text:
Randall v. Kreiger/Opinion of the Court

'I am of opinion that the case falls within the curative or remedial provisions of the act of 1857, and that this act, having been passed before the right to dower became consummated by the death of the husband, is a valid exercise of legislative power.

'Until the death of the husband the right to dower is inchoate and contingent. It becomes consummate only upon that event. In my opinion, the better view is that while the right remains inchoate it is as respects the wife under the absolute control of the legislature, which may, by general enactments, change, abridge, or even destroy it, as its judgment may dictate. 'So,' says Wright, C. J., in Lucas v. Sawyer, just cited, 'the legislature may declare what acts of the wife shall amount to a relinquishment of her right of dower, or that her deed shall be effectual to bar the same.' Again he says: 'In measuring her rights we look to the law in force at the time of the husband's death, for it is this event which ripens or makes consummate the prior right, which, so long as it rested upon the marriage and seizure, was inchoate only. If there was no law in force at that time giving her the right, then it is extinguished. She cannot take under a law repealed prior to that time; and taking a law then existing, she must take it with its restrictions and limitations.'

'It was competent, therefore, for the legislature to say as respects all inchoate rights of dower, as it did say by the act of 1857, that deeds executed under a joint power of attorney from the husband and wife 'shall be binding;' and if binding, the claim of the wife here to dower is barred, for she joined in the power of attorney under which the deed was made.

'Of the constitutionality of the enactment there remains no question after the repeated decisions of the Supreme Court of the United States.'

Judgment being entered on this view, the widow brought the case here on appeal.

We will address ourselves to the point taken by the court below, that point being conclusive of the case if it is well taken:

1. The authorities all concur in asserting the doctrine that the statutory formalities of the execution and acknowledgment of a deed by a married woman, affecting her real estate, are part of the execution of the deed, and not mere matters of proof or evidence of such execution; and no court has gone farther in sustaining this doctrine than has this court. Drury v. Foster applies the rule rigidly in a case so hard, that if the rule had been capable of relaxation it would have been there relaxed. As to the wife the instrument signed by her vested no power whatever in the so-called attorney. It was under that decision absolutely without effect for any purpose. It was not her act or deed. It was as to her no deed, no letter of attorney. The law is the same under a leading decision in Minnesota.

Where, indeed, there has been a defective conveyance or grant, the legislature may cure the defect, if the defect relates merely to the evidence, or proof of the conveyance. The legislature may also make a defective conveyance good between the parties to it, provided such defective conveyance amounts to a contract between the parties which a court of equity would enforce. But if the defective instrument, as here, under the authorities cited, is void; if it is neither a conveyance nor a contract to convey; if it grant or convey nothing, either in law or in equity, the legislature cannot make it valid and operative by any retrospective and curative act.

The rule relative to retrospective acts made to cure defective conveyances is thus properly stated in Chestnut v. Shane's Lessee:

'The act operates only upon that class of deeds where enough had been done to show that a court of chancery ought in each case to render a decree for a conveyance, assuming that the certificate was not such as the law required; and that when a title in equity was such that a court of chancery ought to interfere and decree a good legal title, it was within the power of the legislature to confirm the deed without subjecting an indefinite number to the useless expense of unnecessary litigation.'

That is to say, it is competent for the legislature, by a retrospective act, to turn a mere equitable title into a good legal title.

But, a power of attorney, uncoupled with any interest in the attorney, is not a contract between the parties thereto. There is no such thing as a letter of attorney (uncoupled with any interest) which is good in equity but bad at law. There can be no such thing as an instrument which, though not in itself amounting to a letter of attorney, would be a contract for such letter, in the absence of any interest of the grantee therein. No retrospective and curative legislation, therefore, can, in the nature of things, be applicable to naked powers of attorney except such as relate to the proofs or evidence of their execution.

No court of equity will interfere to compel a married woman to ratify a void letter of attorney, nor to compel her to execute or complete a conveyance attempted to be made under a void letter of attorney. No court of equity would compel the plaintiff in this cause to recognize as her deed an instrument which she never executed. A court of equity would refuse to act for no reason, however, but that the estate equitable as well as legal still belongs to the woman; that she has never conveyed any thing; that the land is still her property wholly unaffected, even in conscience, by what she has done.

If this is the ground on which a court of equity acts, what power can there be in the legislature to act in an opposite way? The question involved is not one of defective execution or of the sufficiency of the proofs of execution, but of the capacity to the party to execute at all. How then can the legislature declare that acts which have been done by married women, when they had no capacity to do them, shall be valid acts?

We are aware that it has been held in some of the States, that curative legislation may be applied to defective deeds executed by married women affecting their own separate real estate. But in all these cases it will be found that statutes exist enabling a married woman to charge, convey, and make contracts affecting her separate real estate.

Hence courts of equity would compel her to complete and make good her defective conveyances, on the ground that these deeds, though bad as conveyances, were good as contracts which she was by law capable of making. If this would be the position she would occupy in a court of equity relative to her defective deeds, no doubt the legislature could to the same extent apply the remedy by retrospective and curative legislation.

But we do not see that a married woman could possibly stand in this position respecting her dower.

She cannot convey or assign her inchoate right of dower, though she can, by performing a certain act specified by statute, bar it. That is to say, by the performance of the specified act she is thereafter estopped from asserting her dower.

Now, it is not perceived how the legislature can convert a past act which, when it was done, was not a matter of estoppel at all, into an estoppel.

Moreover, these subsequent curative acts cannot be made to affect this letter of attorney so far as the plaintiff is concerned, upon the assumption that they merely carry into effect her intentions. She was at the time, and continued to be until 1857, incapable of barring her dower by power of attorney. She could not, therefore, in reason, be held as intending to do what she was absolutely without the capacity to do.

'Until the death of the husband the right to dower is inchoate, and contingent. It becomes consummate only upon that event. In my opinion the better view is that while the right remains inchoate, it is, as respects the wife, under the absolute control of the legislature, which may, by general enactment, change, abridge, or even destroy it, as its judgment may dictate.'

Concede that this is a correct statement of the law. But is the act of the 24th February, 1857, a 'general enactment,' changing, abridging, or destroying the inchoate right of dower of married women? It does not purport to be such an act. And it does not have any effect of such an act even under the construction giving it by the learned judge below. It is an act which, at best, selects out of all the married women certain individuals, to wit, those who may have signed powers of attorney jointly with their husbands under which deeds of conveyance may have been made, and legislates in regard to these individuals by taking away or 'destroying' their inchoate right of dower.

Such legislation is unconstitutional. The legislature cannot select from married women particular individuals, nor even a particular class of married women, and declare that such particular individuals, or particular class, shall have no dower in the lands of their husbands, while married women generally do have such dower.

The plaintiff's right of dower in these lands was, then, not taken away or 'destroyed' by the act of the 24th February, 1857.

3. But we do not assent to the doctrine that while the right of dower of married women remains inchoate it is under the absolute control of the legislature.

On the contrary, we think that the better opinion and reason are that the concurrence of marriage and seisin vests in the wife such a right in the lands of her husband as cannot be impaired by subsequent legislation.

It is laid down in Lawrence v. Miller, and we think upon abundant reason and authority, that the law of dower which existed at the time of the marriage and seisin of the husband, is the law of the contract which the husband and wife entered into by their marriage.

