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Stewart v. Sonneborn/Dissent Bradley

MR. JUSTICE BRADLEY dissenting.

I am obliged to dissent from the judgment of the court in this case. It hardly needs any reference to authorities to establish the familiar doctrines laid down in the opinion. As applied to ordinary cases of actions for malicious prosecution and arrest, they are elementary law. It cannot be gravely supposed that when the court below instructed the jury that the question of malice and probable cause was not before them except on the question of vindictive damages, it meant to ignore or to dispute the law as laid down by the court.

The question, as viewed by the court below, was not as to what is incumbent on the plaintiff to prove in an ordinary action for malicious prosecution, but whether the defendant in this particular case stood in the category that entitled him to require such proof.

No one doubts that in an ordinary action of this kind malice must be proved, and that probable cause for the prosecution is a defence. The sole question was whether this was such an ordinary action, or not; and this question has not been met by the counsel at the bar, and I do not think it is met in the opinion of the court.

What are the grounds and reasons for the stringent rules imposed upon a plaintiff in an action for malicious prosecution? Why is he obliged to prove actual malice, and why is it that the defendant may justify by probable cause? The reason undoubtedly is, that every man in the community, if he has probable cause for prosecuting another, has a perfect right, by law, to institute such prosecution, subject only, in the case of private prosecutions, to the penalty of paying the costs if he fails in his suit. If this were not so, it would deter men from approaching the courts of justice for relief. Prosecutions may fail from many causes independent of the justice of the case; and it would be very hard to visit a man with heavy damages for making a complaint, or bringing a suit, when he had probable cause for it. Hence the law gives to every man a right to complain of or sue another, if he has probable cause to believe he has ground for such complaint or suit. For the exercise of this right he cannot be made accountable in damages, except so far as the law, for the discouragement of private suits, imposes upon him the costs of the litigation. In the case of criminal charges, this right of making complaint is given to every man, for all are interested in the preservation of public order. It is not necessary that the complainant or prosecutor should show any private interest in himself. But in the case of a civil suit, the prosecutor must base his demand upon some claim due, or supposed to be due, to himself. Without any claim, or pretence of claim, a suit brought in his own name, or in the name of another, would be of itself unlawful, malicious, and without probable cause.

In short, upon probable cause, every man has a right to bring a charge against another for a public offence; and every man supposing himself to be wronged by another, may bring suit for the redress of that wrong. The law gives this right, and protects it in an action brought for malicious prosecution or malicious arrest.

But suppose that, in any class of cases, the law did not give this right; could the party then stand, for his defence, upon the question of malice and probable cause? Most assuredly not. He could not bring himself within the proper category. He would then be liable, at all events, for the actual damage caused by an unjust prosecution; just as much so as the man who should assault and wound another, or take and carry away his goods. And if an action should be brought against him for such unjust prosecution, a charge of malice, or want of probable cause, introduced in the declaration, would, at most, be regarded as surplusage; or the prosecution would, per se, be regarded as malicious. The allegation of malice would no more prejudice the right of recovery than did similar allegations of fraud and intent to deceive and injure, in the old action of assumpsit. If a man does not bring himself within the category of right to sue given by the law, then it is clear that he cannot avail himself of the indulgence allowed by the law of showing probable cause for the suit.

