant was either personally within the jurisdiction of the State, or had legal notice of the suit, and was in some way subject to its laws, so as to be bound to appear and contest the suit, or suffer a judgment by default. In more general terms, the doctrine of this court, as well as of the courts of many of the States, is, that this act of congress was not designed to displace that principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result; nor those rules of public law which protect persons and property within one State from the exercise of jurisdiction over them by another.

This corporation, existing only by virtue of a law of Indiana, cannot be deemed to pass personally beyond the limits of that State. Bank of Augusta v. Earle, 13 Pet. 519. But it does not necessarily follow that a valid judgment could be recovered against it only in that State. A corporation may sue in a foreign state, by its attorney there; and if it fails in the suit, be subject to a judgment for costs. And so if a corporation, though in Indiana, should appoint an attorney to appear, in an action brought in Ohio, and the attorney should appear, the court would have jurisdiction to render a judgment, in all respects as obligatory as if the defendant were within the State. The inquiry is not whether the defendant was personally within the State, but whether he, or some one authorized to act for him in reference to the suit, had notice and appeared; or, if he did not appear, whether he was bound to appear or suffer a judgment by default.

And the true question in this case is, whether this corporation had such notice of the suit, and was so far subject to the jurisdiction and laws of Ohio, that it was bound to appear, or take the consequences of non-appearance.

A corporation created by Indiana can transact business in Ohio only with the consent, express or implied, of the latter State, 13 Pet. 519. This consent may be accompanied by such conditions as Ohio may think fit to impose; and these conditions must be deemed valid and effectual by other States, and by this court, provided they are not repugnant to the constitution or laws of the United States, or inconsistent with those rules of public law which secure the jurisdiction and authority of each State from encroachment by all others, or that principle of natural justice which forbids condemnation without opportunity for defence.

In this instance, one of the conditions imposed by Ohio was, in effect, that the agent who should reside in Ohio and enter into contracts of insurance there in behalf of the foreign corporation, should also be deemed its agent to receive service of process in suits founded on such contracts. We find nothing in this provision either unreasonable in itself, or in conflict with any principle of public law. It cannot be deemed unreasonable that the State of Ohio should endeavor to secure to its citizens a remedy, in their domestic forum, upon this important class of contracts made and to be performed within that State, and fully subject to its laws; nor that proper means should be used to compel foreign corporations, transacting this business of insurance within the State, for their benefit and profit, to answer there for the breach of their contracts of insurance there made and to be performed.

Nor do we think the means adopted to effect this object are open to the objection, that it is an attempt improperly to extend the jurisdiction of the State beyond its own limits to a person in another State. Process can be served on a corporation only by making service thereof on some one or more of its agents. The law may, and ordinarily does, designate the agent or officer, on whom process is to be served. For the purpose of receiving such service, and being bound by it, the corporation is identified with such agent or officer. The corporate power to receive and act on such service, so far as to make it known to the corporation, is thus vested in such officer or agent. Now, when this corporation sent its agent into Ohio, with authority to make contracts of insurance there, the corporation must be taken to assent to the condition upon which alone such business could be there transacted by them; that condition being, that an agent, to make contracts, should also be the agent of the corporation to receive service of process in suits on such contracts; and, in legal contemplation, the appointment of such an agent clothed him with power to receive notice, for and on behalf of the corporation, as effectually as if he were designated in the charter as the officer on whom process was to be served; or, as if he had received from the president and directors a power of attorney to that effect. The process was served within the limits and jurisdiction of Ohio, upon a person qualified by law to represent the corporation there in respect to such service; and notice to him was notice to the corporation which he there represented, and for whom he was empowered to take notice.

We consider this foreign corporation, entering into contracts made and to be performed in Ohio, was under an obligation to attend, by its duly authorized attorney, on the courts of that State, in suits founded on such contracts, whereof notice should be given by due process of law, served on the agent of the corporation resident in Ohio, and qualified by the law of Ohio and the presumed assent of the corporation to receive and act on such notice; that this obligation is § well founded in policy and morals, and not inconsistent with an principle of public law; and that when so sued on such contracts in Ohio, the corporation was personally amenable to that jurisdiction; and we hold such a judgment, recovered after such notice, to be as valid as if the corporation had had its habidtat within the State; that is, entitled to the same faith and credit in Indiana as in Ohio, under the constitution and laws of the United States.