The ground on which the case is rested by the court below is a sound one. This is settled by numerous authorities, and is the especial law for this court, in one of whose decisions, Watson v. Mercer, it is said in terms:

'The decided weight of authority is in favor of the doctrine that the right to dower may at any time before the husband's death, be enlarged, abridged, or entirely taken away.'

But the case need not be rested solely on that ground. There are other grounds independent of it, and like it conclusive.

1. The deed having been one with warranty, and the appellant being the sole legatee and devisee under the will of her husband, and having claimed under it, she cannot in equity be allowed to maintain what is in effect a suit against the estate of her husband, since if she recover her dower his warranty is thereby broken, and his estate liable on the covenants in the husband's deed.

The only effect of a recovery by the appellant in this suit would be to subject the respondent to the burden of instituting a suit in another State to compel the appellant to restore the value of what she might obtain herein, which would result in injustice and circuity of action.

2. The appellant being provided for in her husband's will, and having accepted the provisions thereof by receiving $50,000 thereunder, has elected to take the provisions so made in preference to dower.

3. The appellant being a non-resident could not have dower in land of which her husband did not die seized.

4. The statutes in force in Minnesota in 1849, the time when the letter of attorney in question was executed, removed all disability from a feme covert in relation to releasing her dower. She was rendered competent alone, without joining her husband, to release her dower 'in like manner as if she were sole.'

[This point the learned counsel argued on citations of statutes governing Wisconsin Territory, and which he sought to show had been adopted in Minnesota.]

Mr. Justice SWAYNE delivered the opinion of the court.

There is no controversy between the parties as to the facts.

When the power of attorney was given there was no law of Minnesota authorizing such an instrument to be executed by husband or wife, or the attorney to convey under it.

The validity of the deed as respects Randall, the husband, is not questioned, but its efficacy as to the widow, the appellant in this case, is denied. Her claim to dower is resisted upon several grounds, and among them that the defect in the deed was remedied by the curative act of 1857.

We have found it necessary to consider only the point just stated.

It is not objected that the act of 1857, as regards its application to the present case, is in conflict with the constitution of the State. We have carefully examined that instrument and have found nothing bearing upon the subject.

Nor was the act forbidden by the Constitution of the United States.

There is nothing in that instrument which prohibits the legislature of a State or Territory from exercising judicial functions, nor from passing an act which divests rights vested by law, provided its effect be not to impair the obligation of a contract. Contracts are not impaired but confirmed by curative statutes.

Marriage is an institution founded upon mutual consent. That consent is a contract, but it is one sui generis. Its peculiarities are very marked. It supersedes all other contracts between the parties, and with certain exceptions it is inconsistent with the power to make any new ones. It may be entered into by persons under the age of lawful majority. It can be neither cancelled nor altered at the will of the parties upon any new consideration. The public will and policy controls their will. An entire failure of the power to fulfil by one of the parties, as in cases of permanent insanity, does not release the other from the pre-existing obligation. In view of the law it is still as binding as if the parties were as they were when the marriage was entered into. Perhaps the only element of a contract, in the ordinary acceptation of the term, that exists is that the consent of the parties is necessary to create the relation. It is the most important transaction of life. The happiness of those who assume its ties usually depends upon it more than upon anything else. An eminent writer has said it is the basis of the entire fabric of all civilized society.

By the common law, where there was no ante-nuptial contract, certain incidents belonged to the relation.

Among them were the estate of tenant by the courtesy on the part of the husband if issue was born alive and he survived the wife, and on her part dower if she survived the husband. Dower by the common law was of three kinds: Ad ostium ecclesiae, Ex assensu patris, and that which in the absence of the others the law prescribed. The two former were founded in contract. The latter was the creature of the law. Dower Ad ostium ecclesiae and Ex assensu patris were abolished in England by a statute of the 3d and 4th William IV, ch. 105. The dower given by law is the only kind which has since existed in England, and it is believed to the the only kind which ever obtained in this country.

During the life of the husband the right is a mere expectancy or possibility. In that condition of things, the lawmaking power may deal with it as may be deemed proper. It is not a natural right. It is wholly given by law, and the power that gave it may increase, diminish, or otherwise alter it, or wholly take it away. It is upon the same footing with the expectancy of heirs, apparent or presumptive, before the death of the ancestor. Until that event occurs the law of descent and distribution may be moulded according to the will of the legislature.

Laws upon those subjects in such cases taken effect at once, in all respects as if they had preceded the birth of such persons then living. Upon the death of the husband and the ancestor the rights of the widow and the heirs become fixed and vested. Thereafter their titles respectively rest upon the same foundation, and are protected by the same sanctions as other rights of property.

The power of a legislature under the circumstances of this case to pass laws giving validity to past deeds which were before ineffectual is well settled.

In Watson v. Mercer, the title to the premises in controversy was originally in Margaret Mercer, the wife of James Mercer. For the purpose of transferring the title to her husband, they conveyed to a third person, who immediately conveyed to James Mercer. The deed of Mercer and wife bore date of the 30th of May, 1785. It was fatally defective as to the wife in not having been acknowledged by her in conformity with the provision of the statute of Pennsylvania of 1770, touching the conveyance of real estate by femes covert. She died without issue. James Mercer died leaving children by a former marriage. After the death of both parties, her heirs sued his heirs in ejectment for the premises and recovered. The Supreme Court of the State affirmed the judgment. In 1826 the legislature passed an act which cured the defective acknowledgment of Mary Mercer, and gave the same validity to the deed as if it had been well executed originally on her part. The heirs of James Mercer thereupon sued her heirs and recovered back the same premises. This judgment was also affirmed by the Supreme Court of the State, and the judgment of affirmance was affirmed by this court. This case is conclusive of the one before us.

To the objection that such laws violate vested rights of property it has been forcibly answered that there can be no vested right to do wrong. Claims contrary to justice and equity cannot be regarded as of that character. Consent to remedy the wrong is to be presumed. The only right taken away is the right dishonestly to repudiate an honest contract or conveyance to the injury of the other party. Even where no remedy could be had in the courts the vested right is usually unattended with the slightest equity.

There is nothing in the record persuasive to any relaxation in favor of the appellant of the legal principles which, as we have shown, apply with fatal effect to her case. The curative act of 1857 has a strong natural equity at its root. It did for her what she attempted to do, intended to do, and doubtless believed she had done, and for doing which her husband was fully paid.

The purchase-money for the lot became a part of his estate, and the entire estate was given to her at his death. Not satisfied with this she seeks to fasten her dower upon the property in question.

The act accomplished what a court of equity, if called upon, would have decreed promptly as to the husband, and would have failed to decree as to the wife only from the want of power. The unbending rule of law as to femes covert in such cases would have prevented it. The legislature thus did what right and justice demanded, and the act strongly commends itself to the conscience and approbation of the judicial mind.

DECREE AFFIRMED.

title: Randall v. Kreiger/Opinion of the Court


text: Talk:Randall v. Kreiger/Opinion of the Court

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


text:
Stickney v. Wilt

APPEAL from the Circuit Court for the Northern District of Ohio; the case being thus:

By the Bankrupt Act it is thus in effect enacted:

'SECTION 1. That the several District Courts be. . . courts of bankruptcy, and shall have original jurisdiction in their respective districts in all matters and proceedings in bankruptcy. . .. And the jurisdiction shall extend to all cases and controversies arising between the bankrupt and any creditor who shall claim any debt or demand under the bankruptcy, to the collection of all the assets of the bankrupt; to the ascertainment and liquidation of the liens and other specific claims thereon; to the adjustment of the various priorities and conflicting interests of all parties; and to the marshalling and disposition of the different funds and assets, so as to secure the rights of all parties, and due distribution, &c.