That was precisely the question in this case. The court below did not pretend to say that if Stewart & Co. had a right to institute proceedings in bankruptcy against Sonneborn, they could not, if unsuccessful, have availed themselves of all the defences applicable in ordinary cases of actions for malicious prosecution. But, whether right or wrong in its views, it held that Stewart & Co. did not come within the category of persons having such right. It held that the bankrupt law gave such right to creditors only, not to those who only believed themselves to be creditors, but were not such. It held that the fact of their being creditors was a condition precedent to their right to institute bankrupt proceedings. The words of the law as found in sect. 39 of the Bankrupt Act are, that a person owing debts, and doing certain things enumerated in the section, 'shall be deemed to have committed an act of bankruptcy, and subject to the conditions hereinafter prescribed, shall be adjudged a bankrupt, on the petition of one or more of his creditors, the aggregate of whose debts provable under this act amount to at least $250.' In construing this section the court held that, whilst the law did not require that a man should establish his debt by a judgment before instituting proceedings in bankruptcy, it nevertheless required that he should be, in fact, a creditor; and that, if his debt was disputed by the debtor, the responsibility was on him (the creditor) to establish it. If this were not so, then, a man prosecuting an old disputed claim against another, which the latter had always repudiated, and which was still contested in the courts, could effectually ruin his antagonist by simply swearing to his claim and throwing him into bankruptcy; and the latter, though finally successful in demonstrating to the courts the invalidity of the claim, would be without any redress except the petty satisfaction of recovering the costs of the suit. The court below held that this was not the law; and that a man who assumes the responsibility of throwing another into bankruptcy, and drawing down upon him all the consequences of breaking up his business and ruining his prospects for life, must be prepared to show that at least he is in fact a creditor of his victim, and therefore in the category of those who have a right to institute such proceedings.

In the present case, Stewart & Co. claimed to be creditors of Sonneborn; but the claim was disputed and in litigation when the proceedings in bankruptcy were commenced. It seems to me that the court was right in holding that the issue of the litigation of the claim was at Stewart & Co.'s risk, so far as the question of their right to institute proceedings in bankruptcy was concerned; and that, if they failed to establish their claim against him, they could not excuse themselves for the outrageous wrong of breaking up his business, and blighting his life, by showing that they had probable cause to believe that their claim was valid.

This position does not in the least disaffirm the right of a creditor-one who is really such-to plead, or show, probable cause for instituting bankruptcy proceedings against his debtor, where those proceedings are dismissed for want of sufficient ground, or for any other cause. A creditor has the right, by the law, to institute such proceedings upon probable cause. But, in my judgment, one who is not a creditor in fact has no such right. The law does not give him any such right.

The power to throw a man into bankruptcy and thus destroy his business, and all hope for the future, is one of great magnitude to be given to one man over another. A wealthy man or firm, with extensive business connections, having this means of destruction in his hands, wields a tremendous power. The indiscriminate exercise of the power by many heavy capitalists throughout the country, as a means of collecting their debts, or holding it in terrorem over their debtors for that purpose, was one of the causes which made the late law odious to the community, and produced its repeal. In my judgment, the construction given to it by the court below, on the point in question, was a wise and proper one; calculated to prevent, or at least to moderate, that reckless resort to the law which made it so odious and tyrannical in its effects. It did not trench upon any of the acknowledge principles of the law of malicious prosecution: it distinguished the case from those which came under that head of law, and simply held that one who is not, in fact, a creditor cannot lawfully institute proceedings in bankruptcy; and if he does so to the prejudice of the alleged bankrupt, he is responsible for the damages caused to him thereby.

In the rightful prosecution of their alleged claim, whatever injury they may have caused to Sonneborn, Stewart & Co. could well have pleaded probable cause of believing their claim to be just; and Sonneborn could not have recovered damages without showing malice as well as want of probable cause. But in instituting proceedings in bankruptcy, they must at least be in fact creditors, as a condition precedent of their right to do so. If they had been in fact creditors, then they would have been entitled to all the privileges awarded to a defendant in an ordinary action for malicious prosecution, whatever the result of the proceedings might have been.

Putting the matter into a summary form, the result of my views is briefly this:--

1st, That in criminal matters every person, being interested in the public order, has a right by law, upon probable cause, to make complaint against a supposed offender.

2d, That any person believing himself to have a claim against another, having probable cause for such belief, has a right, by law, to sue therefor, subject only, if his claim be adjudged false, to pay the costs of suit.

3d, That any creditor of another may institute proceedings in bankruptcy against his debtor, if he have probable cause to believe that his debtor has committed an act of bankruptcy; but a condition precedent to such right is, that he be, in fact, a creditor.

