text:
Hyde v. Stone/Opinion of the Court

The defendant in error instituted his suit in the Circuit Court, as the endorsee of a bill of exchange, payable in Boston, of which the plaintiffs in error were drawers, payees, and endorsers, and which bears date at New Orleans.

The defendants answered the petition, and averred that the plaintiff was a citizen of Louisiana, and the said bill of exchange a Louisiana contract, and governed by the law of that State. That the plaintiff resided in Louisiana when the defendants surrendered their property in insolvency in the third District Court of New Orleans, and to the proceedings therein the plaintiff became a party. That, subsequently thereto, the said plaintiff instituted a suit on the said bill of exchange in the fifth District Court of that city, and, on an exception filed by the defendants, informing that court of those facts, the same was sustained, and the said suit was transferred to the third District Court of New Orleans, and made part of the aforesaid insolvent proceedings therein; by which the right of plaintiff to have and maintain this action in the Circuit Court is barred, and the question has become res judicata.

With this exception to the jurisdiction of the court, the defendants filed a general denial of their indebtedness to the plaintiff. The cause was submitted to the Circuit Court upon an agreed statement, and judgment was rendered for the plaintiff without the intervention of a jury.

From that statement it appears that the bill was duly protested for non-payment; and that notary in Boston certifies, 'I sent notice of the non-payment to the drawers and first endorsers, requiring payment of them, by mail, to New Orleans, on the day of the protest.' That the plaintiff has always been a citizen of Massachusetts; that his family resided there, and he had a commercial establishment there; that he is a partner in a commercial establishment at New Orleans, and generally spent a portion of the winter months in that city, and then returned to Massachusetts; and that this bill was purchased in the city of New Orleans, on his own account. It further appears that the plaintiff, before the commencement of this suit, sued the defendant in the fifth District Court of New Orleans, on this bill; that the defendant appeared and answered that the fifth District Court had no jurisdiction, because the defendant had made a surrender of his property to his creditors in the third District Court of New Orleans, which surrender had been accepted, and all proceedings stayed against him; and that the plaintiff was put upon his schedule as a creditor; and he prayed that the suit of the plaintiff be transferred and cumulated with the insolvency proceedings in the third District Court in New Orleans; that thereupon the fifth District Court, before the commencement of the present suit, decreed that the exeception herein filed be maintained, and the costs paid out of the mass of the property surrendered. It further appears that the plaintiff performed no act to make himself a party to the proceedings in insolvency in the third District Court, and that no notice of those proceedings had ever been served on him; but that the bill of exchange described in his petition was enumerated among his debts, and the firm of H. L. Stone & Co., of New Orleans, which was supposed to be the holder of the bill, was placed on the schedule among the other creditors of the insolvents.

The question whether a foreign bill of exchange, sold by a merchant in New Orleans to a person who has a commercial house there, but whose domicil is at the place where the bill is payable, and where he resided when the proceedings in insolvency were instituted, is affected by them when he does not make himself a party to those proceedings, is not involved in this case. The defendant did not plead the pendency of those proceedings, or the decree of the third District Court, as a bar to the present suit, or afford any proper description of them to raise that question. The exception of the defendant is, that certain proceedings pending in the third District Court were successfully pleaded in the fifth District Court of New Orleans, as a cause for the removal of a suit commenced by the plaintiffs against the defendants in that court to the other, and that the decision of the fifth District Court upon that plea ought to preclude the plaintiff from maintaining this suit in the Circuit Court of the United States. But this court has repeatedly decided that the jurisdiction of the courts of the United States over controversies between citizens of different States cannot be impaired by the laws of the States, which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power. In many cases, State laws form a rule of decision for the courts of the United States, and the forms of proceeding in these courts have been assimilated to those of the States, either by legislative enactment or by their own rules. But the courts of the United States are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends. They cannot abdicate their authority or duty in any case in favor of another jurisdiction. (Suydam v. Broadnax, 14 Pet., 67; Union Bank v. Jolly, Adm'r, 18 How., 503.)

It follows, therefore, that the decision of the fifth District Court of New Orleans, transferring the suit, commenced by the plaintiff on his bill against the defendants, in that court, and directing it to be cumulated with the proceedings in bankruptcy which were pending in another court of the State, did not disable the plaintiff from commencing a suit in the Circuit Court, nor can it form a proper declinatory exception to its jurisdiction.

The plaintiffs in error object, that the evidence before the Circuit Court did not authorize the court to infer that they had notice of the dishonor of their bill. The notary states that he sent a notice to them, at New Orleans, on the day that the protest was made. In addition to this evidence, it is shown that the bill, after its maturity, was enumerated among the debts of the plaintiff in error, on the schedule that was returned to the third District Court; and that they successfully pleaded their return to the prosecution of a suit by the defendant in error in another court. A plaintiff may prove, by admissions of a defendant, that all the steps necessary to charge him as an endorser or drawer of a bill of exchange have been taken. Proof of a direct or conditional promise to pay after a bill becomes due, or of a partial payment, or of an offer of a composition, or of an acknowledgment of his liability to pay the bill, has been held to be competent evidence to go to a jury, of a regular notice of the dishonor of a bill, and to warrant a jury in presuming that a regular notice had been given. (Thornton v. Wynn, 12 Wheat., 183; Rogers v. Stevens, 2 T. R., 713; Patterson v. Beecher, 6 J. B. Moore, 319; Campbell v. Webster, 2 M. G. Sc., 253; Union Bank v. Grimshaw, 15 La., 321; 3 Mort. N. S., 318.) The effect of such evidence in the particular case must be determined by the jury, and their decision cannot be reviewed by an appellate court. In the present case, the matter of fact was submitted to the Circuit Court, and its determination on this subject cannot form the ground of an exception here.

Judgment affirmed.

title: Hyde v. Stone/Opinion of the Court


text: Talk:Hyde v. Stone/Opinion of the Court

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

title: Talk:Hyde v. Stone/Opinion of the Court


text:
Leitensdorfer v. Webb

THIS case was brought up, by writ of error, from the Supreme Court of the Territory of New Mexico.

The facts of the case are stated in the opinion of the court.

It was argued by Mr. Cushing and Mr. Gillet for the plaintiffs in error, and by Mr. Polk for the defendant.

The counsel upon both sides argued the case upon its merits; but as it went off upon a question of pleading, these arguments are omitted.

Mr. Justice DANIEL delivered the opinion of the court.

title: Leitensdorfer v. Webb


text: Talk:Leitensdorfer v. Webb

title: Talk:Leitensdorfer v. Webb


text:
Leitensdorfer v. Webb/Opinion of the Court

This case is brought before this court upon a writ of error to the Supreme Court of the Territory of New Mexico.

Upon the acquisition, in the year 1846, by the arms of the United States, of the Territory of New Mexico, the civil Government of this Territory having been overthrown, the officer, General Kearney, holding possession for the United States, in virtue of the power of conquest and occupancy, and in obedience to the duty of maintaining the security of the inhabitants in their persons and property, ordained, under the sanction and authority of the United States, a provisional or temporary Government for the acquired country. By this substitution of a new supremacy, although the former political relations of the inhabitants were dissolved, their private relations, their rights vested under the Government of their former allegiance, or those arising from contract or usage, remained in full force and unchanged, except so far as they were in their nature and character found to be in conflict with the Constitution and laws of the United States, or with any regulations which the conquering and occupying authority should ordian. Amongst the consequences which would be necessarily incident to the change of sovereignty, would be the appointment or control of the agents by whom and the modes in which the Government of the occupant should be administered-this result being indispensable, in order to secure those objects for which such a Government is usually established.

This is the principle of the law of nations, as expounded by the highest authorities. In the case of The Fama, in the 5th of Robinson's Rep., p. 106, Sir William Scott declares it to be 'the settled principle of the law of nations, that the inhabitants of a conquered territory change their allegiance, and their relation to their former sovereign is dissolved; but their relations to each other, and their rights of property not taken from them by the orders of the conqueror, remain undisturbed.' So, too, it is laid down by Vattel, book 3d, cap. 13, sec. 200, that 'the conqueror lays his hands on the possessions of the State, whilst private persons are permitted to retain theirs; they suffer but indirectly by the war, and to them the result is, that they only change masters.' In the case of the United States v. Perchiman, 7 Peters, pp. 86, 87, this court have said: 'It may be not unworthy of remark, that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign, and assume dominion over the country. The modern usage of nations, which has become law, would be violated, and that sense of justice and right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated and private rights annulled. The people change their allegiance; their relation to their sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed.' (Vide also the case of Mitchel v. The United States, 9th 2b., 711, and Kent's Com., vol. 1, p. 177.)