'SECTION 2. That the several Circuit Courts. . . within and for the districts where the proceedings in bankruptcy shall be pending, shall have a general superintendence and jurisdiction of all cases and questions arising under this act; and except where special provision is otherwise made, may, upon bill, petition, or other proper process, of any party aggrieved, hear and determine the case [as] a court of equity.

'The powers and jurisdiction hereby granted may be exercised either by said court or by any justice thereof in term time or vacation.

title: Stickney v. Wilt


text: Talk:Stickney v. Wilt

title: Talk:Stickney v. Wilt


text:
Stickney v. Wilt/Opinion of the Court

'Said Circuit Courts shall also have concurrent jurisdiction with the District Courts of the same district of all suits at law or in equity which may be brought by the assignee in bankruptcy against any person claiming an adverse interest, or by such person against such assignee touching any property or rights of property of said bankrupt, transferable to or vested in such assignee.

'SECTION 8. That appeals may be taken from the District to the Circuit Courts in all cases in equity, and writs of error may be allowed to said Circuit Courts from said District Courts in cases at law, &c., when the debt or damages claimed amount to more than $500; and any supposed creditor whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim, may appeal from the decision of the District Court to the Circuit Court; but no appeal shall be allowed unless it is claimed and notice given, &c., within ten days after the entry of the decree or decision appealed from. No appeal shall be allowed unless the appellant shall give bond in manner now required by law.

'SECTION 9. That in cases arising under this act no appeal or writ of error shall be allowed in any case from the Circuit Court to the Supreme Court of the United States, unless the matter in dispute in such case shall exceed $2000.'

In this state of statutory law, one Vandeveer having been decreed a bankrupt, in the District Court for the Northern District of Ohio, a certain Stickney, his assignee, filed a petition against him, Huss, Wilt, Paine, Adams, and two others, to determine whether certain claims set up as liens upon the bankrupt's estate were liens.

The petition set forth the decree of bankruptcy against Vandeveer. It then alleged:

1st. That at the time thereof he owned a tract of land which he had bought from Mrs. Adams, and that she set up a vendor's lien upon it; which lien the assignee alleged had no existence.

2d. That another tract which he owned purported to be incumbered by a mortgage to Paine to secure a note of $4000, but that no debt was due to Paine, and that the mortgage had no legal validity as against him the assignee.

3d. That he had given a note and mortgage to one Huss for $4000, which note and mortgage were never delivered to Huss, but were recorded by Vandeveer, at about the time of their execution, without the solicitation or knowledge of Huss, and that they were void.

4th. That the petitioner had been advised that one Wilt also claimed some kind of lien upon the said lands, but how or by means of what mortgage or otherwise the petitioner was not advised, but denied that any such lien or liens were so held or existed in favor of any person or persons whomsoever.

The petition prayed—

'That the parties above named, and each of the them may be made parties defendant to this petition; that they and each of them be required to answer all and singular the charges and allegations aforesaid, and be also compelled to set forth and state in their respective answers hereto, each, the particulars and facts upon which any claim is made or based by such defendant or defendants; and that, on the final hearing hereof, all questions and rights of each and all the said parties may be ascertained and determined by this court, and that, by the order and judgment of this court, the petitioner be directed to sell the said lands and distribute the proceeds accordingly.

'And that the petitioner may have such other and further relief in the premises and may be further directed in his duties, as the nature of the case requires.'

The petition did not pray for subpoena or other process.

Mr. and Mrs. Adams, as also Paine, waived it, however, and appeared. Wilt also appeared and answered.

Referring to the note and mortgage mentioned in the bill as given to Huss, and admitting their execution and record, Wilt alleged in his answer, that he, Wilt, afterwards became surety for Vandeveer, for $3260, and that in consideration of such suretyship, Vandeveer delivered the said note and mortgage to him, and that he had paid over $2000 on account of such suretyship.

The assignee replied, denying that Vandeveer delivered the mortgage to Huss, and that Wilt had become surety, and denying payment by him, and all debt to him by Vanderveer, &c.

Upon the hearing of these issues, the District Court held, that the mortgage never took effect, and decreed accordingly in favor of the assignee in bankruptcy.

Wilt thereupon filed his petition in the Circuit Court of the district for a review and revision of this decree, under the first clause of the above-quoted section of the Bankrupt law, which gives to the Circuit Court a general superintendence and jurisdiction of all cases arising under the act. He set up the same case in the Circuit Court which he had made in the District Court, and prayed a reversal, &c.

Without answering this petition, the assignee filed a plea to the jurisdiction of the court.

Upon the petition and plea the cause was heard, the petition sustained, and relief decreed as prayed for; that is to say, the lien claimed by Wilt was decided to be a good one.

The assignee hereupon appealed to this court as if thereto authorized by the act of Congress, allowing appeals in cases of equity and maritime jurisdiction, which act enacts that from 'all final decrees rendered in any Circuit Court in any cases of equity or admiralty jurisdiction, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum or value of $2000, shall be allowed to the Supreme Court of the United States, and that upon such appeal a transcript of the libel, bill, answer, depositions, and all other proceedings, of what sort whatsoever, shall be transmitted to the said court.' The record in the case, as sent here, contained sufficient extracts from the record to understand the case, but did not comply literally with the act just quoted. This defect, however, was not alluded to at the bar.

1. The first and second sections of the Bankrupt Act seem to contemplate that as between the assignee, creditors, and others, questions may arise not falling strictly within the scope of an action at law or a 'case in equity.' For such cases they provide for a summary proceeding on application to the District Court, and in this class of cases the aggrieved party may have the case reviewed in the Circuit Court, 'upon bill, petition, or other proper process.'

That the instances where this review may be had are limited to this class is apparent, for this action can alone be had in cases not otherwise specially provided for; and 'all suits at law or in equity' are specially provided for by the third clause of section two.

Clearly, the subject-matter of the proceeding in this case was one of purely equitable jurisdiction. The case was a 'case in equity' such as is contemplated in section eight. An appeal to the Circuit Court from the decree of the District Court lay under section eight. But the decree of the District Court remaining unappealed from is conclusive. The decree of the Circuit Court must be reversed for want of jurisdiction in it to review the case otherwise than on appeal. The decree of the District Court will then stand; with a right to take an appeal under the eighth section, if the time of appeal has not passed.

The first question is as to the jurisdiction of the Circuit Court, but that is not, as the opposite counsel assume, the only question. There remains the question of the jurisdiction of this court to entertain the appeal, even if the Circuit Court had jurisdiction.

The argument made against the jurisdiction of the Circuit Court rests upon the assumption that this is a case in equity, and therefore that the proceeding is by bill in chancery.

But the proceeding was nothing more than an ancillary petition, in the ordinary form, for the purpose of obtaining an order for the sale of the bankrupt's estate. The adjustment of the liens is only incidental to the main object of the petition, and preliminary to making the order of sale. The petition is like the petition of an administrator for an order to sell the decedent's lands for the payment of debts. Such a proceeding always involves the power to adjust and determine liens before ordering a sale. In the adjustment and determination of these liens, frequently important and difficult questions, involving legal and equitable principles, arise. Yet such a proceeding is not a case in equity.