Counsel, on argument, and it seems to me the court, in its opinion, takes for granted in this case the contrary of the last proposition, without considering the question itself. Assuming that a petitioning creditor is not under any condition precedent to be, in fact, a creditor, then I would agree to all that is laid down in the opinion. But that is the very question, and the only important question, in the case.

The exception in regard to allowing counsel fees in the suit by way of damages was not founded in truth. The court below expressly confined the jury to three specific grounds of damage, and this was not one of them. Hence the request to charge on the subject was not relevant, and the court did no wrong to the defendants in refusing to so charge.

I think the judgment should be affirmed.

title: Stewart v. Sonneborn/Dissent Bradley


text: Talk:Stewart v. Sonneborn/Dissent Bradley

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


text:
Snyder v. Sickles

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

The facts are stated in the opinion of the court.

Mr. Montgomery Blair and Mr. Britton A. Hill for the plaintiffs in error.

Mr. Philip Phillips, Contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Snyder v. Sickles


text: Talk:Snyder v. Sickles

title: Talk:Snyder v. Sickles


text:
Snyder v. Sickles/Opinion of the Court

Titles to lands claimed by individuals in Louisiana at the time the province was ceded to the United States were in most cases incomplete, as the governor of the province never possessed the power to grant a patent. All he could do was to issue to the donee an instrument called a concession or order of survey, which never invested the party with a fee-simple title, from which it follows that the plaintiff in a suit to recover the land must prove that his claim had been confirmed under some act of Congress.

Complete title, os which there were a few when the jurisdiction of the province was transferred, required no such confirmation, as they needed no other protection than that afforded by the third article of the treaty of cession. 8 Stat. 202; United States v. Wiggins, 14 Pet. 350. Incomplete titles required confirmation, and Congress passed the act of the 2d of March, 1805, to 'ascertain and adjust titles and claims to land in the ceded territory.' 2 Stat. 326.

Prior to the passage of that act, however, the province ceded by the treaty had been divided into two organized territories, and the fifth section of the act, to ascertain and adjust titles and claims to land therein, provided for the appointment of commissioners in each of those territories, to ascertain and adjudicate the rights of persons presenting such claims. Id. 283.

Such commissioners were required by the act providing for their appointment to lay their decisions before Congress, but a subsequent act provided that the decision of the commissioners, when in favor of the claimant, should be final against the United States. Id. 441.

Forty arpens of land in front by forty arpens in depth are claimed by the plaintiffs, and they allege that the tract is bounded on the west by the survey made for Charles Gratiot, assignee of Louis Robert, and that the tract claimed was surveyed April 10, 1865, for John F. Perry, assignee of Angelica Chauvin, under the order of the Commissioner of the General Land-Office, as directed by the Secretary of the Interior.

Service was made; and the defendants appeared, and filed an answer denying that the plaintiffs are entitled to the possession of the premises described in the petition. Subsequently the parties went to trial before the circuit justice and a jury, and the verdict and judgment were in favor of the defendants. Exceptions were filed by the plaintiffs, and they sued out the present writ of error and removed the cause into this court.

Possession by the defendants being impliedly admitted, the principal question is whether the evidence introduced or offered by the plaintiffs was sufficient to prove their alleged title to the premises. Enough appears to show that John F. Perry was the assignee of the original donee of the tract under the former sovereign, and that he, Aug. 26, 1806, presented the concession for the same to the land commissioners for confirmation. From the concession, which bears date May 12, 1785, it appears that the acting governor conceded to the applicant forty arpens of land in front by forty arpens in depth, lengthwise the river called Des Peres, from north to south, bounded on one side by Louis Robert, and on the other by the royal domain. Evidence was introduced in support of the claim; but the board rejected it, for the alleged cause that it appeared from the records in their possession that the concession had been revoked, and that a new one had been issued to another party.