We limit our decision to the case of a corporation acting in a State foreign to its creation, under a law of that State which recognized its existence, for the purposes of making contracts there and being sued on them, through notice to its contracting agents. The case of natural persons, and of other foreign corporations, is attended with other considerations, which might or might not distinguish it; upon this we give no opinion.

This decision renders it unnecessary to consider the questions arising under the counts on the policy.

It was objected that the judgment recovered in the commercial court was against 'the president, directors, and company of the Lafayette Insurance Company,' while this action is against the 'Lafayette Insurance Company;' but the declaration describes the judgment correctly, and then avers that the judgment was recovered against the defendants by that other name. We must assume that this fact was proved; and the only question open here is, whether, if a mistake be made in the name of a defendant, and he fails to plead it in abatement, the judgment binds him, though called by a wrong name. Of this, we have no doubt. Evidence that it was an erroneous name of the same person must, therefore, be admissible; otherwise, a mistake in the defendant's name, instead of being available only by a plea in abatement, would render a judgment wholly inoperative.

In the case of the Medway Cotton Manufactory v. Adams, 10 Mass. 360, the plaintiffs, a corporation, leclared on a promissory note made to Richardson, Metcalf, and Co., and averred that the maker promised the corporation by that name. The defendant demurred to the declaration, and assigned, in argument, the same cause which has been relied on at the bar in this case-that it was not competent to prove by parol evidence that the promisee of the note was the corporation, the name not being the same. The court held otherwise, and overruled the demurrer.

A similar decision was made in an action of debt on bond by the supreme court of New York, in the case of New York African Society v. Varick et al. 13 Johns. 38. See, also, Inhabitants, &c. v. String, 5 Halst. 323; and the authorities cited in the cases in New York and Massachusetts.

The decision of the circuit court is affirmed.

Mr. Justice CAMPBELL dissented.


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Stanford v. Taylor

THIS case was brought up, by writ of error, from the circuit court of the United States for the district of Missouri.

The case is stated in the opinion of the court.

It was argued by Mr. Lawrence and Mr. Johnson, for the plaintiff in error, and by Mr. Williams, for the defendant.

Mr. Lawrence made the following points, namely:--

This survey was entirely erroneous, as plaintiff claims and offered to show, for reasons;

1. That the location was such that it did not include the possession as required by the commissioners' certificate.

2. It did not adjoin Robert in any way, but was put three arpens west of it.

3. It was made upon the grant to Mad. Papin, long before surveyed and patented to her representatives, and held by them.

4. It was in violation of the instructions of the surveyorgeneral.

This survey was, therefore, void in every respect that could affect the plaintiff's rights under the confirmation. A survey, if necessary at all, is not final or unalterable. If wrong, it may (most certainly should) be corrected by the courts.

Kittridge v. Landry, 2 Rob., Lou. 72; Latiolais v. Richard, 6 Mar. Lou. (N. S.) 213; Fay v. Chambers, 4 Lou. An. R. 481.

It may be conceded that a survey by a government officer, made in a case of a confirmation for land, of which there had been no possession, and which is undefined and floating, should possess something of the nature of conclusiveness. But where there has been possession, and that possession is shown, and the land confirmed is for a definite location 'conformable' to that possession, no act of survey ought to affect the rights of the confirmee. To say that it could, would be to place every man's titles at the mercy of an executive officer.

The act of surveying is merely ministerial in its character, and if performed in open violation of facts and law-as it was in this case-it goes for naught, and should be disregarded entirely.

The true effect and force of a survey is properly declared in the fourth instruction of circuit court of Missouri, in the case of West v. Cochran, when it is stated to be prim a facie evidence of its conformity to the confirmation. The strong reason why this should be its only effect is, that it is made the duty of government to survey the lands of a confirmee, and to so survey it that it shall agree with the decision of the board. The land surveyed should be the same as that possessed originally.