The petitioner, the assignee in bankruptcy, as well as the District Court, treated the matter as a summary proceeding and not as a case in equity. No writ of subpoena was asked for, nor did one issue; nor was objection made by the court or the parties that the proceeding should be by bill in chancery, and not summarily upon petition.

The District Court has exclusive original jurisdiction of a proceeding asking for the sale of a bankrupt's estate, and the adjustment of the liens upon it, and no jurisdiction can be acquired by the Circuit Court on appeal.

The jurisdiction of the Circuit Court in this class of cases is conferred by that part of section two which gives to that court a general superintendence and jurisdiction of all cases and questions arising under the act, and authorizes it to hear and determine the case as a court of equity, upon the bill, petition, or other process of the party aggrieved.

This construction is held in Morgan v. Thornhill, where the supervisory jurisdiction of the Circuit Court under section two extends to the decree of the District Court, adjudging the Bank of Louisiana a bankrupt, ordering a surrender of its property, and enjoining perpetually the State commissioners from the exercise of their functions under the laws of the State of Louisiana.

It is held again, in Hall v. Allen, in a case of conflicting interests and disputed priorities between the individual and partnership creditors of a bankrupt.

It is held again, in Mead v. Thompson, where this court decided that when a petition to the Circuit Court to re-examine a decree of the District Court in bankruptcy prays the court to review and reverse that decree, and 'to grant such further order and relief as may seem just,' the jurisdiction invoked must be regarded as the supervisory jurisdiction which is allowed to Circuit Courts acting as courts of equity, by the second section of the Bankrupt Act.

It is held yet again, in Marshall v. Knox, where it was decided that under section two of the Bankrupt Act the revisory jurisdiction of the Circuit Court extends to the orders of the District Court, made in proceedings commenced by the assignee of a bankrupt, to recover property from a sheriff, who held it under legal process.

The principle established by these adjudications gave to the Circuit Court, in the case at bar, jurisdiction under section two to review the order of the District Court, adjusting the liens upon and directing a sale of the bankrupt's estate.

The counsel on the other side suppose that the question of the jurisdiction of the Circuit Court in this case is within the rule of Smith v. Mason. In that case the question was whether an assignee in bankruptcy, who claimed a fund as the property of his bankrupt which was held and claimed absolutely by a third party, under a transfer made before the adjudication in bankruptcy, must proceed against such party summarily under section one of the Bankrupt Act, or by suit at law or in equity, under the third clause of section two.

The court held that inasmuch as the absolute title to the fund was the subject-matter of the controversy, the case was that of 'an assignee in bankruptcy against a person who made an adverse claim to property transferable to or vested in the assignee,' under the third clause of section two, of which the Circuit Court had concurrent jurisdiction with the District Court, and that the proceeding in such case must be as that clause expressly requires, a suit at law or in equity.

The case above mentioned, and others which may arise under the third clause of section two, are to be distinguished from proceedings under the first section, which, like the one at bar, are within the exclusive original jurisdiction of the District Court, and which invoke only the powers of that court in ordering the sale of a bankrupt's land and in ascertaining and adjusting the conflicting claims of lienholders.

2. There remains now another question, and that is as to the jurisdiction of this court, assuming that the Circuit Court had a right to exercise supervisory jurisdiction.

We deny this jurisdiction and assert that the appeal should be dismissed.

It will be conceded as of course that if the Circuit Court had no jurisdiction no appeal lies from its judgment.

But even if the Circuit Court had jurisdiction, under the second section of the Bankrupt Act, then on the authority of the cases already cited, no appeal lies to the Supreme Court.

Mr. Justice CLIFFORD, having stated the case, delivered the opinion of the court.

Two principal objections are taken to the proceedings, as tending to show that this court has no jurisdiction to hear and determine the case under the powers conferred by the Bankrupt Act:

1st. Because the original pleading in the District Court is a suit in equity, commenced under the third clause of the second section of the Bankrupt Act, which could only be removed into the Circuit Court by appeal, as provided in the eighth section of that act.

2d. Because an appeal will not lie from the Circuit Court to this court, from the decree of the Circuit Court rendered in a petition of review, filed under the supervisory jurisdiction conferred upon the Circuit Courts by the first clause of the second section of the said Bankrupt Act.

1. Concurrent jurisdiction with the Circuit Courts is conferred upon the District Courts of all suits at law or in equity, which may or shall be brought by the assignee in bankruptcy against any person claiming an adverse interest, or by such person against such assignee, touching any property or rights of property of such assignee, transferred to or vested in such assignee, by virtue of the fourteenth section of the act providing for such transfers.

Rights of property were claimed in these lands by the appellee, and the suit in this case was commenced in the District Court contesting that claim, which is plainly a subject-matter cognizable under that provision; nor is it any argument against that theory that the first pleading in the District Court is, in form, a petition, as suits at law and in equity, in many jurisdictions, are commenced in that form of pleading. Beyond all doubt the petition contains every requisite of a good bill in equity, whether the pleading is tested by the statement of the cause of action, or by the charging part of the bill, or by the prayer for relief, and if it be suggested that it contains no prayer for process, the answer to the objection is a plain one, to wit, that three of the parties respondent appeared and waived the issuing and service of process, and that the appellee voluntarily appeared and filed an answer.

Nor is it any valid objection to that view that the Circuit Court, under the supervisory clause of the second section, may, in certain cases, proceed by bill, petition, or other proper process, as the power conferred by that clause does not extend to any case or question 'otherwise provided for,' by any special provision, especially as it is clear that cases arising under the third clause of that section, where the debt or damages claimed amount to more than five hundred dollars, may be appealed from the District Court to the Circuit Court for the same district.

Special provision, therefore, is made for the removal of such a case into the Circuit Court, and inasmuch as the case is made the subject of such special provision, it follows, beyond peradventure, that it does not fall within the supervisory jurisdiction conferred upon the Circuit Courts by the said first clause of the second section.

2. Much discussion of the second question is unnecessary, as the justices of this court are unanimously of the opinion that the question is settled in the negative by the prior decisions of this court.

Even a slight examination of that case will be sufficient to convince any inquirer that the question under consideration was directly presented for decision in that case, and it is equally certain, in the judgment of the court, that it was expressly decided without any qualification whatever. Attempts have since been made to induce the court to give its sanction to certain alleged exceptions to the rule, but the court has in every such case refused to countenance any such theory.

Controversies, in order that they may be cognizable in the Circuit or District Court, under the third clause of the second section of that act, must have respect to some property or rights of property of the bankrupt transferable to, or vested in such assignee, and the suit, whether it be a suit at law or in equity, must be in the name of one of the two parties described in that clause and against the other, no matter whether they are citizens of the same State or not, as the jurisdiction is conferred by the Bankrupt Act and depends upon the conditions therein prescribed.

Final judgments and decrees in such cases rendered in the Circuit Court, if the matter in dispute exceeds the sum or value of two thousand dollars, may be removed into the Supreme Court for re-examination, as provided in the twenty-second section of the Judiciary Act.

Such judgments and decrees, however, in order that they may be re-examinable in this court, must be final judgments or decrees, rendered in term time, as contradistinguished from mere interlocutory judgments or decrees or orders which may be entered at chambers, or if entered in court are still subject to revision before the final disposition of the cause.