Five years later, the claim came up again before the land commissioners; and the record shows that the board confirmed the same to the assignee of the original donee for the whole amount of the claim, and entered an order that the same be surveyed conformable to his possession and at his expense. Pursuant to the requirement of the sixth section of the act, the commissioners also delivered to the party an instrument known as a confirmation certificate, stating the circumstances of the case, and that he is entitled to a patent for the tract of land therein designated, which certificate, the same section provides, shall be filed with the proper register or recorder within twelve months after date, and the record shows that it was duly issued and filed as required. Id. 441, sect. 6.

Beyond doubt, these proceedings were regular; but it is a great mistake to suppose that the confirmation certificate, without more, entitled the party to a patent. Instead of that, the next section of the act provides that the tracts of land thus granted by the commissioners, unless previously surveyed, shall be surveyed at the expense of the parties, under the direction of the surveyor-general or officer acting as such, and that the officer making the survey shall transmit general and particular plats of the tracts to the proper register or recorder, and shall also transmit copies of the said plats to the Secretary of the Treasury. Id. 442, sect. 7. When those acts have been performed, then the closing regulation of sect. 6 of the same act comes into operation, which makes it the duty of the register or recorder to 'issue a certificate in favor of the party, which certificate, being transmitted to the Secretary of the Treasury, shall entitle the party to a patent, to be issued in like manner as is provided by law for the issuing of patents for public lands lying in other territories.'

Certificates signed by the land commissioners were issued subsequent to the confirmation, but before the survey required to be made and transmitted to the register or recorder; but the patent certificate, so called, was required to be issued by the register or recorder, and could not lawfully be issued until the survey and plats had been made and duly transmitted to the register or recorder, as directed by the seventh section of the act.

Suffice it to say in that connection that no such subsisting survey or plat was ever made in this case, nor was any such ever transmitted to the register or recorder, nor did he register or recorder ever issue such a certificate to the party, nor is any thing of the kind pretended by the plaintiffs. They made no effort to prove any thing of the sort; but what they attempted to prove was that they had acquired a fee-simple title to the land by virtue of certain other proceedings under certain other acts of Congress, which, as they contend, dispenses with the necessity on their part of showing that they ever complied with the sixth and seventh sections of the act of Congress under which the claim in question was confirmed.

Argument to show that the plaintiffs had no sufficient title under the provisions of that act is unnecessary, as they admit that 'no previous survey had been made by Spanish, French, or American authority.'

Attempt was made by the plaintiffs to supply the omission and cure the defect in the instruments of title exhibited in the proceedings which followed the decree of confirmation and the issuing of the confirmation certificate, by the evidence, documentary and parol, offered at the trial before the court and jury. Besides the concession of the governor and the decree of confirmation already mentioned, the plaintiffs also offered in evidence to the jury the petition of the original donee, addressed to the governor, asking for the concession, and her deed conveying the same to her assignee, together with the petition of the assignee to the land commissioners praying for a confirmation of the tract to him as such assignee, which was followed, as before stated, by the decree of confirmation and the confirmation certificate. Appended to the decree of confirmation is the order that the tract be surveyed conformable to his possession, and they also offered in evidence the act obviating the necessity of issuing patents for certain private land-claims, and for other purposes. 18 Stat. 62.

Parol evidence was also offered by the plaintiffs tending to show that they held all the title confirmed to the assignee of the original donee; and in order to show that the land in question formed part of the land confirmed, they offered in evidence the concession to Louis Robert, by which the tract claimed by the plaintiffs is bounded on one side, and the survey of that tract by Antoine Soulard, Spanish surveyor-general of that part of the province before the cession, and also the concession to Charles Gratiot.

Seasonable objection to all this evidence was made by the defendants, and it was excluded from the jury by the court, and the plaintiffs excepted to the ruling.