Accordingly we find that there was ordained by the provisional Government a judicial system, which created a superior or appellate court, constituted of three judges; and circuit courts, in which the laws were to be administered by the judges of the superior or appellate court, in the circuits to which they should be respectively assigned. By the same authority, the jurisdiction of the Circuit Courts to be held in the several counties was declared to embrace, 1st, all criminal cases that shall not be otherwise provided by law; and, 2d, exclusive original jurisdiction in all civil cases which shall not be cognizable before the prefects and alcaldes. (Vide Laws of New Mexico, Kearney's Code, p. 48.) Of the validity of these ordinances of the provisional Government there is made no question with respect to the period during which the territory was held by the United States as occupying conqueror, and it would seem to admit of no doubt that during the period of their valid existence and operation, these ordinances must have displaced and superseded every previous institution of the vanquished or deposed political power which was incompatible with them. But it has been contended, that whatever may have been the rights of the occupying conqueror as such, these were all terminated by the termination of the belligerent attitude of the parties, and that with the close of the contest every institution which had been overthrown or suspended would be revived and re-established. The fallacy of this pretension is exposed by the fact, that the territory never was relinquished by the conqueror, nor restored to its original condition or allegiance, but was retained by the occupant until possession was matured into absolute permanent dominion and sovereignty; and this, too, under the settled purpose of the United States never to relinquish the possession acquired by arms. We conclude, therefore, that the ordinances and institutions of the provisional Government would be revoked or modified by the United States alone, either by direct legislation on the part of Congress, or by that of the Territorial Government in the exercise of powers delegated by Congress. That no power whatever, incompatible with the Constitution or laws of the United States, or with the authority of the provisional Government, was retained by the Mexican Government, or was revived under that Government, from the period at which the possession passed to the authorities of the United States.

Among the laws ordained by the provisional Government of New Mexico is one conferring upon creditors the right of proceeding by attachment in certain cases against their debtors, and prescribing the instances in which, and the modes by which, this remedy may be prosecuted.

This law is contained in what is called the Kearney Code, at p. 39, and is found under the title Attachments. Upon its provisions, the case under consideration was instituted; and those provisions, so far as they are pertinent to the questions before us, will now be examined.

By section 1st, it is declared that creditors, whose demands amount to fifty dollars or more, may sue their debtors in the Circuit Court by attachment in the following cases, to wit:

'1st. When the debtor is not a resident of this Territory.

'2d. When the debtor has concealed himself or absconded, or absented himself from his usual place of abode in this Territory, so that the ordinary process of law cannot be passed upon him.

'3d. When the debtor is about to remove his property or effects out of this Territory, or has fraudulently concealed or disposed of his property or effects, so as to hinder, delay, or defraud his creditors.'

It is under the third clause only of this first section of the attachment law, that this case has been or could have been instituted; since, by a recurrence to the affidavit made by the plaintiff in the attachment, it will be found to state, that Leitensdorfer & Co. have fraudulently disposed of their property and effects. By the second section of this law it is declared, that a creditor, wishing to sue his debtor by attachment, shall file in the clerk's office of the Circuit Court a petition or other lawful statement, with an affidavit of his cause of action, and a bond, with a condition to the latter to prosecute his action with effect, and without delay, and to refund all sums of money that may be adjudged to the defendant, and to pay all damages that may accrue to any defendant or garnishee, by reason of the attachment, or any process or judgment thereon.

The third section of this same statute provides, that the affidavit made by the plaintiff shall state that the defendant is justly indebted to the plaintiff, after allowing all just discounts, in a sum to be stated in the affidavit, and on what account; and shall also state that the affiant has good reason to believe, and does believe, the existence of one or more of the causes which, according to the provision of the first section, will entitle the plaintiff to sue by attachment. (See collection of the Laws of New Mexico, comprising the Kearney Code, p. 39.)

With the requisites of the aforegoing provisions of the statute, it appears, by the record, that the plaintiff below, the defendant in error here, formally and regularly complied.

The sixteenth section of the statute enacts, that 'in all cases when property or effects shall be attached, the defendant may, at the court to which the writ is returnable, put in his answer without oath, denying the truth of any material fact contained in the affidavit; to which the plaintiff may reply. A trial of the truth of the affidavit shall be had at the same term; and on such trial, the plaintiff shall be held to prove the existence of the facts set forth in the affidavit, as the ground of the attachment; and if the issue shall be found for him, the cause shall proceed; but if it be found for the defendant, the cause shall be dismissed at the costs of the plaintiff.'

At the October term, 1849, of the Circuit Court of the Territory, established by the Kearney Code, the defendants in the attachment appeared and filed a demurrer to the petition, and at this point terminated the proceedings had in this cause in the court last mentioned. By subsequently tendering and joining in an issue in the District Court of the Territory, in bar of the plaintiff's right of recovery, the defendants must be considered as having waived the demurrer interposed by them in the Circuit Court of the provisional Government, and there appears not to have been a joinder in the demurrer, nor any order whatever taken with respect to it.

On the 9th day of September, 1850, was approved the act of Congress establishing the Territorial Government for the Territory of New Mexico. (Vide Stat. at Large, vol. 9, p. 446.) By this act, commonly distinguished as the Organic Law, the legislative and judicial powers of the Territorial Government are provided and defined, to have effect from the passage of that act. The former, (the legislative power,) vide sec. 7, it is declared, shall extend to all rightful subjects of legislation not inconsistent with the Constitution of the United States and the act of Congress above mentioned. The latter, (the judicial power,) vide sec. 10, shall be vested in a Supreme Court, in District Courts, and in justices of the peace. That the Supreme Court shall consist of a chief justice and two associate justices, any two of whom shall form a quorum; that the said Territory shall be divided into three judicial districts, and a District Court shall be held in each of said districts by one of the justices of the Supreme Court, at such time and place as shall be prescribed by law. And it is further declared, that the jurisdiction of the several courts, as therein provided for, both appellate and original, and that of the justices of the peace, shall be as limited by law.

On the 19th day of September, 1851, the District Court of the United States for the first judicial district, created by the act of Congress, being then in session, the plaintiff in the attachment moved the court for leave to file therein the papers and proceedings in that case, and that the same might be made a part of the records of the District Court; and it was thereupon ordered by the court, that the case be entered upon its docket. Objection was made by the defendants to the transfer of this case from the Circuit Court of the provisional Government, (vide Kearney Code,) to the District Court created by Congress, upon the ground that the Legislative Assembly had no power to authorize such a transfer. This objection was overruled by the District Court, and exception was taken to its decision.

Afterwards, viz: on the 25th of March, 1852, the defendants in the attachment so far submitted themselves to the jurisdiction of the District Court, as to plead to the averments in the petition and affidavit, and to pray judgment of the action, because they say that at the time of the institution of the suit, viz: on the 30th day of July, 1849, the defendants had not fraudulently disposed of their property, so as to hinder, delay, and defraud their creditors. And again, at the same term of the said District Court, the defendants, upon affidavits made by them of the insufficiency of the sureties in the bond filed by the plaintiff in the attachment, applied for and obtained from that court an order for further security, which security was, upon the said application and order, given by the plaintiff.

On the 1st day of October, 1852, this cause was, upon the petition and affidavit, the plea of the defendants, and the evidence produced by the parties, submitted to a jury, who found that the affidavit of the plaintiff was true; whereupon it was considered and ordered by the court that the cause should proceed, and that the defendants should plead to the merits of the plaintiff's demand; and the defendants having pleaded that they did not promise and undertake as the plaintiff had charged them, and upon this last issue the cause having been committed to a jury, they found for the plaintiff, and assessed his damages at ten thousand three hundred and thirty dollars and twenty-five cents. After the finding of the juries upon both the issues in this case, motions were made, first for a new trial, and secondly for an arrest of judgment, both of which motions were overruled. As these were motions submitted to the discretion of the court, and determined by it upon facts and circumstances not fully disclosed upon this record, it would be improper in this court, and in conflict with its settled rule of action, to overrule or even to canvass the decision of the court which overruled these motions.

In the objection which was taken to the power of the Legislative Assembly to transfer the cognizance of causes previously pending under the laws of the provisional Government to the courts created by the act of Congress establishing the Territory of New Mexico, we can perceive no force. It was, undoubtedly, within the competency of Congress either to define directly, by their own act, the jurisdiction of the courts created by them, or to delegate the authority requisite for that purpose to the Territorial Government; and by either proceeding, to permit or to deny the transfer of any legitimate power or jurisdiction previously exercised by the courts of the provisional Government, to the tribunals of the Government they were about to substitute for the Territory, in lieu of the temporary or provisional Government. This power we consider was, in fact, delegated by Congress to the Territorial Government by the seventh section of the act of 1850, which declares, that 'the legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and with this act;' and by the tenth section of the act, which, after ordaining a Supreme Court, District and Probate Courts, and justices of the peace, and after dividing the Territory into three judicial districts, and directing a District Court to be held in each district, by one of the judges of the Supreme Court, goes on to declare, that 'the jurisdiction of the several courts therein provided for, both appellate and original, and that of the Probate Courts, and of justices of the peace, shall be as limited by law.'