The survey is intended only as an official designation of the land confirmed, for the purpose of obtaining patent evidence of title. When it violates the description in the concession, and is at variance with the decision of the commissioners, it is no survey; and the courts should at once proceed to correct that which the executive department has done under mistake, and in violation of a right confirmed by law. This case differs from that of West v. Cochran, 17 How. 403.

In that case, it is shown by the record, that Brazeau (through whom the plaintiff claimed) had never been in possession of the ground claimed by him. Nor had he, or any assignee or representative of his, ever had proper registry of the claim; nor did any one come before the board of commissioners as a claimant under the act of 1807.

The proofs and offers of proofs by plaintiff made out a good prim a facie case in ejectment.

Defendant showed no title in himself, and plaintiff ought to have been allowed to show the erroneous character of the surveys produced by the defendant. 9 Pet. 171; 10 Ib. 326, 340; United States v. Levy, 13 Pet. 83; 15 Ib. 172; 16 Ib. 146, 228; 8 How. 295; 10 Ib. 541; 11 Ib. 115.

Mr. Justice CATRON delivered the opinion of the court.

title: Stanford v. Taylor


text: Talk:Stanford v. Taylor

title: Talk:Stanford v. Taylor


text:
Stanford v. Taylor/Opinion of the Court

The plaintiff, Standford, sued Taylor in ejectment, claiming title to the land in dispute under a concession from 'Don Francisco Cruzat, lieutenant-governor, dated in 1785, who decreed as follows:--

'In view of what is set forth in the present memorial, presented by Angela Chovin, widow of the deceased Miguel Bolica, of this town of St. Louis, under date of the sixth of May of the current year, I have granted to her, in proprietary title, for her, her heirs, and others who may represent her right, forty arpens front of land upon forty in depth, along the river called De los Padres, (Des P eres,) from the north to the south, which is bounded on the one side by the lands of Louis Robert, and on the other by the domain of the king,' &c.

This claim was confirmed in general terms to Jean F. Perry, as assignee, by the board of commissioners sitting at St. Louis, in 1811, for 1,600 arpens, 'situate in the district of St. Louis, on the River Des P eres,' and ordered to be surveyed 'conformably to the possession, by virtue of a concession, or order of survey, from Francis Cruzat, lieutenant-general.'

The plaintiff derives title under Perry.

The survey directed to be made by the board of commissioners was not executed till 1834, when the surveyor-general ordered the land to be located west of Louis Robert's tract, and on both sides of the River Des P eres. But the plaintiff insists that the land granted and confirmed adjoins Robert's tract on the east, and that the location is so plainly apparent on the face of the concession as not to require a survey; and, furthermore, he offered to show by proof that the possession of Perry, the confirmee, was part of a tract of land east of the tract of Louis Robert, of seven by forty arpens, and adjoining it; and, if located there, would include the premises in controversy. The court rejected the evidence offered, and permitted the defendant to give in evidence the official survey of the tract of 1,600 arpens; to overcome the effect of which, the plaintiff offered to prove that the official survey was improperly made west of Robert's tract, and not adjoining it; whereas it should have been made east of the same. This evidence was also rejected, when the court instructed the jury as follows: 'The parties agreeing that the official survey of confirmation, under which the plaintiff claims the land in dispute, does not include the premises sued for, the jury ought to find for the defendant.'

To the rejected of the parol evidence, and to the charge of the court, the plaintiff excepted.

The law is settled, that where there is a specific tract of land confirmed, according to ascertained boundaries, the confirmee takes a title on which he may sue in ejectment. The case of Bissell v. Penrose, 8 How. 317, lays down the true rule.

But where the claim has no certain limits, and the judgment of confirmation carries along with it the condition that the land shall be surveyed, and severed from the public domain and the lands of others, then it is not open to controversy, that the title attaches to no land; nor has a court of justice any authority in law to ascertain and establish its boundaries, this being reserved to the executive department. The case of West v. Cochran, 17 How. 403, need only be referred to as settling this point. And the question here is, whether the concession to Perry is indefinite and vague, and subject to be located at different places.