During the trial the plaintiff introduced in evidence the letter of the Secretary of the Interior to the Commissioner of the General Land-Office, dated March 18, 1865, directing a second survey of the tract to be made whenever the plaintiffs may request, so that it is bounded on the one side by the land of Louis Robert, which is one of the distinctive calls in the grant. In the course of the letter the Secretary also remarked that attention should be given to calls upon the river Des Peres, as far as practicable, and added in the same connection, that if the claimant causes the survey to be made and the tract patented upon land not granted to the original donee, it will be his error and misfortune. They also offered in evidence the letter of the Commissioner of the General Land-Office, dated March 24, 1865, addressed to the recorder of land-titles at St. Louis, communicating those instructions; and that also was admitted in evidence without objection.

Those documents having been admitted, the plaintiff then offered in evidence the survey returned by William H. Cozzens, on the 10th of April, 1865, in conformity with those instructions, together with the letter of the Secretary of the Interior stating that the survey was made under the directions of the claimants, and that upon examination it is found that it does not conform to the calls of the grant required by the order of survey, and that the survey being upon land not granted, no effect will be given to it by the department. Due objection was made by the defendants to the admissibility of the evidence, and it was excluded by the court, and the plaintiffs excepted.

Failing in that, the plaintiffs then offered in evidence a survey of the tract made by the surveyor of St. Louis County, with oral testimony to show that the survey was identical with the one previously ruled out, and that the land confirmed to the assignee of the original donee was correctly located by that survey; all of which, on the objection of the defendants, was ruled out by the court, and the plaintiffs excepted to the ruling of the court.

Both parties resting, the court instructed the jury that the plaintiffs were not entitled to recover, and they excepted to the charge of the court.

Since the case was entered here, they have assigned for error the several rulings of the court excluding evidence which they offered to introduce at the trial, and the charge that the court gave to the jury that they were not entitled to recover.

Questions of difficulty remain to be examined and decided, in view of the exceptions, of which the following are the most important: 1. What would be the legal effect of the survey made under the supervision of the plaintiffs if it had never been disapproved by the Secretary of the Interior? 2. Was it competent for the Secretary of the Interior to disapprove the survey so made; and if so, to what extent did such disapproval affect the right or interest of the plaintiffs? 3. Irrespective of any survey, what is the legal operation of the concession as confirmed by the decree of the land commissioners? 4. Does it contain such metes and bounds that the Circuit Court can locate it without a survey and without the aid of parol evidence? 5. Suppose that question is determined in the negative, is it competent for the Circuit Court to admit parol evidence in an ejectment suit and submit the question of location in all its aspects to the determination of a jury? 6. Concede that there is no regular subsisting survey of the tract, what is the legal operation of the provision contained in the first section of the act obviating the necessity of issuing patents in the private land-claims included within that enactment? Id.

Remarks to show that the survey in question never was recognized or approved either by the commissioner or the Secretary of the Interior may well be omitted, as nothing of the kind appears in the record, and it is certain to a demonstration that no steps were ever taken by the Land Department to carry it into effect. Nor is it necessary to add much to what already appears to show that it does not conform to the calls of the concession, as that plainly appears by the comparison of the survey with the terms employed by the governor in making the concession. Nor is it any proper answer to that objection to say that the survey was authorized by the Secretary of the Interior, as it clearly appears that it was made in utter disregard of his directions, and that it covers land granted to other donees and which is not embraced in the concession granted to the assignor of the party who presented the claim for confirmation.

Surveys of such claims might at one time be made, if the party applied to have it done, under the direction of the proper officers of the government, the condition being that the applicant should pay the expense or secure the same to the satisfaction of the Secretary of the Interior before the work was performed. 12 id. 410.

By that act the proper executive officers, at the request of the owner of the claim, might cause it to be surveyed; but they could not pass upon the title, nor give the survey any greater effect than prima facie evidence of the true location of the land. Such a survey was made in this case under the direction of the Secretary of the Interior; but there is nothing in that act to compel the Secretary of the Interior to approve the survey if he deemed it erroneous, or to give it any effect whatever if he disapproved of it for good reasons. His reasons for disapproving it have already been referred to, and need not be repeated; nor is it necessary to enter into any discussion of the reasons assigned by the officer for rejecting the same, except to say that the reasons given are, in the judgment of the court, amply sufficient to sustain his action.