The inquiry regularly suggested by these provisions of the act of Congress, is not whether they invested the Legislative Assembly with authority to prescribe the subjects for the cognizance of the courts created by that act-of this there can be no doubt-but whether the authority delegated to that Assembly has been in fact, and to what extent, exerted with reference to controversies previously in litigation in the courts of the provisional Government, and to subjects of controversy subsequently arising.

Under the provisions of the act of Congress above quoted, the Legislative Assembly have, in several instances, prescribed the powers and duties of the Territorial courts, and, among others, by the fourth section of the act of that Assembly, passed on the 12th of July, 1851; by which section it is declared, that the District Courts shall have original jurisdiction in all cases, civil and criminal, in which the jurisdiction is not specially delegated to some other court; and by the second section of the act of the Assembly, approved on the 14th of July, 1851, expressly providing, 'that all bonds, writs, and processes, which have remained in force, shall be carried to a final decision in the courts established by the Legislative Assembly, to the same effect as they would have been in the courts previously existing.' As the Legislative Assembly possessed no power to organize or create courts differing from those created by the act of Congress, which act had divided the Territory into districts, and had designated the courts which should be vested either with appellate or original jurisdiction, it would seem to follow that, by an act of the Legislative Assembly, designed to preserve, and to prevent the discontinuance of rights in litigation subsisting in the courts of the provisional Government, the distribution of the cognizance of those rights was intended to be made to courts corresponding in their jurisdiction with the tribunals of the provisional Government.

Such appears to have been the interpretation, by the judges of the Supreme Court of the Territory, of the acts of the Legislative Assembly, and by which interpretation they have recognised the transfer of causes pending in the Circuit Courts of the provisional Government, for final decision, to the District Courts under the Territorial Government; and although there is some obsecurity in the language of the Territorial statutes on this subject, yet the reasonableness of their interpretation by the Supreme Court and the District Courts of the Territory commends it to our approval, and its adoption conforms to the rule of this court, by which it has followed the construction of local statutes established by the highest judicial authority of the community for whose government they are enacted.

At the trial of the issue joined upon the verity and effect of the affidavit, the plaintiff in the attachment, to maintain that issue, on his part, produced in evidence and proved the execution of an assignment, by which Leitensdorfer had conveyed all his goods, wares, and merchandise, and all his property and effects, of the late firm of Leitensdorfer & Co. Also, an instrument executed at the same time, by Joab Houghton, the other member of the firm, whereby he authorized the assignees of Leitensdorfer & Co. to use and sign his name in any way that it might be necessary for them to use it in settling the business of the late firm of Leitensdorfer & Co. By the deed from Leitensdorfer, certain creditors to the amount of between twenty and thirty thousand dollars were preferred, besides all sums of money due by Leitensdorfer & Co. for simple deposits or money loaned without interest; after which, the general creditors were to be paid pro rata, from whatever might be collected, until the assets should be exhausted. There was no inventory of assets, nor any schedule of debts due by said Leitensdorfer, attached to or accompanying the deed of assignment. The deed provided that a fair and correct list of the liabilities of Leitensdorfer & Co., and also a fair list, so far as could be made, of all the assets, was to be made within ten days after signing the deed; within this period, an inventory of assets was made out, but no list of liabilities. Some persons, whose names were not in the assignment, who had deposited with or loaned money without interest to the firm, were paid by the assignees, and the deed was not pursued in other respects. Upon the closing of the testimony on the trial in the District Court, the defendants, the now plaintiffs in error, moved the court for the following instructions to the jury, all of which were refused:

1. That as the assignment was the act of Leitensdorfer alone, with which Houghton had nothing to do, the act of one defendant would not authorize an attachment against two, and the verdict must be for the defendants.

2. That the deed of assignment was not fraudulent in law; and unless the jury find, from the evidence, that in fact, at the time of the commencement of this suit, the plaintiff had good reason to believe that the defendants had fraudulently disposed of their property and effects, so as to hinder, delay, and defraud their creditors, they must find for the defendants.

3. That as the plaintiff had shown no title to the note sued on in himself, he had no authority to sue, and the jury must find for the defendants.

The court then instructed the jury that the deed was fraudulent in law, because of the want of a schedule thereunto annexed of the property and effects conveyed to the assignees, and because of the want of a schedule of the preferred creditors, and because of a preference of some creditors; and also, if the jury found that the defendants, or either of them, had fraudulently disposed of their property and effects, so as to hinder, delay, or defraud their creditors, at the time of the commencement of this suit, they must find for the plaintiff. That the execution of the deed by Leitensdorfer, unaccompanied by the proper schedules, was a fraudulent disposition in law, as aforesaid; and that the commission of a fraud in law by the defendants, or either of them, without fraud in fact, or without an intent to defraud, was a sufficient cause for the attachment as the commission of a fraud in fact, or with intent to defraud. And also, that upon the trial of this issue it was not necessary for the plaintiff to show himself a creditor of the defendants, farther than is shown in the affidavit, to entitle him to a verdict in his favor upon the issue of the truth of the affidavit; but that the sole issue was, whether the defendants, or either of them, at the time of the commencement of the suit, had fraudulently disposed of their property and effects, so as to hinder, delay, or defraud their creditors.

Upon the refusal by the court of the first, second, and third prayers presented by the defendants, and to the granting of the instructions prayed for by the plaintiff below, the defendants excepted.

Upon the trial of the issue joined on the plea in the bar to the action, no question of law was raised, no exception taken to any of the proceedings under that issue.

On an appeal from the judgment of the District Court to the Supreme Court of the Territory of New Mexico, the judgment of the District Court was, on the 28th of February, 1853, affirmed.

It is obvious, that in the proceedings in the District Court, neither the justice nor the amount of the plaintiff's demand was put in controversy. These were not embraced within the issue raised upon the petition and affidavit. That issue related only to the right of the plaintiff to sue in a particular form of action, a right dependent upon his ability to show the alleged character of the defendants' acts, with respect to their creditors generally, and not with respect to the plaintiff particularly or exclusively. The verity and the amount of the plaintiff's demand were matters for distinct and ulterior investigation. The proceeding, then, upon the petition and affidavit, was in reality a proceeding in abatement, and not in bar of the plaintiff's debt or right of recovery. This appears to be a regular conclusion from the language of the law of the Territory, and it is in accordance with the construction by the courts of a neighboring State of a law identical in its provisions with the law of the Kearney Code, and from which law it is not improbable that the latter was adopted. (Vide Missouri Reports, vol. 5, p. 544; ib., 13, p. 118; ib., 14, p. 600; ib., 15, p. 499.)

It is true, that by the practice of the State courts the preliminary proceedings upon the petition and affidavit, and any questions of law ruled by the courts in those proceedings, are carried for review to the tribunals of last resort. But this is a practice authorized by the States under their peculiar jurisprudence. The States possess an undoubted power to permit or to require of their courts the re-examination and control of proceedings in their own tribunals, entirely interlocutory in their nature. The appellate or revisory power of this court, as defined by the Constitution and laws of the United States, is more restricted in its extent than that with which some of the States have invested their courts. By the twenty-second section of the act of Congress to establish the judicial courts of the United States, it is declared that final judgments and decrees in civil actions and suits in equity in a Circuit Court, brought there by original process, or removed there from the courts of the several States, or from a District Court, where the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs, may be examined, and reversed or affirmed, in the Supreme Court. But there shall be no reversal for error in ruling any plea in abatement other than a plea to the jurisdiction of the court, or such plea to a petition or bill in equity, as is in the nature of a demurrer.

From this provision in the act of Congress it follows, that the preliminary proceeding in the District Court of the Territory, being in its nature interlocutory, and designed to abate the particular remedy by attachment only, and having no application to the plaintiff's right to a recovery of his demand, or to the jurisdiction of the Territorial court, either as to the parties or the subject-matter of the controversy, that proceeding comes not within the appellate or revisory power of this court.

Upon the trial in chief, or upon the merits, there appears to have been no question made, nor any point reserved upon the law or the evidence; the record of this trial presents simply the finding of the jury, and the judgment of the District Court upon that finding. The decision of the Supreme Court of the Territory in sustaining the judgment of the District Court must therefore be affirmed.


text: Talk:Leitensdorfer v. Webb/Opinion of the Court


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Fisher v. Haldeman

THIS was an appeal from the Circuit Court of the United States for the eastern district of Pennsylvania.

The bill was filed by Fisher, a citizen of the State of Delaware, against the appellees, claiming to be the equitable owner of an island in the Susquehanna river, and alleging that the appellees had become possessed of the legal title by a series of frauds. The bill was quite voluminous, occupying upwards of seventy pages of the printed record, and then there was an amended bill of thirteen pages more. The substance of it, as well as the other branches of the case, are stated in the opinion of the court. In September, 1856, the Circuit Court dismissed the bill, and the complainant appealed to this court.

It was argued by Mr. Fisher for the appellant, and by Mr. John M. Read for the appellee.