It is to be forty by forty arpens in extent; it is to lie along the River Des P eres, from the north to the south; and to be bounded on the one side by the lands of Louis Robert, and on the other by the domain of the king. On which side of Robert's land it is to, lie, we are not informed, further than that it is to lie along the river from north to south. The record shows, that if surveyed west of Robert's tract, the forty by forty arpens includes the River Des P eres; but, if surveyed east of Robert's land, it will not include the river. The uncertainty of outboundary in this instance is too manifest, in our opinion, to require discussion to show that a public survey is required to attach the concession to any land.

title: Stanford v. Taylor/Opinion of the Court


text: Talk:Stanford v. Taylor/Opinion of the Court


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Converse v. Burgess

THIS case was brought up, by writ of error, from the circuit court of the United States for the district of Massachusetts.

The facts of the case are stated in the opinion of the court. It is only necessary to add the protest and evidence offered as they were stated in the bill of exceptions, namely:--

'I this day pay to Philip Greely, jr., collector of this port, on behalf of Messrs. B. Burgess and Sons, the sum of sixteen hundred forty-three dollars and 48/100, more or less, claimed by him as due to the United States from them, on merchandise imported by them in the brig Eliza Burgess, under protest, with the intention of reclaiming the same or any part thereof, as may be found to have been illegally paid by them. Said sum is claimed by advance of value on the merchandise by the appraisers, thereby increasing the duties and assessing a penalty-all of which we protest against on the ground of fair valuation in the invoice, and that the goods were not fairly and faithfully examined by the appraisers.

N. B. GIBBS.'

The plaintiffs further offered to prove, under said protest, that the merchant appraisers did not examine or see any of the original packages of the merchandise in question, and only saw samples which had been taken on the 26th of April, 1850, from one in ten of the packages described in the invoice, and that such samples, so drawn and exposed to the air, would not afford a fair criterion by which to judge of the importation, and claimed the right to go behind the return of the said merchant appraisers, on the ground that they had not examined the sugars, as required by law, and to put it as a question of fact to the jury without alleging fraud.

The defendant objected to the admission of such evidence to go to the jury in the absence of fraud on the part of the appraisers, and claimed that their decision was in the nature of an award, and final under the statute, and not open under this protest. But this court ruled that the evidence was admissible, and that the plaintiffs might go to the jury on the facts, whether the examination made by the merchant appraisers was, in substance and effect, equivalent to an examination of one package in ten of the importation, and if it was not, that the appraisement was void. Whereupon the counsel for the defendant did then and there except to the said rulings of the court, and thereupon the jury returned a verdict for the plaintiffs, for $2,127.68.

The case was submitted, on printed arguments, by Mr. Cushing, (attorney-general,) for the plaintiff in error, and Mr. Andros, for the defendants.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Converse v. Burgess


text: Talk:Converse v. Burgess

title: Talk:Converse v. Burgess


text:
Converse v. Burgess/Opinion of the Court

The intestate of the plaintiff is charged in this judgment for an excess of duties collected by him in his capacity of collector of customs at the port of Boston, under color of a law of the United States.

The defendants in April, 1850, imported into Boston an invoice of sugars from the Island of Cuba, and made entry as in case of goods purchased, by the production of the invoice and an oath that it exhibited a just and faithful account of the actual cost and all charges thereon, &c. The public appraisers advanced the valuation of the merchandise contained in the invoice ten per cent. above the invoice price, and made their return to the collector accordingly, the 14th May, 1850. From this valuation the defendants appealed, and merchant appraisers were appointed to make a new appraisement. These returned their report the 4th June, to the effect that the sugars could not have been purchased at the time of exportation for less than the sum assessed by the appraisers, at the principal markets of Cuba.

Duties were levied according to this appraisement, and also an additional duty of 20 per cent. under the 8th section of the act of 30th July, 1846. These duties were paid 4th June, 1850, under a protest, by the defendants, with the declared 'intention of reclaiming the same or any part thereof as may be found to have been illegally paid by them;' and affirm as the ground of their protest the 'fair valuation in the invoice, and that the goods were not fairly and faithfully examined by the appraisers.'