Prior to the passage of the Bankrupt Act the District Courts possessed no equity jurisdiction whatever, but it is undoubtedly true that those courts do now possess concurrent jurisdiction with the Circuit Courts in the cases specified in the third clause of the second section of that act, and that final decrees rendered by those courts in such cases, where the debt or damages claimed amount to more than five hundred dollars, may be removed by appeal into the Circuit Court for re-examination. Doubt upon that subject cannot be entertained, and it is equally certain that a final decree rendered in the Circuit Court in such a case, whether originally brought there, or removed there by appeal from the District Court, may be removed by appeal into this court for re-examination, provided the appeal is perfected as required in the acts of Congress allowing appeals in cases of equity and of admiralty and maritime jurisdiction. Nothing of the kind was done in this case, as appears by the record.

Sufficient has already been remarked to show that the proceeding to revise the decree of the District Court was instituted and prosecuted throughout under the first clause of the second section of the Bankrupt Act, which confers upon the Circuit Courts merely a supervisory power over the proceedings of the District Courts in bankruptcy, and which the Circuit Courts may exercise in term time or vacation, and the provision is that the jurisdiction shall extend to questions, as well as cases, arising under the Bankrupt Act, except where provision is otherwise made. Special provision is otherwise made for appeals in cases like the one before the court, and it necessarily follows that the case is not one falling within the power conferred upon the Circuit Courts by the first clause of the second section of that act.

Where both the Circuit Court and this court are without jurisdiction it is in general irregular to make any order or decree in the case, except to dismiss the suit, but that rule does not apply to a case where the Circuit Court renders a judgment or decree in favor of the party instituting the suit, but in such a case the court here will reverse the judgment or decree in the court below, and remand the cause with directions to dismiss the suit.

Unless the practice were as explained great injustice would be done in all cases where the judgment or decree is in favor of the plaintiff or petitioner, as he would obtain the full benefit of a judgment or decree rendered in his favor by a court which had no jurisdiction to hear and determine the controversy.

Want of jurisdiction to hear and determine the merits in such a case does not show that this court may not correct the erroneous judgment or decree of the Circuit Court, but if the Circuit Court is also without jurisdiction this court cannot direct a new trial or a new hearing, as it may do in a case where the want of jurisdiction in this court is occasioned by a mistrial in the court below, which has led to an erroneous removal of the cause from the Circuit Court into this court, as by appeal instead of a writ of error, or by a writ of error, when it should have been by appeal.

Cases wrongly brought up, it may be admitted, should, as a general rule, be dismissed by the appellate tribunal, but a necessary exception exists to that rule where the consequence of a decree of dismissal will be to give full effect to an irregular and erroneous decree of the subordinate court in a case where the decree is entered without jurisdiction, and in violation of any legal or constitutional right. Rules of practice are established to promote the ends of justice, and where it appears that a given rule will have the opposite effect, appellate courts are inclined to regard the case as one of an exceptional character. Such courts, where there is no defect in bringing up a cause, usually affirm or reverse the judgment or decree of the subordinate court, but cases occasionally arise in which the proceedings in the lower court are so irregular that a mere affirmance or reversal upon the merits would work very great injustice, and in such cases it is competent for the appellate court to reverse the judgment or decree in question and to remand the cause with such directions, if it be practicable, as will do justice to both parties. Instances of the kind are numerous in the decisions of this court, nor is there much difficulty in accomplishing the end in view in a case where the subordinate court has jurisdiction of the subject-matter, and the right to a new appeal or writ of error is not barred by lapse of time.

Difficulties of the kind frequently occur in cases of seizures, as the District Courts have often failed to distinguish between seizures on land and seizures on navigable waters, sometimes trying the latter as a common-law action, and sometimes trying the former as an instance cause. Mistakes of the kind have also been made in libels of information filed under the confiscation acts passed by Congress. Errors of the kind, when they have seasonably come to the knowledge of this court, have uniformly been corrected, as far as it is in the power of this court to afford a remedy. Serious embarrassment often arises in such cases where it appears that the subordinate court is also without jurisdiction, but that difficulty does not prevent this court from assuming jurisdiction, on appeal, for the purpose of reversing the judgment or decree rendered in such subordinate court, in order to vacate the same, when rendered or passed without authority of law.

Where the court below has no jurisdiction of the case in any form of proceeding, the regular course, if the judgment or decree is for the defendant or respondent, is to direct the cause to be dismissed, but if the judgment or decree is for the plaintiff or petitioner, as in this case, the court here will reverse the judgment or decree and remand the cause with proper directions, which in the case supposed must be to dismiss the writ, libel, or petition, as the subordinate court cannot properly hear and determine the matter in controversy.

Viewed in the light of these suggestions it is quite clear that the decree of the Circuit Court rendered under the petition of review, must be reversed, and inasmuch as the Circuit Court has no jurisdiction of the subject-matter in that form of proceeding, and that it is now too late to take an appeal from the District Court to the Circuit Court, the cause must be remanded with directions to dismiss the petition.

Unable to refer the appellee to any legal remedy as matter of right, under the present pleadings, it seems to be proper, in the judgment of the whole court, to suggest that it may be that the District Court will grant a review of the decree rendered in that court, if a proper application is presented for that purpose, which would lay the foundation, if it be granted, in case of an adverse decision upon the merits of the case, for a regular appeal to the Circuit Court.

DECREE REVERSED without costs, and the cause REMANDED with directions to dismiss the petition

FOR WANT OF JURISDICTION.

title: Stickney v. Wilt/Opinion of the Court


text: Talk:Stickney v. Wilt/Opinion of the Court


text: The Sea Gull (90 U.S. 165)

title: The Sea Gull (90 U.S. 165)


text: Talk:The Sea Gull (90 U.S. 165)

title: Talk:The Sea Gull (90 U.S. 165)


text:
The Sea Gull (90 U.S. 165)/Opinion of the Court

CROSS-APPEAL from the decree of the Circuit Court for the District of Maryland, dividing equally the damages arising from a collision at sea, between the schooner Sarah and the steamer Sea Gull, on the theory that each was equally in fault.

A statute of the United States-the act of 29th April, 1864 thus enacts:

'ARTICLE 16. Every steamship, in approaching another ship, so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse.

'ARTICLE 15. If two ships, one of which is a sailing-ship and the other a steamship, are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing-ship.'

These provisions did but embody in a statutory form, what was previously the well-settled law of the sea.

On the evening of January 21st, 1871, the steamer Sea Gull was sailing in the open sea from the north, between Baltimore and Charleston, for the south, in a course south by west half-west, and the schooner Sarah between the same ports, from the south for the north in a course northeast by east. The vessels were thus approaching on converging lines. The steamer's speed was about eight miles an hour, the schooner's seven, and the nearest land was thirty miles distant. There was a fresh breeze, west-southwest. Stars were visible overhead, and though it was somewhat hazy on the water the night was fairly to be called a clear one.

Both vessels had proper lights brightly burning in their proper places. The schooner had one lookout properly placed, and the steamer had one lookout also; the steamer's lookout being on the forecastle, and, as was testified, within a few feet of the steam. At about nine o'clock in the evening the lookout on the schooner described and reported a light ahead. The light proved to be the foremast-headlight of a steamer, about four miles distant, and one point on the port bow of the schooner. The red or portlight of the steamer, which was still on the schooner's port bow, soon now became visible. The schooner, according to the positive testimony of three witnesses on her, including the pilot and the captain, who was at his side giving orders-the captain giving repeated orders to this effect, and calling the helmsman's attention to a star by which he could steer if he could not by the compass-continued her course, when, according to the testimony of these same witnesses, the steamer not having previously changed her course at all, and the vessels being close by one another, the green or starboard light of the steamer came suddenly into view; showing, of course, that the helm of the steamer had been starboarded. The captain and master testified that not knowing on which side of her the steamer would attempt to pass, and deeming it prudent and their duty under the circumstances still to keep their course, so as not to baffle those in charge of the steamer in any effort which they might make, even at the last moment, to pass on either side, still kept the schooner steadily on her course, but that the steamer continued, with undiminished speed, to approach. The result was a collision in which the steamer ran so violently into the schooner as to cut three or four feet into her, and sink her almost immediately; those on board barely escaping with their lives.