The arguments of the respective counsel upon the point on which the decision of the court turned were as follows:

Mr. Fisher, in noticing the point that the islands in the Delaware and Susquehanna were reserved as the private property of the Penns, said, to meet the allegation of defendant, that the islands in the rivers were the private property of the Penns, without any warrant of appropriation.

Windmill Island, in front of Philadelphia, is noticed. This island was never surveyed for the Penns, nor for the Commonwealth.

It was applied for, July 1, 1849, by one Tatham, under the act of 1806, and Tatham now holds it. (See Jones v. Tatham, 8 Har., 398-410.)

The island in the Allegheny river, claimed by the parties, in the case of Hunter v. Howard, 10 S. and R., 243, in which his honor Judge Duncan gave the opinion of the court, was claimed and is now held under the same act of 1806.

There are more than a hundred islands in the various rivers of Pennsylvania which were never surveyed and returned for the proprietaries, under their general warrant of October 13, 1760; and all islands not so surveyed and returned before the 4th of July, 1776, were confiscated to the Commonwealth, as part of the general mass of the proprietary estate, under the fifth section of the divesting act of 1779.

Islands were treated by the proprietary Government as open to settlement and improvement long after 1760.

In the year 1770, William Dunn settled on the Great Island in the West Branch; and the island, one of the very best in the river, is held under his settlement right to this day.

The record of his title from the land office will be submitted at the hearing, under the agreement of counsel that all papers from the land office shall be read on the appeal.

Previous to the year 1760, the proprietaries had granted many islands in the Susquehanna river on common warrants and common terms. Copies of these grants and the surveys on them are in the record.

SETTLEMENT RIGHT.-A first settler holds his allowance of land, 300 acres, against the proprietaries, the Commonwealth, and all subsequent settlers and warrantees. (Gilday v. Watson, 2 S. and R., 410.)

The actual settler has always been a favorite with the courts and Legislature of Pennsylvania. (Emory v. Spencer, 11 Harris, 271.)Before the Revolution, a settler was entitled to take and hold 300 acres against proprietaries, warrantees, and other settlers. It was an actual, personal resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family, and continued from time to time, unless interrupted by the enemy. (Bonnet v. Devebaugh, 3 Binney, 184.)

The usage of the land office bound the proprietaries to grant the land to actual settlers on the usual and common terms; and should the proprietaries refuse to make the grant, chancery would enforce it. (Ibid.)

The consent of the proprietaries, in whatever way shown, was sufficient to vest an equitable title in a settler, which the courts would protect. (Sergeant's Land Law of Pennsylvania, 37.)

Mr. Read for the appellees:

The civil law which has pervaded continental Europe, and which took its rise in a country were there was a tideless sea, recognised all rivers as navigable which were really so; and this liberal view was adopted by the founder of Pennsylvania, whose province was intersected by large and valuable streams, some of which are a mile in breadth. This gave to the proprietary the ownership of all the larger streams of the Commonwealth, the riparian owner coming but to the low-water mark. The river includes what is in the river, whether above the water or under it. (Carson v. Blazer, 2 Binn., 473; Fisher v. Carter, 1 Wallace, jr., 70.)

This policy was early developed in the instructions given by William Penn, before he left England, to three commissioners for the settling of the colony, in which he said: 'Let no islands be disposed of to anybody, but let things remain as they were, in that respect, till I come.' (Hazard's An., 530.) And in after-times the proprietaries appropriated them to their own use by special warrants. Thus, from the first settlement of the country, these islands were withdrawn from appropriation. (1 Wallace, jr., 70.)

In Carson v. Blazer, 2 Binn, 477, decided on 2d June, 1810, Chief Justice Tilghman said: 'But the common-law principle concerning rivers, even if extended to America, would not apply to such a river as the Susquehanna, which is a mile wide, and runs several hundred miles through a rich country, and which is navigable and is actually navigated by large boats. If such a river had existed in England, no such law would ever have been applied to it. Their streams, in which the tide does not ebb and flow, are small.

'But there is another objection to the adoption of this principle. The common law gives to each proprietor one-half of the river adjoining his shore; and if this doctrine is applied to the Susquehanna, every owner of the bank must own all the islands nearest to that bank-a right never contended for.

'The common-law principle is, in fact, that the owners of the banks have no right to the water of navigable rivers. Now, the Susquehanna is a navigable river, and therefore the owners of its banks have no such right. It is said, however, that some of the cases assert, that by navigable rivers are meant rivers in which there is no flow or reflow of the tide. This definition may be very proper in England, where there is no river of considerable importance as to navigation, which has not a flow of the tide; but it would be highly unreasonable when applied to our larger rivers, such as the Ohio, Allegheny, Delaware, Schuylkill, or Susquehanna and its branches.'

William Penn, the proprietary and Governor of Pennsylvania in 1683, in speaking of the new city of Philadelphia, uses this emphatic language:

'The situation is a neck of land, and lieth between two navigable rivers, Delaware and Schuylkill, whereby it hath two fronts on the water-each a mile-and two from river to river. Delaware is a glorious river; but Schuylkill being a hundred miles boatable above the falls, and its course northeast towards the fountain of Susquehanna, that tends to the heart of the province, and both sides our own, it is like to be a great part of the settlement of this age.' (Lowber's Ordinances of the City of Philadelphia, p. 289.)

In Hunter v. Howard, 10 Sergeant and Rawle, 245, decided on 26th September, 1823, the opinion of the court, consisting of Judges Gibson and Duncan, was delivered by Judge Duncan, who had argued the case of Carson v. Blazer. The court say, 'Islands in the great rivers of Pennsylvania, under the provincial Government, were never the subjects of appropriation, either by office right or settlement. The proprietaries appropriated them to their own use by special warrants. This, from the consideration of the supposed superior nature, either from the quality of the soil, or the benefit of fisheries. The State has pursued the same policy. When the land office was opened, on the 8th April, 1785, for the sale of the residue of the waste lands, shortly before purchased from the natives by the State, it is provided, 'That all islands within the bed of the river Susquehanna, and of the east and west branches thereof, and of the rivers Ohio and Allegheny (and Delaware,') are excepted and reserved. And the said islands may be sold by special order of the President or Vice President, in council, concerning each of them, by public sale or otherwise, for the best prices that can be gotten for the same (islands,) and all occupancy, and every survey, claim, or pretence, for holding the same islands by any other title, shall be utterly void.' (See 13th sec. act 8th April, 1785; 2 Smith's Laws of Pennsylvania, p. 322.)

'Thus,' say the court, 'from the first settlement of the country, we see these islands were withdrawn from appropriation at the general prices of other land, but each was to be sold as an individual would sell his own land, for the best prices. This act may be called the Magna Charta, the foundation of all titles to lands in that purchase.'

'It has been modified with respect to islands; but still the Legislature kept in view the sale of the islands at a full and fair price, by the act of 6th March, 1793, (3 Smith's Laws, p. 93,) directing the sale of certain islands in the river Susquehanna. This act gave a pre-emption right to improvers for three years, directed the board of property to ascertain the just value, provided that the lowest price to be fixed by them shall not be less than eight dollars per acre. Then came the act of 27th January, 1806, (4 Smith's Laws, p. 206,) which gives rise to the present controversy, directing the sale of islands in the rivers Delaware, Ohio, and Allegheny. This act gives the improver the right of pre-emption for three years, and makes special provision how the value shall be ascertained: the officers of the land office shall appoint, on an application made for an island, three disinterested men, who shall value the same on their oaths, and shall certify the value to the secretary of the land office, who shall thereupon issue a warrant to such applicant, &c. The act declares that the pre-emption right shall be vested in the actual settler or improver for the term of three years; and that, after the expiration of that time, it shall be lawful for the Commonwealth to grant such improved island to the first who shall apply for the same, subject to the regulations and provisions contained in the act.'

In Shrunk v. Schuylkill Navigation Company, 14 Sergeant and Rawle, p. 71, decided on April 10th, 1826, after argument by the ablest counsel of the day, Chief Justice Tilghman said, (p. 79,) after enumerating the principal rivers of the State, 'Now, with us, it has never been supposed, from the earliest times to the present moment, that the owners of land on the bank had the right of property in the soil to the middle of the river in front of their land; because if they had, they would have a right to the islands also, contrary to universal opinion and practice. These islands have never been open to applicants under the common terms of office, either under the proprietary or State Government, but have always been sold on special contract, and for higher prices than common; whereas, the lands on the banks of rivers have always been open to the public, on the usual terms, and at the usual prices. For a particular account of the manner in which islands have been granted, I refer to the case of Hunter v. Howard, 10 Sergeant and Rawle, 243.

'As for the soil over which our great rivers flow, it has never been granted to any one, either by William Penn or his successors, or the State Government.'

In this very case, on the common-law side of the Circuit Court, reported in 1 Wallace, jr., Rep., p. 69, under the name of Fisher v. Carter, the late Judge Baldwin, one of the very ablest land lawyers in the State, held, on the 8th November, 1843, that at no time in the history of Pennsylvania, neither before October 13th, 1760, nor since, have islands in her great rivers been open to settlement on the same terms with fast land generally. They could be settled only on agreed terms.