Upon the trial of the cause the importers (defendants) offered to prove that the merchant appraisers did not examine nor see any of the original packages of the merchandise in question, but only saw samples which had been taken on the 26th April, 1850, from one in ten of the packages described in the invoice; and that such samples so drawn and exposed to the air would not afford a true criterion by which to judge of the importation; and claimed the right to go behind the return of the said merchant appraisers, on the ground that they had not examined the sugars as required by law, and to put that as a question of fact to the jury, without alleging fraud.

The collector (plaintiff's intestate) objected to this evidence, and claimed that the decision of the appraisers was in the nature of an award and final under the statute, and not open under this protest, in the absence of fraud, to review.

The circuit court admitted this evidence, and decided that the importers (defendants) might go to the jury on the facts, whether the examination made by the merchant appraisers was in substance and effect equivalent to an examination of one package in ten of the importation, and if it was not, that the appraisement was void.

A verdict and judgment were rendered in favor of the importers, and these decisions of the circuit court have been assigned for error in this court.

The right of an importer, who has paid money, under a valid protest, to a collector of the customs, for duties illegally assessed, to maintain an action for its return has been acknowledged by congress and in this court. 5 Stats. at Large, 727, c. 22; Greely v. Thompson, 10 How. 225. The only inquiries in such an action are, whether the duties have been legally charged, and does the protest conform to the act of congress above cited? The ascertainment of the value of imports, upon which the assessment of duties is made, is confided in the first instance to officers of the government, and, in the case of dissatisfaction of the importer with their assessment, to discreet and experienced merchants familiar with the character and value of the goods in question, whose decision is final, provided it is made in pursuance of law.

They are required by all reasonable ways or means in their power to ascertain, estimate, and appraise 'the true and actual market value and wholesale price of the import,' at the time and place or places specified in the statutes, 'any invoice or affidavit thereto to the contrary notwithstanding;' they are authorized 'to call before them and examine upon oath or affirmation any owner, importer, consignee, or other person, touching any matter or thing they may deem material in ascertaining the true market value or wholesale price of any merchandise imported, and to require the production, on oath or affirmation, of any letters, accounts, or invoices in his possession relating to the same.' It is the duty of the collector to designate on the invoice at least one package of every invoice, and one package at least of every ten packages of goods, wares, and merchandise, and a greater number, should he, or either of the appraised, and deem it necessary, to be opened, examined, and appraised, and shall order the package or packages so designated to the public stores for examination. 5 Stats. at Large, 563-565, §§ 16, 17, 21. The appraisers take an oath diligently and faithfully to examine and inspect such goods, wares, and merchandise as the collector may direct, and truly to report, to the best of their knowledge and belief, the true value thereof. 3 Stats. at Large, 735, § 16.

These acts of congress provide for the appointment, regulate the duties, and impose the limitations on the authority of the appraisers, and determine the conditions on which the validity of their assessment depends. All their powers are derived from these acts, and it is their duty to observe the restrictions, and to obey the directions they contain. In the present instance, there was a neglect of the positive mandate 'to open, examine, and appraise one package of every invoice, and one package, at least, of every ten packages of goods, wares, and merchandise;' and the jury have found, that the inquiry they made was not, in substance nor in effect, an equivalent for such an examination.

We are, therefore, of the opinion that the importer was not precluded by their return from disputing the sufficiency or accuracy of their assessment. But to enable the importer to do this, he must, before making payment of the duties, enter 'a protest,' in writing, signed by him, setting forth, 'distinctly and specifically, the grounds of objection' to the payment of the duties. In the present instance there was a protest, to which there is no objection, except that its statement was not sufficiently distinct and specific. The ground of objection stated in the protest is, 'that the goods were not fairly and faithfully examined by the appraisers.'

And the proof offered was, that the appraisers did not examine nor see any of the original packages of the merchandise, and only saw samples which had been taken several weeks before, and which would not afford a true critertion by which to judge of the importation.