The only oral or written evidence from witnesses on the schooner tending to show any other proceedings than these, was that of the captain himself, who testified that when the steamer was about to strike the schooner, and only forty or fifty yards off, he shouted out, 'Let go her gaff-topsail, and lower her peak;' but that the order was not executed, the collision having occurred immediately after it was given, and before time had elapsed to execute it.

However, three witnesses from the steamer-the captain, the second mate, and the helmsman-all swore the when the collision took place, the course of the schooner was southeast; a course which would have been produced by the execution of the captain's order to change the schooner's sails, and that as they saw her sails after the schooner was struck her sails were on the port side.

As respected what was done on board the steamer, it seemed from the testimony of witnesses from her that the schooner was not seen until about a quarter of an hour after the schooner had seen the steamer; that her sails were then seen by the lookout, though they could not be well distinguished from each other; that the captain, whose watch it was, was in his room, asleep; that the second mate belonged to the captain's watch, and was accustomed to be on deck only during the captain's command, when his own position was subordinate; and that on this occasion he had taken charge of the captain's watch; that the second mate saw the vessel on the starboard bow, about the same time the lookout did, and at once gave the order 'hard a starboard,' to the man at the wheel, helping him to heave it hard a starboard himself; that when the order to heave hard a starboard was given, no lights, either red or green, were seen, and that the schooner was then supposed to be half a mile off, if not more; that the steamer answering the wheel, her head fell off to port, three or four points, and the second mate then saw the schooner's red light plainly, and saw that she had ported her helm and changed her course, about half a point to the east, which brought her across the steamer's bow; that the moment this was seen, the wheel was put hard a port; that on the same moment the bell was rung, the engine was stopped, and the captain was in the act of ringing the bell to back the ship when the collision took place; a collision so seriously injuring the steamer that water came into her by the barrelful, and that it was only by incessant working of the steam pumps that the vessel was able to make port (which she sought at once to do), at all. How exactly the schooner was struck, and where, was a matter about which the testimony was not harmonious.

One witness (the second mate of the steamer) testified that the steamer struck the schooner on her port side, just forward of the main-chain, nearly at right angles, with a slight slant towards the bow of the schooner.

Other witnesses testified that the steamer struck with a slight slant towards the stern of the schooner.

It was more plainly proved that the steamer received her injury on the port side of her stem.

The District Court held both vessels liable.

In regard to the steamer, the court said that before the officer in command changed its course, he should have waited to see the lights of the schooner, and as the vessels were approaching at the rate of fifteen miles an hour, have stopped the steamer's engine; that starboarding was a false movement; one not corrected but made worse by the subsequent porting.

In regard to the schooner, while the court confessed to a good deal of difficulty, in view of the conflict of evidence, and in a certain want of particularity in it, as to exact times when things were stated to have been seen, in saying that the schooner too was to blame, yet relying upon the evidence of the three persons on the steamer, that when the collision took place the course of the schooner was southeast and her sails on the port side, and on the further testimony of the second mate of the steamer, that she struck the schooner on her port side just forward of the main chain nearly at right angles, with a slight slant towards the bow of the vessel, the court thought that the course of the schooner must have been changed before the collision. The court, therefore, held both vessels equally in fault, and made each equally responsible for the damages; expressing a hope, however, that the case might be reviewed by another tribunal.

The Circuit Court, on appeal, affirmed the decree of the District Court, and from the decree of affirmance the case was now here on appeals by both vessels.

Messrs. S. T. Wallis and J. H. Thomas, for the owners of the schooner:

1. The steamer was exclusively in fault. She had but one lookout. She was an ocean steamer and, as such, should have had two; and they ought to have been on the very bow of the boat, on the lower deck, looking ahead.

It was the captain's watch. He should have been on deck. He was asleep in his cabin. The second mate was on his watch, and took charge of it. The result shows that the mate was incompetent for the duty which, owing to the captain's neglect, was put upon him.

With inattentive and incompetent officers thus proved to have been in charge of the steamer, every presumption, in matters where the testimony conflicts or is obscure, is against her; and with this as a thing not to be denied the whole case is to be considered.

The steamer took no measures to discover the course of the schooner when she was seen, but immediately starboarded and a moment after ported her wheel. She did not stop her engines till the moment of collision.

2. The schooner was not in fault. Both of her lights were burning brightly. She saw the steamer's headlight five miles off. Gave immediate orders to the helmsman, and several times repeated them, to keep her steadily on her course. She did not change her course from the moment she saw the steamer up to the moment of collision. If the testimony leaves any room for doubt on this point, it shows, at all events, that she did not change until they were within thirty or forty feet of each other. A change at such a moment could not have contributed to the collision. If it did, she will not be held responsible for a mistake in a moment of well-founded alarm and danger, needlessly produced by the previous fault of the steamer.

The steamer alleges that the schooner changed her course. This court has heretofore said:

'This is the stereotyped excuse usually resorted to for the purpose of justifying a careless collision. It is always improbable, and generally false.'

An attempt was made to create the impression that some of the witnesses for the steamer saw the sails of the schooner on her port side before the collision. But in the face of the evidence, that the schooner was kept on her course, the strong probability is that none of them saw the direction of her sails until after the collision.

Even if her foresail, the one nearest the steamer and that most likely to be seen by her, was momentarily on the port side, it might be true consistently with the theory and testimony of the schooner. Going as they were, before the wind, the foresail would be occasionally becalmed by the mainsail. It was then liable to flap over to the port side.

The witnesses on the schooner swear positively that her course was not changed. They speak from knowledge. Any counter evidence from persons on the steamer is from inference only.

The District Court would have adopted this reasoning, and have concluded that the schooner did not change her course, but for what it considered a controlling fact leading to a contrary conclusion. He considered, of course, that if the schooner had not changed her course she would have been struck a slanting blow on the port side, with a slight slant towards the stern. There are witnesses who prove that such was the exact blow given, and confessedly the steamer's bow was injured on its port side, not on its starboard; a fact which tends to show that the sort of blow which the District Court supposes was not given, was the very one that was.

The vast advantages which vessels navigated by steam have over sailing-vessels, is their capacity to turn suddenly, and most of all to stop at once; and this, with all their tremendous power, and the effect of a collision with them, has led courts to hold, almost as an irrebuttable presumption, that when, on a clear night, in open sea, a collision takes place between a steamer and a sailing-vessel the fault must be with the steamer; or at least to require very plain proof that it was not.

The courts do but give effect to that provision, alike of a positive statute and of the common law of the sea, that 'if two ships, one of which is a sailing-ship, are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing-ship.'

In two cases where the sailing-vessels were held in any part responsible, the night was not clear and the schooners either had no light or insufficient ones.