The case is worthy of attentive perusal, as all the evidence contained in the present record, with the exception of some immaterial matters, was before the court, passed upon by them, and would have been settled by the jury definitively, except that the plaintiff suffered a nonsuit. Judge Baldwin's tribute to Chief Justice Tilghman is peculiarly just and appropriate. (Page 83.)

Mr. Read then referred to and commented upon the following cases-Johns v. Davidson, 4 Harris, 512, decided in 1851; Jones v. Tatham, 8 Harris, 398, decided in April, 1853; Sergeant's Land Laws of Pennsylvania, 193, 194; Rundle v. Delaware and Raritan Canal Company, 14 How., 80; 1 Wallace, jr., 274-and then traced the title of the appellees from 1760 down to the present time.

Mr. Justice GRIER delivered the opinion of the court.

title: Fisher v. Haldeman


text: Talk:Fisher v. Haldeman

title: Talk:Fisher v. Haldeman


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Fisher v. Haldeman/Opinion of the Court

The appellant filed his bill in the Circuit Court of the United States for the eastern district of Pennsylvania, claiming to be the equitable owner of an island in the Susquehanna river, containing about seven hundred acres, and praying that the respondents may be decreed to surrender to him the possession of the same, to deliver up their deeds and muniments of title, and account for the rents, issues, and profits.

In order to ascertain the questions involved in the case, it will not be necessary to give an abstract of the bill or specify the allegations of the answer. A brief statement of some of the admitted facts and charges of the bill will suffice.

It commences the history of the case with the first charter to and immigration of William Penn, the proprietor of Pennsylvania. But we do not think it necessary to go farther back than the year 1760. In that year, the proprietors, claiming that the islands in the Susquehanna and other navigable streams were their private property, had them surveyed and returned as such.

About the year 1798, the persons under whom complainant claims were found by the agent of the proprietors in possession of the island, and claiming a right, from their long occupancy, to a pre-emption right as settlers. They had occupied parts of the island as far back as 1749 or 1750, some ten years before the proprietors had surveyed it; and though not in possession at that time, had afterwards returned. They were told by the agent for the Penns, that they had no title, and if they wanted a legal title they must purchase from the Penns, and that islands never had been subject to be taken up by settlement, as the other proprietary lands. These occupants refused or neglected or were unable to purchase; and about the year 1800, Thomas Duncan purchased from the agents of the Penns. Finding these occupants on the land, he told them they had no title; that islands had never been open to pre-emption by settlement, and that he was the purchaser from the Penns of the legal title. He demanded the possession of them, offering to pay them the value of their improvements, and for a release of their claim. They accordingly released their claim, gave up their possession, and received a consideration in money from Mr. Duncan, of about twenty shillings an acre. Mr. Duncan then took possession, and he and those claiming under him have had possession from that day to this, over fifty years.

In Pennsylvania, occupants or settlers on land are never considered as holding adversely to the proprietors, or to the State, their successor. Where the land was subject to preemption in favor of settlers, those who had obtained an equity by virtue of such a settlement or improvement, had a good title as against subsequent purchasers. But until they paid the purchase-money, and obtained their patent or deed from the proprietor, no length of possession authorized a presumption of the payment thereof, or of a grant as against the proprietors or State.

In order, therefore, to evade the effect of the release by the occupants, and the surrender of their possession to Mr. Duncan, who held the admitted legal bill, the bill charges:

1. That Edmund Physic and John R. Coats, the agents of the Penns, combined and conspired with Thomas Duncan to defraud the settlers of their title to this island.

2. That this fraud consisted in the assertion that 'islands had never been subject to be appropriated as other proprietary lands, by settlement or location, but were treated as the private property of the Penns, and, as such, sold by special contract only.'

3. That the persons in possession, believing such to be the law, surrendered their possession and released their claim, whatever it might be, to Thomas Duncan, for the consideration of twenty shillings an acre, which was much less than the full value of the land.

4. That this representation, with regard to the custom or traditionary law of the province of Pennsylvania, was not true, and that Mr. Duncan must have known it to be so, and therefore made a false representation of the law to the settlers.

5. That the falsehood of this representation was not discovered till 1822.

6. That suits were then instituted, in which the judgments were against the title of plaintiff, in consequence of erroneous or unjust decisions of the courts.

Without noticing the objections to this bill on account of staleness, and the defence that Haldeman is a purchaser for valuable consideration without notice, it is plain that the whole foundation and superstructure of the case rests on this assumption, to wit: 'That in 1749, by the law of the land, a preemption right to islands in the Susquehanna river could be obtained by settlement.' If this be not so, the plaintiff's case falls to the ground, and the numerous other objections to this bill need not be noticed.

Now, this is a question of fact, depending on the history and traditions of the province of Pennsylvania, of which the decisions of her own courts are the best evidence, and conclusive on this court. The order of survey of 1760, by which the islands of the Susquehanna, and this among others, were appropriated to the private use of the proprietors, together with the manors reserved, is itself prima facie evidence that the proprietors never considered these islands as open to settlement as other lands. And this inference is fully confirmed by the instructions given by William Penn, before he left England, to the three commissioners for the settling of the colony, in which he said: 'Let no islands be disposed of to anybody, but let things remain as they were, in that respect, till I come.' (Hazard's An., 530.)

The State of Pennsylvania, by what was called the 'divesting act,' assumed, for a certain consideration, all the proprietary rights of the Penns over the colony, as distinguished from their private rights of property, and pursued the same policy which had been adopted by them as to islands in navigable rivers. The act of 18th April, 1785, orders islands in the new purchase ¢to be sold for the best prices that can be gotten for the same, and declares, 'all occupancy and every survey, claim, or pretence for holding the same islands by any other title, shall be utterly void.'

The statute thus recognised and continued the rule as it was found to have existed under the proprietary Government.

By the common law, fresh-water rivers do not come within the category of navigable rivers, and the riparian owners had a right to all the islands in the river, 'ad medium filum aquae.' But such has never been the law in Pennsylvania. In the case of Carson v. Blazer, (2 Binney, 473,) this peculiarity of the traditionary law of Pennsylvania, differing from the common law of England, was first recognised by judicial authority. The late Chief Justice Tilghman, speaking of the proprietary, says: 'No doubt he retained the entire right to the river, and of everything in the river, in order that he might make such use of it as would be most conducive to the public benefit.' And again, in Shrunk v. The Schuylkill Nav. Co., (14 S. and R., 79,) he remarks: 'These islands have never been open to applicants under the common terms of office, either under the proprietary or State Government,' and refers with approbation to the case of Hunter v. Howard, (10 S. and R., 243,) which decides that, 'from the first settlement of the country, islands in the great rivers of Pennsylvania, under the provisional Government, were never subjects of appropriation, either by office-right or settlement.' This doctrine has continued to be recognised as settled law in Pennsylvania for half a century. See Fisher v. Carter, (1 Wallace, p. 69;) Johns v. Davidson, (4 Harris, 516.) It is treated as such in the learned work of Judge Sergeant on the Land Laws of Pennsylvania, p. 193. Nor can any case be found in the reports or traditions of the bar, which varies or contradicts this uniform course of decision. It is through these sources alone that this court must seek for a solution of the question; and finding the law so established by the tribunals of the State, we are bound to acquiesce in and follow their decisions.

The decree of the Circuit Court is therefore affirmed, with costs.

title: Fisher v. Haldeman/Opinion of the Court


text: Talk:Fisher v. Haldeman/Opinion of the Court


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Thompson v. Selden

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 facts of the case are stated in the opinion of the court.

It was argued by Mr. John S. Tyson for the plaintiff in error, and by Mr. Magruder for the defendants. On that side, also, was a brief by Messrs. Davidge, Ingle, and Chilton.

Mr. Tyson, for the plaintiff in error, made the following points:

The act of Congress, September 24, 1789, empowers the Circuit Courts of the United States, in the trial of actions at law, on motion and due notice thereof being given, to require the plaintiffs to produce books or writings, in their possession or power, which contain evidence pertinent to the issue in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery.

The record, page 9, (affidavit No. 1,) shows that said books were pertinent to the issue, and (affidavit No. 2) that due notice was given to plaintiffs below to produce said books and papers.

The court's refusal to grant the order, which was an order nisi only, was error.

The order nisi issues, as a matter of course-ex debito justitiae. (2 Dall., 333, Geyger v. Geyger; 11 Johns. R., 245; Lawrence v. The Ocean Ins. Co.; 3 Wash. C. C., R., 381, Joseph Bas et al. v. Steele.)

It is not necessary that the party applying for the order nisi should first produce proof of the pertinency of the evidence a simple suggestion to that effect is sufficient. (Hylton v. Brown, 1 Wash. C. C. R., 298.)

If that suggestion was not sufficient in affidavit No. 1, p. 9, it was rendered completely so by affidavit No. 3, p. 10.