This statute was designed for practical use by men engaged in active commercial pursuits, and was intended to superinduce a prompt and amicable settlement of differences between the government and the importer. The officers of the government on the one part, and the importer or his agent on the other, are brought into communication and intercourse by the act of entry of the import, and opportunities for explanation easily occur for every difference that may arise. We are not, therefore, disposed to exact any nice precision, nor to apply any strict rule of construction upon the notices required under this statute. It is sufficient if the importer indicates distinctly and definitely the source of his complaint, and his design to make it the foundation for a claim against the government.

In the present instance, he asserts that the goods were not fairly and faithfully examined by the appraisers. This, we think, was sufficient, without disclosing the grounds upon which he contended that the appraisement was unfair or unfaithful.

In Jones v. Bird, 5 B. & A. 837, which arose under a local act of parliament relating to the commissioners of sewers for Westminster, which provides that no plaintiff should recover in any action for any thing done under certain acts of parliament, unless notice was given to the defendants, specifying the cause of action, Chief Justice Abbott said: 'I think the notice sufficient, and that it ought not to be construed with great strictness, its object being merely to inform the defendant substantially of the ground of the complaint, but not of the mode or manner in which the injury has been sustained.' And Justice Bayley said: 'A notice of this sort does not require the same precision as a declaration. It is quite sufficient if it calls the attention of the defendants to the general nature of the injury, so that they may go to the premises and see what the ground of complaint is.'

Under the act of 24 George II. c. 44, which required a notice to justices of the peace which should contain, 'clearly and explicitly, the course of action which the party hath, or claimeth to have,' the court of exchequer held a notice sufficient, although it was in the form of a declaration, and comprised not only the specific complaint, but all the redundancy and general averments which the experience of pleaders has led them to introduce into that description of pleadings, 'for it could not have misled nor imposed any difficulty on the defendants, as to the tender of the amends they might have thought fit to make, and is, therefore, sufficient.' Gimbert v. Coyney, McClelland & Y. 469.

These authorities disclose a sound principle of interpretation in regard to such notices, and support the principle we have announced in respect to that under consideration.

Upon the whole case, we think there is no error in the record, and judgment is affirmed.

Mr. Chief Justice TANEY, Mr. Justice DANIEL, and Mr. Justice NELSON dissented.

Mr. Chief Justice TANEY.

I dissent from the opinion of the court, being of opinion that the grounds of objection are not 'distinctly and specifically' set forth in the protest, within the meaning of the act of congress, and that the protest did not apprise the collector of the particular objection taken at the trial, and which could easily have been removed by another appraisement if it had been brought to the notice of the collector in the protest.

Mr. Justice DANIEL and Mr. Justice NELSON concurred with the Chief Justice.


text: Talk:Converse v. Burgess/Opinion of the Court


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Stockton v. Ford (59 U.S. 418)

THIS was an appeal from the circuit court of the United States for the eastern district of Louisiana.

A full history of the transactions which led to the dispute, is given in the report of the case of Stockton v. Ford, 11 How. 232.

It was submitted, on printed arguments, by Mr. Stockton and Mr. Johnson, for appellant, and by Mr. Duncan, for appellee.

The arguments were so connected with the facts of the case, that it is impossible to give the points by themselves.

Mr. Justice NELSON delivered the opinion of the court.

title: Stockton v. Ford (59 U.S. 418)


text: Talk:Stockton v. Ford (59 U.S. 418)

title: Talk:Stockton v. Ford (59 U.S. 418)


text:
Stockton v. Ford (59 U.S. 418)/Opinion of the Court

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

The bill was filed by the plaintiff to charge the plantation and slaves of the defendant with a judicial mortgage, originally obtained by one Prior, against the firm of N. and E. Ford and Co. The plaintiff claims an interest in this mortgage, first, by purchase on execution against Prior; and second, by a trust created in the assignment of the same by Prior, under which the defendant derived title to it. The bill sets out the sale of the mortgage and purchase by the plaintiff, and also the assignment of the same by Prior to Jones, and by him to the defendant. The assignment to Jones provided for the payment first of the attorney's fees and all other costs out of the proceeds of the judgment, and the balance to be applied to the debts of Prior for which Jones was responsible, and the surplus, if any, to the assignor.