Messrs. J. H. B. Latrobe and I. N. Steele, contra, for the steamer:

That the steamer changed its course after sighting the schooner is admitted. The steamer's course down the coast having been southwest-half-west, adding three and a half points to port, and then deducting half a point to starboard, her course at the time of the collision would be south and by west half west.

And this we assume as the fact.

But did not the schooner change her course also? And here the usual contradictory testimony begins.

The schooner's witnesses, one and all, swear that up to the moment of collision the schooner's course was not changed; and, if they are to be believed, the schooner's course at the moment of collision was northeast by east.

The same witnesses swear, however, that the steamer struck the schooner at right angles and penetrated some three or four feet.

Now, they cannot be right on both points. Had the schooner held her course, northeast by east, that of the steamer being southwest by west-half-west, the steamer would have struck her at an angle of thirty-nine degrees, about; when a penetration of the schooner, such as all the witnesses on both sides agree took place, was physically impossible.

It follows as a matter of course then, as decided by the District and Circuit Courts, that the schooner changed its course.

This puts the case on two indisputable facts; first, the position of the steamer at the time of the collision; and second, the square blow received by the schooner.

Nor is this all. That the captain of the schooner intended to change his course is proved by the command he gave to lessen his aftersail preparatory to jibing, 'Let go the gafftopsail-sheet; slack the peak down.'

Now, as these orders would not have been given had it not been intended to go to the eastward, and as the course of the vessel was to the southeast when struck, the inference is strong that the order must have been given in time for the change in position testified to by witnesses on the steamer.

It was partially on reasoning like the foregoing that the courts below came to the conclusion that the schooner changed her course. And inasmuch as this change of course seems to have proceeded from no apprehension on the part of the captain of the schooner-for he speaks of none-there was nothing to justify it. Had he kept his course there would have been no collision; or, at most, the comparatively harmless one attending a glancing blow at an angle of half a point.

Had there been no other testimony in the case but that which is here referred to, the decree would have been for the owners of the steamer.

There was other testimony, however; and this, in the court's opinion, involving the steamer, the loss was divided.

We contend, however, that the steamer was altogether blameless in the premises.

The gravamen of the charge against her is that the helm was put to starboard, and not the port, as it is contended it should have been when the schooner was seen approaching, and that subsequently it was ported.

But starboarding the helm when the schooner was seen over the steamer's starboard bow, was running away from the approaching vessel and consequently proper. To port the helm subsequently was equally proper, when it became apparent from seeing the red light that the approaching vessel had changed her course.

Much reliance is had by the other side on the fact that the captain was in the cabin when the collision became inevitable. If by any possibility the accident could have been attributable to his absence, no doubt the consequences should be visited upon the steamer. But if we show, as we do, that everything was done that was proper to be done in the case, irrespective of the captain, his absence becomes a matter of indifference.

Mr. Justice CLIFFORD delivered the opinion of the court.

Until within a recent period the sailing regulations founded in ancient usage, sometimes called sea laws, sanctioned by the decisions of the admiralty courts, furnished the principal rules of navigation in such emergencies, aided by the adjudications of the prize courts, whose practice conforms in some respects to the law of nations. Recently Congress has enacted regulations upon the subject, and those regulations are obligatory upon our commercial marine in all cases where they apply, but inasmuch as the act of Congress does not profess to regulate the whole subject of sailing-rules it cannot be understood as superseding the prior established usages of navigation which are not embraced in the sailing-rules contained in the Congressional enactment.

Signal lights of a prescribed character are required to be carried by steam-vessels when under way, and sailing-ships under way are required to carry similar lights, with the exception of the white masthead lights, which they shall never carry. Such a requirement, however, is of very little or no value unless the lights are properly displayed and kept burning brightly, nor is it then of any value as a precaution unless those in charge of the other vessel use the means to see the approaching lights before it is too late to adopt the proper measures to prevent a collision.

Lookouts are also required by the usages of navigation, but the object of the requirement will never be accomplished in case the lookout fails to perform the duty which the requirement contemplates. Nautical lookouts must be properly stationed, and should be vigilant in the performance of their duty, and if they are incompetent or inattentive, and the collision occurs in consequence of their neglect, the vessel to which the lookout is attached must be held responsible for the injury resulting to the other vessel.

Steamers approaching a sail-ship in such a direction as to involve risk of collision are required to keep out of the way of the sail-ship, but the sail-ship is required to keep her course unless the circumstances are such as to render a departure from the rule necessary in order to avoid immediate danger.

Vessels with sails being required to keep their course the duty of adopting the necessary measures of precaution to keep out of the way is devolved upon the steamer, subject only to the condition that the sail-ship shall keep her course and do no act to embarrass the steamer in her efforts to perform her duty. Doubtless the steamer may go to the right or left if she can keep out of the way, but if not, and the approach is such as to involve risk of collision, she is required to slacken her speed, or if necessary stop and reverse, and if she fails to perform her duty as required by the rules of navigation she is responsible for the consequences if the sail-ship is without fault, unless the steamer can show that the collision was the result of causes which could not be foreseen or prevented, or of inevitable accident.

In the case before us both vessels had proper signal lights and both had lookouts, but the better opinion is that the lookout of the steamer was not as vigilant as he should have been in the performance of his duty. Strong support to that view is derived from the fact that the lights of the steamer were seen by the lookout of the schooner when the vessels were three or four miles apart, but those in charge of the steamer saw nothing of the schooner until the two vessels were within a half-mile of each other, and then saw at first only the sails of the schooner and those indistinctly.

Where the emergency is great the order to the helmsman should undoubtedly be prompt, but under the circumstances of this case it was a rash act of the second mate to direct the man at the wheel to starboard the helm, as he did, before he had employed any available means to ascertain the course of the schooner. He admits that he had not seen the lights of the approaching vessel and the lookout admits the same thing. They both say that they saw the sails, but they admit that they could not distinguish one sail from another, and it may be that it was the shadow of the sails and not the sails themselves which was present to their sight at that moment.

Evidently the order was an injudicious one, which is sufficiently shown by the testimony of the officer who gave it, as he admits that in a short time he found it to be advisable to countermand the order and to direct the wheelsman to put the helm hard to port. Well-founded doubt cannot be entertained that if that order had been given in the first place the collision would never have taken place. Probably it was too late then, as the steamer had fallen off three or four points before the second order could be fully executed, and it appears that the collision occurred before the steame could be brought back under the second order to the course she was pursuing antecedent to the first change made in her course.

These repugnant orders manifestly put the steamer upon a zigzag course, that is, first to the left and then to the right, and afford plenary proof that the officer in charge of the deck was in great doubt what to do, in which event it was his plain duty to slacken his speed, or, if necessary, as it plainly was, to stop and reverse, but he did nothing of the kind in season to render any such precaution effectual.

Undoubtedly it was the privilege of the steamer to go to the right or left if in so doing she could, with reasonable certainty, keep out of the way; but if not, it became her imperative duty to slacken her speed and, if necessary, to stop and reverse.

Corresponding conclusions were reached by the district judge, except that he did not find that the lookout of the steamer failed to see the lights of the approaching schooner as soon as he might have done if he had performed his duty. Much reason exists to conclude that the first error of the officer in charge of the deck was occasioned by that omission of the lookout, and that the excitement induced when he discovered that his first order was an improper one had more or less influence in promoting the subsequent errors. Subject to that qualification the views expressed by the district judge in respect to the conduct of the officer in charge of the deck of the steamer appear to be correct.