The court, therefore, certainly erred in refusing the order nisi moved after the filing of the affidavit No. 3.

Competency and pertinency of the evidence sought fully shown by that affidavit.

Entries on partnership books may be given in evidence, if made before dissolution. (2 Wash. C. C. R., Assignees of Simonton v. Boucher et al.; ib., 482, Jordan v. Wilkins.)

A fortiori, entries on the books of a banking establishment.

This proceeding, under the act of 1789, is in the nature of a bill of discovery, and proceedings under it. (Wendall's Rep., vol. 9, 458, 6 Cowen, 62, Bank of Utica v. Hilliard; 1 Johns. R., 395, Kenny v. Vanhorne and Clarkson; Cowen and Hill's Notes to Ph., 191; Notes to Phill., 197.)

The right to a bill of discovery, although said to be a right of the plaintiff, is also a right of the defendant, because by cross bill he can always make himself plaintiff. (Wigram on Discovery, 24, 25.)

To a bill of discovery a party must answer. (Ib., 207.)

By an act of the General Assembly of Maryland, chap. 72, sec. 21, passed in 1785, the defendant in equity has the same power to interrogate the plaintiff that he has to interrogate the defendant. (Gresley's Treatise of the Law of Evidence in Courts of Equity, 43 to 46.)

So upon an order nisi, if the party refuses to show cause, the order becomes absolute. (Hylton v. Brown, 1 Wash. C. C. R., 298.)

The court further erred in refusing the necessary order, after the jury was sworn.

The plaintiff below could not resort to the alternative of giving evidence of the contents of the books and papers called for, because impossible. He was in that state of necessity which the law always respects and relieves. The court, in this necessity, refused even to continue the cause. In general, the refusal to continue a cause is not error, but it is presumed that this rule is not without exceptions, and that in a case like this, where by the action of the court the defendant is placed at the mercy of the plaintiff, the least the court could do would be to continue the cause. (Act Assem. Maryland, 1787, chap. 9, sec. 8.)

Upon the whole, the whole action of the court was the withholding from the jury of competent evidence offered by the defendant below, and that is error. (12 Pet., 154, Martha Bradstreet v. Anson Thomas; 17 How., p. 13, Cowen and Hill's Notes, vol. 4, p. 775, 776; 1 Duer, Sup. C. R., 431, 434.)

The counsel for the defendant in error made the following points:

I. That the notice to produce books and papers, served by the defendant on the plaintiffs' counsel below, in the record referred to, was insufficient in point of time, and too general in its terms and extent. (1 vol. Stat. at Large, p. 82; 2 Cranch C. C. R., 427; ib., 336; 3 Cranch C. C. R., 646.)II. That the said notice and affidavits filed therewith are defective, because they do not show or aver that the evidence sought was 'pertinent to the issue,' and such as the plaintiffs 'might be compelled to produce by the ordinary rules of proceeding in chancery.' (3 Johns. C. R., 45; 16 Johns. R., 591, 598.)

III. That the exercise of the power invoked by the defendant's motion to produce books, &c., is matter of sound discretion with the court, and not imperative and unconditional, and that the record does not show that this discretion has been abused by the court below.

IV. That the refusal of the court to continue the cause is not error-such a motion being always addressed to the sound discretion of the court. (6 Cranch, 206, 218.)

V. That the record does not show any proper ground on which the writ of error can be sustained; and that if this result be attributable to the meagreness or omissions of the transcript, such defects must operate to defeat the plaintiffs in error, since the rule of the court, and all the intendments of the law, are in favor of the correct ruling of the court below.

Mr. Chief Justice TANEY delivered the opinion of the court.

title: Thompson v. Selden


text: Talk:Thompson v. Selden

title: Talk:Thompson v. Selden


text:
Thompson v. Selden/Opinion of the Court

This is a writ of error to the Circuit Court for the District of Columbia, upon a judgment rendered in that court in favor of the defendants in error, in a suit brought by them upon certain promissory notes set forth in the pleadings.

Some time before the trial, a notice was served on Selden, Withers, & Co., the defendants in error, to produce certain books and papers mentioned in the notice; and that, unless they were produced at the trial, the plaintiff in error would move the court for a nonsuit, or for a like judgment as in cases of nonsuit; and an affidavit was made by the plaintiff in error, that the books and papers specified were necessary for his defence. Those applications and motions were afterwards repeated before the trial and at the trial, upon further affidavits and notices to the same effect, which it is not necessary here to set forth.

They were opposed by Selden, Withers, & Co., who were the plaintiffs in that court, and the motions were all overruled by the court. The exception does not state on what ground they were opposed, nor upon what ground they were overruled; and as far as the case is disclosed in the record, we see nothing in the rulings of the court to impeach its judgment.

The fifteenth section of the judiciary act of 1789, under which these proceedings were had, authorizes the court, upon motion and due notice thereof, to require a party to produce books or writings in his possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery; and if a plaintiff shall tail to comply with such order, it shall be lawful for the court, on motion, to give the like judgment for the defendant as in cases of nonsuit.

The transcript does not show that any motion was made for an order upon the plaintiff to produce the books and papers mentioned in the notice. It shows that a motion was made to render a judgment of nonsuit for not complying with the notice, and also a motion for a continuance of the case. But the court is not authorized by the act of Congress to enter a judgment of nonsuit upon the failure of the party to comply with the notice. The notice is merely a preliminary proceeding, to enable the party to bring before the court the motion for the order to produce; and when that motion is made, the party called on has a right to be heard, and he is not bound to produce the books and papers called for, until the court shall order him to produce them, and is in no default unless he refuses or neglects to obey the order. The court were therefore right in refusing to enter the judgment, when no order had been moved for or granted.

And as regards the motion to continue the case, it has often been decided by this court, that the refusal of an inferior court to continue a case to another term cannot be assigned for error here. Justice requires that the granting or refusal of a continuance should be left to the sound judicial discretion of the court where the motion is made, and where all of the circumstances connected with it, and proper to be considered, can readily be brounght before the court.

We think, therefore, that neither of the objections taken here can be sustained, and that the judgment of the Circuit Court must be affirmed.

title: Thompson v. Selden/Opinion of the Court


text: Talk:Thompson v. Selden/Opinion of the Court


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Dean v. Mason

THIS was an appeal from the Circuit Court of the United States for the district of Rhode Island.

The bill was filed by Nathan Mason, of the city of Providence, in said district, planer of boards; Charles D. Gould, of Albany, in the State of New York; William W. Woodworth, of Hyde Park, in the northern district of New York, as he is administrator of William Woodworth, late of the city of New York, gentleman, deceased; and as he is grantee of certain exclusive privileges under and pursuant to an act of Congress, as is hereinafter fully set forth; James G. Wilson, formerly of the city of Philadelphia, and now of Hastings, in the State of New York, gentleman; and Richard Borden, and Jefferson Borden, both of the town of Fall River, and district of Massachusetts, against Dean, of the city of Providence.

The facts of the case are stated in the opinion of the court.

It was argued by Mr. Jenckes for the appellant, and by Mr. Payne for the appellees, upon which side there was also a brief filed by Mr. B. R. Curtis and Mr. Payne.

Mr. Jenckes made the following points:

1st. The rule laid down by the court in both decretal orders, for the computation of profits, is erroneous. It is not in accordance with the prayer of the bill, or with the rule of law in such cases, as established by this court. The rule should have been to take an account of the actual gains and profits of the appellant, during the time his machines were in operation. This point has received an express adjudication in this court.

'In a suit in equity for an injunction and account of profits of a patented machine, the defendant is accountable only for what profits he actually made, not for what by diligence and skill he might have received.' (Livingston et al. v. Woodworth et al., 15 How., 546.)

2d. The court below was in error in refusing leave to the defendant to answer on the motion to set aside the decree pro confesso, and allow the defendant to answer.

3d. The court below should have dismissed the complainants' bill, upon the proof that they had parted with all their interest in the subject-matter of the suit.

4th. The court below was in error in refusing leave for the filing of a supplemental bill in favor of Baker & Smith.

They had clearly succeeded to the complainants' title, and their proposed bill contains averments, verified by their oaths, which entitled them to the relief prayed for. The defendant below had started his machines, and was using them to the injury of the owners of the patent. No process of contempt could be moved for by the complainant Mason, for he had parted with his interest. The proposed parties complainant, Baker & Smith, were entitled to the benefit of what had been done, on the title which they had acquired. (Story Eq. Pl., secs. 339, 349, 351; Calvert on Parties to Suits in Eq., pp. 99, 100.)

The fact that an interlocutory decree had been entered upon Mason's title did not bar his grantees who had purchased that title. A supplemental bill may be filed as well after as before a decree. (Story Eq. Pl., sec. 338.) In this case it was proposed to be filed 'in aid of the decree, that it might be carried fully into execution.'