The plaintiff prayed that the defendant might be decreed to pay the attorney's fees and costs on obtaining the judicial mortgage, according to the condition of the assignment; and, also, any balance that might be found due after satisfying the debts for which Jones was responsible.

The defendant, amount other defences, set up a former suit in bar.

A previous bill had been filed by the plaintiff against the defendant, seeking to foreclose this judicial mortgage, in which the same title as in this case under the execution and sale against Prior was relied on. And among other defences to that suit, the defendant set up the assignment of the mortgage by Prior to Jones previous to the said sale on execution, and by Jones to the defendant.

This right of the plaintiff to the judicial mortgage under the sale on execution, and of the defendant under the assignments, were directly involved in that suit, and presented the principal questions in the case. The validity of the assignments over the claim of the plaintiff was maintained by the judgment of the court below, and which was affirmed on appeal to this court. 11 How. 232. This court, after a full examination of the pleadings and proof, say, 'that in any view, therefore, that can be properly taken of the case, the plaintiff has shown no right or interest in the judicial mortgage, which he seeks to enforce against the plantation and slaves in question. The whole interest is in the defendant.

The court also observed, 'that the assignment (to Jones) was made upon full consideration, without any concealment, or, for aught that appears, intent to hinder and delay creditors; and was well known to the plaintiff long before he became the purchaser at the sheriff's sale. It passed the legal interest in the judicial mortgage out of Prior, and vested it in Jones, as early as the 12th of March, 1840, and we are wholly unable to perceive any ground of equity in the plaintiff, or of those under whom he holds, for disturbing it through a judgment against the assignor, rendered nearly two years afterwards. The sheriff's sale, therefore, could not operate to pass any interest in it to the plaintiff.'

One of the questions now sought to be agitated again is precisely the same as this one in the previous suit; namely, the right of the plaintiff to the judicial mortgage under the execution and sale against Prior. The other is somewhat varied; namely, the equitable right or interest in the mortgage of the plaintiff, as the attorney of Prior, for the fees and costs provided for in the assignment to Jones. But this question was properly involved in the former case, and might have been there raised and determined. The neglect of the plaintiff to avail himself of it, even if it were tenable, furnishes no reason for another litigation. The right of the respective parties to the judicial mortgage was the main question in the former suit. That issue, of course, involved the whole or any partial interest in the mortgage. We are satisfied, therefore, that the former suit constitutes a complete bar to the present.

The court, in the former suit, also expressed the opinion that the plaintiff was not in a situation to maintain his claim of title to the mortgage under the execution and sale against Prior; as it appeared in that case that he was the attorney of Prior in the judicial mortgage, and stood in that relation to Jones at the time of the purchase, and, for aught that appears, had made the purchase without his knowledge or consent; and that, under such circumstances, the purchase would enure to the benefit of the client and those holding under him.

It is due to the plaintiff to say, that the evidence in this case, explanatory of the point in the former, shows that he did not stand in the relation of attorney to Jones at the time of the sale; or, at least, had no reason to suppose that he stood in that relation; and that no just ground for censure exists in the transaction against him-the explanatory evidence has fully removed it.

We think the decree below is right, and should be affirmed.


text: Talk:Stockton v. Ford (59 U.S. 418)/Opinion of the Court


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Pennsylvania v. Wheeling and Belmont Bridge Company (59 U.S. 421)

THIS case was one of original jurisdiction in this court, upon the equity side; and may be said to be a continuation of the suit between the same parties reported in 13 How. 518.

By turning to that case, the reader will perceive that at page 627, a day was given to the plaintiffs to move the court on the subject of the decree. It is now proposed to continue the narrative from that time.

The motion made by the complainant and the motion made by the defendants to dismiss the suit, need not be particularly stated.

In the summer of 1854, the bridge was blown down by a violent storm, and the company were preparing to rebuild it according to the original plan, when the next step in the history of the case was taken.