Cases arise unquestionably in which the want of a lookout, or his failure to perform his duty, will not be imputed to a vessel as a culpable fault, as where it appears that the other vessel was seen by the officer in charge of the deck in season to adopt every needful precaution, and that the want of a lookout or his failure to perform his duty as such did not and could not have contributed to the disaster, but it is very doubtful, in view of the circumstances, whether the case before the court falls within the first condition, and it is quite clear that the evidence will not support the conclusion that the negligence of the lookout did not materially contribute to the subsequent mistakes and vacillating conduct of the officer in charge of the deck of the steamer.

Approaching, as the two vessels were, on converging lines, it would clearly seem that the lookout of the steamer ought to have seen the schooner much earlier, as the evidence is full to the point that her signal lights were burning brightly, and if he had, it is not doubted that the collision would have been avoided, as the officer in charge of the deck of the steamer would, in all probability, have acted with more deliberation, in which event it may well be supposed he would not have given the direction that the course of the steamer should be changed before he had ascertained the course of the approaching vessel.

Considering the proximity of the vessels it may be admitted that prompt action was required, but it is plain that it was bad seamanship to change the course of the steamer before it had been ascertained whether the effect of the change directed would be to diminish or increase the danger to be apprehended from the impending peril. They, the two vessels, were still a half a mile apart, and time enough remained to adopt the proper precautions to prevent a collision, nor is it any valid excuse for the error committed to say that the officer in command of the deck was ignorant of the course of the schooner when he gave the order to starboard the helm, as in that event he should have waited a moment for that information, or, if the peril was impending and the danger too immediate to justify any delay on the occasion, then he should have slackened his speed, or, if necessary, stopped and reversed, as required by the sixteenth sailing-rule.

Beyond all doubt the order to starboard, under the circumstances, was an error, and the evidence warrants the inference that the officer who gave it came to the same conclusion as soon as he saw the red light of the schooner, which he admits he did see in a very short time after he gave the erroneous order. Sufficient appears to satisfy the court that the order to starboard was given without due reflection, and that the attempt to correct the error by directing the wheelsman to port the helm was not given in season to prevent the disaster, as the steamer in the meantime had fallen off more than three points.

By the sailing-rules the steamer was bound to keep out of the way, and the whole evidence shows that she did not comply with that requirement, and the rule of decision in such case is that, prim a facie, the steamer is in fault; nor does the case rest merely upon that presumption, for several reasons: (1.) Because the evidence shows affirmatively that the order to starboard given by the officer in charge of the deck was an improper order. (2.) Because the lookout of the steamer was negligent in the performance of his duty. (3.) Because the steamer did not slacken her speed nor stop and reverse in season to accomplish the object contemplated by the enactment containing that requirement.

II. Attempt is made in argument to show that the schooner also was in fault, and that the case falls within the rule which requires that the damages shall be divided.

Support to that charge is attempted to be drawn from the assumed fact that the schooner changed her course in violation of the rule of navigation which requires the sail-ship to keep her course, as a correlative duty to that of the steamer whenever the latter is required to keep out of the way. Such undoubtedly is the general rule of navigation, but it is subject to the qualification that it does not apply in such a case when a departure from it is necessary to avoid immediate danger.

Two answers are made by the libellants to that defence, either of which if found to be true is sufficient to exonerate the schooner from the consequences of the accusation, if proved to be well founded: (1.) That the evidence invoked for the purpose does not establish the charge. (2.) That the schooner made no change in her course until the collision was inevitable, nor until it became indispensably necessary in order to avoid immediate danger caused by the fault of the steamer.

1. All must admit that the burden to establish the charge is upon the claimants. They examined witnesses belonging to the steamer to support the theory of the defence, but the remark is applicable to them all that their cross-examination showed that they had no actual knowledge upon the subject, that they inferred that the charge was true from the fact that the two vessels collided, and from the manner in which they came together.

On the other hand all the persons on the deck of the schooner were examined by the libellants, and they testify, with one accord, that the schooner did not change her course as alleged by the claimants. Two of those, to wit, the wheelsman and the master who stood by his side, must know what did take place in that regard, and unless they have wilfully stated what they know to be false their statements must be correct; nor can it be denied that they state in the most positive terms that the charge is untrue. They were on the deck of the schooner and had the opportunity to know everything which occurred around them, nor can they well be mistaken in respect to the matter in question, but the witnesses on the steamer only infer what transpired on the deck of the schooner, and of course their statements are in the nature of opinions, and are certainly entitled to much less credit than such as are founded in actual knowledge of what did take place.

Mere inference from the circumstances of the collision is not reliable, since it is fully proved that the steamer attempted in the first place to go to the left and then ported her helm and attempted to go to the right; nor is it correct to suppose that the angle of the steamer when she struck the port side of the schooner was towards the stem of the schooner, as the proof is quite satisfactory that it was towards the stern.

Some of the witnesses state that the steamer struck the schooner at right angles, but the better opinion is that it was with a slight angle in the opposite direction from that found by the district judge, if his opinion is correctly exhibited in the record. Strong confirmation of that view is derived from the conceded fact that it was the port side of the stem of the steamer that was injured by the concussion. She cut three or four feet into the schooner just forward of her main rigging, and being herself injured on the port side of her stem the inference is a reasonable one that she was heading somewhat towards the stern of the schooner.

2. Be that as it may, it still is insisted by the claimants that the schooner changed her course and violated the sailing-rule which forbids it, but the evidence is not sufficient to establish the charge nor to render it probable that anything of the kind occurred, unless perhaps at the moment before the collision, when the master, seeing that the peril was impending, took the wheel from the helmsman and gave the order 'let go her gaff-topsail sheet and lower the peak,' but the order was not obeyed, as there was no time to execute it before the steamer struck the schooner.

Rules of navigation continue to be applicable as long as the means and opportunity remain to avoid the danger, but they do not apply to a vessel required to keep her course after the wrongful approach of the opposite vessel is so near that the collision is inevitable. Steamers under the rule that they shall keep out of the way must of necessity determine for themselves and upon their own responsibility, independent of the sailing-vessel, whether it is safer to go to the right or left or to slacken their speed or stop and reverse, and in order that the steamer may not be deprived of the means of determining the matter wisely, and that she may not be defeated or baffled in the attempt to perform her duty in the emergency, it is required that the sailing-vessel shall keep her course and allow the steamer to pass either on the right or left, or to adopt such other measures of precaution as she may deem best suited to enable her to perform her duty and fulfil the requirement to keep out of the way.

These rules of navigation are of great importance, but they do not apply to the vessel required to keep her course after the wrongful approach of the steamer is so near that the collision is inevitable, nor will an error committed by the sail-vessel under such circumstances of peril, if she is otherwise without fault, impair the right of the sail-vessel to recover for the injuries occasioned by the collision, for the plain reason that those who produced the peril and put the sail-vessel in that situation are chargeable with the error and must answer for the consequences.

Subject to that exception the sail-vessel must keep her course, but the case before the court, if any change was made in the course of the schooner, falls within the exception, and it follows that the decree of the Circuit Court must be reversed, with costs, and the cause remanded with directions to enter a decree in favor of the libellants for the whole value of the schooner, her freight, and cargo.

DECREE REVERSED. REVERSED.


text: Talk:The Sea Gull (90 U.S. 165)/Opinion of the Court


text: The Corn-Planter Patent

title: The Corn-Planter Patent


text: Talk:The Corn-Planter Patent

title: Talk:The Corn-Planter Patent