If the supplemental bill had been filed, the defendant below would have been entitled to answer both the original and supplemental bills, and his full defence to this suit would thus have been made to appear. The hearing upon the decree prayed for would have necessarily led to an inquiry into the propriety of the decree sought to be enforced; and the court below could then have followed the decision of this court in Bloomer v. McQuewan, and dismissed the bill, as the Circuit Court in the case of Perkins v. Fourniquet reversed its interlocutory decree after the adverse decision of this court in a similar case. (See 1 Barbour's Ch. R., 363, et seq.)

5th. These questions are all proper to be discussed on appeal. This point has received the direct adjudication of this court.

'An appeal in equity brings up all the questions decided in the court below to the prejudice of the appellant.' (Buckingham v. McLean, 13 How., 150.)

The counsel for the appellees made the following points:

1st. With respect to the motion to strike out the decree pro confesso, and allow the defendant to answer.

The decision of the motion to open the decree and allow an answer to be filed, even when made at the proper term, rests in the sound discretion of the Circuit Court, and is not subject to re-examination here. Wylie v. Coxe, 14 How. R., 1, is directly in point. If further authorities are needful, The Marine Insurance Company v. Hodgson, 6 Cranch, 206, where the refusal of the Circuit Court to allow a plea to be filed, United States v. Evans, 5 Cranch, 280, and Welch v. Mandeville, 7 Cranch, 192, where its refusal to reinstate the plaintiff, were in question, show that this court cannot review such decisions of the Circuit Court.

A reference to the nineteenth rule for the practice of the Circuit Courts in equity will show how entirely the allowance or refusal of this motion, if made in time, rests in the discretion of the Circuit Court.

2d. As to the motion to dismiss the bill.

Such a motion, based upon facts dehors the record, was wholly irregular, and could not be allowed.

And it may be added that, even if regular, and the facts upon which it was alleged to rest had been shown, they constituted no objection to a final decree.

A transfer of the title by each of the plaintiffs, pendente lite, cannot affect the rights of the defendant. (Eades v. Harris, 1 Young and Col. N. R., 230.) Certainly it could not do so in this case; for the allegation is, that Mason parted with his title in April, 1852, (see page 122,) and the account of the profits comes down only to the 29th of August, 1851. (See pages 56, first paragraph; 101, fourth paragraph.)

3d. As to the interlocutory decree, by which the cause was referred to the master to take an account.

We submit that the appellant cannot now take an objection to that decree.

The nineteenth rule expressly provides, that a decree founded upon an order taking a bill for confessed, shall be absolute at the close of the term at which the decree is entered. If this defendant (who admits that he was actually cognizant of all the proceedings, and that he intentionally allowed them to take place) intended to object to a direction given to the master, he should have appeared and objected then, before the proceedings were had in the master's office. At all events, he might, and should, when the master's report came on for confirmation, have taken his objection. Having suffered all these opportunities to pass, he cannot now, for the first time, take the objection in the appellate court.

But if this court should think otherwise, we submit that whatever error existed in the directions given to the master, it was cured by the proceedings which actually took place.

The appellant rendered an account to the master of his receipts, and of the allowances he claimed. His account of his actual receipts was not questioned, and was taken by the master as the basis of his report. The dispute arose upon the allowances, the principal items of which were rents, fuel, labor, carting, oil, and repairs. If the appellant had carried on the business of planing only, these items would have been capable of being distinctly vouched and liquidated. But in point of fact, his planing business was carried on upon the same premises, and by the same power and labor, which were used for much other machinery. The expenses of the planing business were therefore not liquidated and distinct items.

They were necessarily to be arrived at only by estimates, based on a view of the whole business, and of the proportionate cost of this part of it. The master, therefore, went into an examination of the entire cost of the several items of expense, and of the just proportion of it which belonged to the planing business.

It is difficult, without a perusal of both his reports, and of the exceptions taken to them, and of the decrees of the court thereon, to obtain a correct view of his action; but we submit that such a perusal will show that no speculative rule of profits was applied by him; that estimates were not resorted to, save in reference to the expenses where they were absolutely necessary; and that the results of the proceedings before him were these-that the appellant was charged only with what he admitted he actually received, and was allowed all, which, upon a fair view of the evidence, it appeared he had actually expended in this part of his business. By reference to the items stated by the master at the foot of page 55, and an examination of the preceding part of the report, in which he shows how he arrived at each of those items, and also by reference to his subsequent report, p. 98, as to some of them which he had been required to re-examine, we submit it appears that the balance which he reported was a balance of actual profits; and that therefore it became wholly immaterial that he might have found possible profits. So the appellant seems to have considered; for at no time, nor in any form, did he object that possible profits had been charged.

In McMicken v. Perin, 18 How., 507, where a bill was taken pro confesso, and at the same term a decree of reference was made, it was objected that the master had not allowed to the appellant the amount admitted by the bill to be due to him. But as no exception had been taken to the master's report, this court refused to reverse the decree. Certainly, it is not more apparent on this record than it was on that, that the master's report is erroneous; and if an exception was indispensable then, why not here?

Mr. Justice McLEAN delivered the opinion of the court.

title: Dean v. Mason


text: Talk:Dean v. Mason

title: Talk:Dean v. Mason


text:
Dean v. Mason/Opinion of the Court

This is an appeal from the Circuit Court for the district of Rhode Island.

A bill was filed in this case by Mason et al., claiming to be owners of a territorial right to the exclusive use of the Woodworth patent for planing boards, charging the defendant with using three of the machines in the city of Providence, in violation of the complainant's right. The suit was commenced the first year of the extension of that patent by Congress, and the three machines which were sought to be enjoined were those used during the first extended term of the patent, under a license from its owners. A preliminary injunction was granted.

At the June term, 1851, of the Circuit Court, a decree pro confesso was entered against the defendant, and he was perpetually enjoined. The case was referred to a master, to take and account of the profits or income derived by the defendant, or which by reasonable diligence might have been realized by him, from the use made of the three machines.

Exceptions were taken to the first report of the master, and it was referred to him again under the same instructions.

Before the second report of the master, a motion was submitted to the court by the defendant to set aside the decree pro confesso, and for leave to answer the bill, on the ground that the Supreme Court in the case of Bloomer v. McQueen et al., 14 Howard, 539, had held, in a case similar to this, that the licensee's privilege continued under the extension of the patent by Congress, the same as under prior extensions; but the court refused the motion; consequently, the appeal does not bring before us any question under the last extension of the patent.

At the November term, 1854, the master made his second and final report, in which he stated the sum of $2,566.46 as the amount of profits which the defendant, by reasonable diligence, might have derived from the use made by him of such patented machines, and the sales of the products thereof, during the period covered by the suit.

The decree was entered, on the report of the master, for the estimated amount of profits which the defendant, with reasonable diligence, might have realized; not what, in fact, he did realize. This instruction was erroneous. The rule in such a case is, the amount of profits received by the unlawful use of the machines, as this, in general, is the damage done to the owner of the patent. It takes away the motive of the infringer of patented rights, by requiring him to pay the profits of his labor to the owner of the patent. Generally, this is sufficient to protect the rights of the owner; but where the wrong has been done, under aggravated circumstances, the court has the power, under the statute, to punish it adequately, by an increase of the damages.

The injury done is measured by the supply of planed boards thrown upon the market, which lessens so much the demand. But, if the liability of an infringer is to be increased by an estimate of the work he might do, with great diligence, he will be more likely to exceed the estimate than fall below it. This policy would increase the evil of the wrong-doer, without benefit to any one. In Livingston et al. v. Woodworth et al., 15 How., 546, the true rule of damages in such cases is laid down.

It is contended the court erred in refusing leave to the defendant to answer, on the motion made at June term, 1853.

A motion to amend, or file an answer after default, is gen erally addressed to the discretion of the court. Under some circumstances, the court, for the purposes of justice, will go great lengths in opening a default and allowing a plea to be filed. But this is done or refused by the court, in the excrcise of its discretion, which is not subject to the revision of this court.

In the case before us, the motion to file an answer was not made until after the decree pro confesso had been entered, and a reference made to a master for an account. This was more than three years after the bill was filed. Whether the Circuit Court refused the motion on the ground of delay, or a want of merits in the cause assigned, does not appear; but it is sufficient to say, that on such grounds the decree cannot be reversed.

The motion to dismiss the complainant's bill, upon proof that they had parted with all their interest in the subject-matter of the suit, was properly overruled. The allegation is, that Mason parted with his title in April, 1852, and the account of the profits is brought down only to the 29th August, 1851. The right asserted in this action was not affected by the conveyance of Mason to Baker & Smith.

The refusal of the Circuit Court to permit a supplemental bill to be filed by Baker & Smith, was, under the circumstances, a matter of discretion in the court; and it affords no ground for the reversal of the decree. It is not perceived what interest these assignees could have in a suit for an infringement of the patent, before their right accrued; and any attempt to make them parties, with the view to benefit the defendants in the pending suit, was unsustainable.