On the 26th day of June, 1854, in vacation of the supreme court, the State of Pennsylvania, by her attorney-general and her counsel, Edwin M. Stanton, pursuant to previous notice served on the Wheeling and Belmont Bridge Company, appeared before the Honorable R. C. Grier, one of the justices of the supreme court of the United States, at chambers, and moved for an injunction as prayed for in a supplemental bill then exhibited. The substance and object of the bill is stated in the subjoined order.

On hearing the bill and affidavits, the following order was made and injunction granted.

'In the Supreme Court of the United States.

THE STATE OF PENNSYLVANIA      }

v. }

THE WHEELING AND BELMONT BRIDGE COMPANY. }

In Equity.

Before the Honorable R. C. GRIER, one of the judges of the supreme court of the United States.

'Whereas, on the 26th day of June, 1854, at the United States court room in the city of Philadelphia, the State of Pennsylvania, by her attorney-general and counsel, exhibited before me, R. C. Grier, one of the justices of the supreme court of the United States, her bill of complaint in equity against the Wheeling and Belmont Bridge Company, setting forth, among other things, that the said Wheeling and Belmont Bridge Company is about to erect and construct a bridge over and across the eastern channel of the Ohio River at Wheeling, between Zane's Island and the main Virginia shore, at a less elevation than is prescribed by the decree of the supreme court of the United States heretofore rendered against said company on complaint of said State, whereby the navigation of the Ohio River by steamboats of the largest class will be obstructed, to the injury of the said State; and in the vacation of the supreme court the said complainant hath applied to me for an injunction as prayed for in said bill against the said Wheeling and Belmont Bridge Company, and its president, managers, officers, engineers, agents, contractors, and servants, to enjoin them from erecting and constructing a bridge at the place aforesaid at a less elevation than is prescribed by the decree aforesaid, and from doing any act or thing to obstruct the navigation of the Ohio River, as prayed in said bill:'And reasonable notice of said application having been given unto the said Wheeling and Belmont Bridge Company to appear before me, to resist said application, and the proofs and arguments of counsel being heard, it is considered and adjudged that an injunction, as prayed for in the said bill, be, and the same is hereby, allowed. And it is ordered that the writ of injunction of the United States of America be forthwith issued by the clerk of the supreme court of the United States, under the seal of the said court, against the said Wheeling and Belmont Bridge Company, its president, managers, officers, engineers, agents, contractors, and servants, and all persons acting by their instigation, authority, or procurement, or otherwise, commanding and requiring them, and every of them, under the penalty of the law, that they do forthwith and absolutely desist and abstain from erecting and constructing, or causing to be erected or constructed, any bridge, structure, or device, in, over, or across the eastern channel of the Ohio River, at Wheeling, between Zane's Island and the main Virginia shore, at a less elevation than is prescribed by the decree aforesaid of the supreme court of the United States against said bridge company, entered at the adjourned term in May, 1852, and from stretching, suspending, or placing or causing to be stretched, suspended, or placed, any iron cables, ropes, wires, or chains, or any timber, structure, material, or thing whatsoever, in over, or across the said channel, at a less elevation than is prescribed by the decree aforesaid, and from keeping and maintaining any cable, rope, wire, chain, timber, or thing whatsoever, suspended in, over, or across the said channel, at a less elevation than is prescribed by the decree aforesaid, and from doing, or causing to be done, any act or thing to obstruct the free navigation of said channel of the Ohio River.'

'It is ordered that the marshal of the District of Columbia do forthwith serve said writ.'

And the clerk of the supreme court of the United States is directed to file the bill of complainant on which the aforesaid application and allowance are made, and enter this order and issue the writ of injunction above allowed; and also, that he issue the writ of subpoena in chancery, to be served by said marshal, requiring said Wheeling and Belmont Bridge Company to appear, plead, answer, or demur to said bill within ninety days from the service of said writ.

Given under my hand, at Philadelphia, this 26th day of June, 1854.

R. C. GRIER, ''Associate Justice Sup. Court U.S.''


text: Talk:Pennsylvania v. Wheeling and Belmont Bridge Company (59 U.S. 421)