For the reasons assigned, the decree for damages must be reversed, at the costs of the defendants in error, as founded on an erroneous estimate; and the cause is remanded to the Circuit Court, with instructions to enter a decree for the amount of the profits realized by the defendant from the wrongful use of the patent.

title: Dean v. Mason/Opinion of the Court


text: Talk:Dean v. Mason/Opinion of the Court

title: Talk:Dean v. Mason/Opinion of the Court


text:
Carroll v. Dorsey

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.

A motion was made to dismiss it, by Mr. Bradley and Mr. Charles Lee Jones, for the following reasons, viz:

That it is manifest, by the record filed in this court in the said cause, that the judgment therein was rendered in the Circuit Court of the District of Columbia, at the October term of said court, in the year 1851.

That the appeal bond filed therein bears date the 27th day of May, 1853; that the recital of the said bond sets out a writ of error, returnable to the term of this court to be holden on the first Monday of December then next ensuing; that the said bond was approved on the 17th day of December, 1853, being after the return day of said writ, as set out in the said bond; that the citation and writ of error were both issued on the 17th day of December, 1853, and the said writ of error was returnable to this court, without designating to what term the same should be returned; that the transcript of the record of the said cause was not returned to or filed in this court until the December term, 1856.

And therefore they say, for the said irregularities in the said proceedings, patent on the face of the record of the said cause, the said cause ought to be dismissed.

The motion was opposed by Mr. Coxe, who, after explaining the cause of the delay, contended that inasmuch as a general appearance was entered at December term, 1856, the motion to dismiss now came too late.

As a general rule, defects in mesne process are cured by appearance. (1 Bos. and Pul., 105, 250, 644.)

In 3 Cranch, 496, process had irregularly issued, in contravention of the express language of a statute prescribing to whom it should be directed. This irregularity was specially pleaded and demurred to. The court unanimously held that the appearance by attorney cured all irregularity of process.

In Harrison v. Rowan, 1 Peters C. C. R., 489, the true distinction is taken. It is said the eleventh section of the judiciary act, which relates to the service of process, is not a denial of jurisdiction, but the grant of a privilege to the defendant not to be sued out of the State where he resides, which he may waive by a voluntary appearance. (14 Peters, 174, 299.)

In 3 Dallas, 87, one error alleged was, that a monition should have issued; but this court held, that if this was a defect inquirable into by it, it was cured by appearance. (8 Wheat., 699.)In 4 Cranch, 180, it was held, that where the writ of error is returned, although not at the first term, the appearance of defendant in error waives all objection to the irregularity.

In 3 Howard, 693, McDonogh v. Millaudon, the party by appearance and delay was held to waive all objection; and in 13 Howard, Buckingham v. McLean, a motion at a subsequent term after appearance was held to be too late.

As to any irregularity in the form of the writ, that at most is a mere clerical error, and cannot prejudice the parties in the case.

Mr. Chief Justice TANEY delivered the opinion of the court.

title: Carroll v. Dorsey


text: Talk:Carroll v. Dorsey

title: Talk:Carroll v. Dorsey


text:
Carroll v. Dorsey/Opinion of the Court

A motion has been made to dismiss this case, for want of jurisdiction.

It appears that an action of ejectment was brought by the plaintiffs in error against the defendants, in the Circuit Court of the District of Columbia, and upon the trial the verdict and judgment was for the defendants.

The particular day on which the judgment was rendered is not given; but it is stated as a judgment on the third Monday in October, in the year 1851, which it appears was the first day of the term. But it also appears that two exceptions were taken at the trial by the plaintiffs, one dated the 20th and the other the 22d of November; so that the judgment would seem to have been rendered a few days before the December term, 1851, of this court.

No steps were taken to bring it here for revision, until the 27th of May, 1853, when an appeal bond was approved by the presiding judge, which recites that the plaintiffs had obtained a writ of error, returnable to the next term of this court, and filed it in the clerk's office. No such writ of error, however, appears to have been issued. A paper, purporting to be a writ of error, was issued after the commencement of December term, 1853; that is, on the 17th of that month. This paper is made returnable to the Supreme Court in general terms, without naming any day or even any term at which the defendants were required to appear. The transcript before us also contains a citaion, signed by the presiding judge, and the service is acknowledged by the attorney for the defendants. But the citation, like the paper purporting to be a writ of error, specifies no day or term at which the defendants are required to appear, and, moreover, is not itself dated.

No further proceedings were had, to bring up the case, until December term, 1856, when the record was filed without any other writ of error, bond, or citation; and at the same term the defendants, by their counsel, appeared in this court.

It is evident, from this statement, that the case is not before the court. The act of 1789, sec. 22, requires that the writ of error should be made returnable on a certain day, therein named; and, indeed, upon common-law principles, a certain return day in a writ of error is essential to its validity. There is therefore no process by which the case is legally brought before this court, and consequently we have no jurisdiction over it. And if the process was free from exception, and if a writ of error, such as is known and recognised by law, had been issued and filed in the Circuit Court, yet no transcript of the record was filed here until nearly three years afterwards; and this court have repeatedly said that the transcript of the record must be filed at the term next succeeding the issuing of the writ or the taking of the appeal, in order to bring the case within the jurisdiction of this court.

But it is said, on behalf of the plaintiffs in error, that these are mere irregularities, which were waived by the general appearance at the last term, and that the motion at the present term is too late.

Undoubtedly the appearance of the defendants at the last term, without making a motion to dismiss, cures the defect in the citation. The citation is nothing more than notice to the party to appear at the time specified for the return of the writ of error. And if he appears, it shows that he had notice; and if he makes no objection during the first term to the want of notice, or to any defect in the citation, he must be regarded as having waived it. The citation is required for his benefit, and he may therefore waive it if he thinks proper, and proceed to trial in the appellate court. This point was decided in the case of the United States v. Yulee et al., 6 How., 603; but the court at the same time said that the appearance did not preclude the party from afterwards moving to dismiss for the want of jurisdiction, or upon any other sufficient ground.

The same point was again decided in the case of Buckingham et al. v. McLean et al., 13 How., 150, in which the court said that a motion to dismiss for want of a citation must be made at the first term at which the party appears, and is too late if made at a subsequent term. But the want of a writ of error, such as is prescribed by the act of Congress, stands on different ground. And in the case of the United States v. Curry, 6 How., 118, the court held, that where the power of the court to hear and determine a case is conferred by acts of Congress, and the same authority which gives the jurisdiction points out the manner in which it shall be brought before us, we have no power to dispense with the provisions of the law, nor to change or modify them.

Upon this ground, the case is not legally before us, and must be dismissed for want of jurisdiction.

title: Carroll v. Dorsey/Opinion of the Court


text: Talk:Carroll v. Dorsey/Opinion of the Court


text:
Chaffee v. Hayward

THESE cases were brought up, by writ of error, from the Circuit Court of the United States for the district of Rhode Island.

At an early day of the term, Mr. Pitman, counsel for the defendant in error, moved to dismiss the writs of error upon the ground stated below, and filed the following affidavit in support of the motion:

SUPREME COURT OF THE UNITED STATES, NO. 51; DEC. TERM, 1857.

Edwin M. Chaffee, Trustee of Horace H. Day, Plaintiff in Error, v. Nathaniel Hayward.

The defendant in error in this cause moves that this cause be dismissed, the citation herein having been signed by the clerk of the Circuit Court, and not by the judge, as required by law. By his attorney,

JOSEPH S. PITMAN.

I, Joseph S. Pitman, of the city and county of Providence, and State of Rhode Island, &c., attorney at law, on oath say, that I am and have been associated with Charles S. Bradley, Esq., in the defence of the above cause; that he is the junior counsel in said cause; that he left the city of Providence for Europe on the first or second day of December, 1856; that we had no consultation respecting the management of said cause before his departure, Mr. Bradley expecting to return by the first of March, 1857; that after his departure I caused an appearance to be entered in said cause, and did not file a motion for the dismissal of said cause at the last term, because I did not wish to decide on the expediency of that motion without consultation with him; that I expected he would return in season for such consultation, either before the court adjourned, or that I should have opportunity to make that motion after consultation with him at an adjourned term of this court, which I supposed would be held as at the December term, 1856; that to my surprise this court adjourned about the seventh day of March, and the opportunity was lost, as Mr. Bradley did not return to this country until the twenty-fourth of March, 1857.

JOSEPH S. PITMAN. RHODE ISLAND DISTRICT, ss.

Clerk's Office, Circuit Court of the United States.

On this nineteenth day of December, A. D. 1857, came the above-named Joseph S. Pitman, and made oath that the foregoing statements are true. Before me.

[SEAL.] Witness my hand and official seal, at Providence.

HENRY PITMAN, Clerk Circuit Court U.S., R. I. Dist.

Upon which motion Mr. Chief Justice TANEY delivered the opinion of the court.

title: Chaffee v. Hayward


text: Talk:Chaffee v. Hayward

title: Talk:Chaffee v. Hayward