When first established, the land-office was made a bureau in the Department of the Treasury. 2 id. 716. By the act to reorganize the land-office, it is enacted that the executive duties appertaining to the surveys and sale of the public lands, &c., shall be subject to the supervision and control of the General Land-Office, under the direction of the President. 5 id. 107. Prior to the passage of that act, appeals were always allowed from the decision of the commissioner to the Secretary of the Treasury, as the head of the Treasury Department.

Sect. 2 of the act establishing the Interior Department provides that the Secretary of the Interior shall perform all the duties of supervision and appeal in relation to the land-office heretofore discharged by the Secretary of the Treasury. 9 id. 395.

Assume that the power of such supervision and appeal was vested in the Secretary of the Treasury prior to the passage of that act, and it would follow beyond controversy that the same power is now possessed by the Secretary of the Interior; but the suggestion in that regard is, that the act reorganizing the land-office left the Secretary of the Treasury no such power.

Duties of the kind, it must be admitted, were rightfully performed by the Secretary of the Treasury prior to the reorganization of the land-office, as the original act creating that bureau established the office in the Department of the Treasury, and placed the commissioner under the direction of the head of that department; nor does the latter act reorganizing the office make any substantial change in that regard, as the President still acted, as before, in matters belonging to the departments, through their respective heads, which in legal contemplation and practical effect gave the Secretary of the Treasury the same supervision over the doings of the commissioner as under the prior act establishing the land-office. Patterson v. Tatum, 3 Sawyer, 164. Documentary history, however, shows that the President, when the act reorganizing the land-office was presented to him for approval, entertained doubts whether the Secretary of the Treasury, if it became a law and went into operation, would be authorized to exercise the accustomed supervision over the official acts of the commissioner in respect to the public lands, and that he deemed the matter of sufficient importance to ask the opinion of the Attorney-General upon the subject.

Prompt response to the request of the President was given by the Attorney-General, and in the course of his reply he adverted to the fact that the act creating the land-office made it a branch of the treasury, and he expressed the opinion in very decided terms that the commissioner, under the new law, would still be, as before, subject to the general superintendence of the President, acting through the head of the Treasury Department. 3 Op. Att'y-Gen. 137. But he suggested as a measure of precaution, that the President should, before approving the act, direct the Secretary of the Treasury that he should continue under its provisions to exercise the same supervisory power as theretofore over the business of the general land-office, which suggestion, it appears, was adopted by the President, and that the President issued such an order, bearing even date with his approval of that act. 2 Laws, Instructions, and Opinions, 104. See also the opinion of President Buchanan, 1 Lester, Land Laws, 681.

Throughout the entire period from the approval of that act to the passage of the act creating the Department of the Interior, the Secretary of the Treasury was accustomed to exercise that power, without question or challenge.

Viewed in the light of these suggestions, it is clear that the power since the passage of the last-named act is vested in the Secretary of the Interior. Conclusive support to that proposition is also found in two decisions of this court, where the precise points is distinctly ruled. Magwire v. Tyler, 1 Black, 195; s. c. 8 Wall. 661.

Four points were decided in the first case, as follows: 1. That surveys under such confirmations are, in regard to their correctness, within the jurisdiction of the commissioner, and that that officer has power to adjudge the question of accuracy preliminary to the issuing of a patent. 2. That the Secretary of the Interior has the power of supervision and appeal in all matters relating to the General Land-Office, and that that power is coextensive with the authority of the commissioner to adjudge. 3. That the Secretary, in the exercise of his supervisory powers, may lawfully set aside a survey made under a confirmed Spanish grant, and may order another to be made, and issue a patent upon it. 4. That where the construction of the acts of Congress defining the powers of the Secretary of the Interior is drawn in question in a State court, and the decision is against the title supported by the decision of the Secretary, this court has jurisdiction to revise the case.

Corresponding rules are adjudged to be correct in the second case, as appears from the following propositions:--

1. That the judicial tribunals, in the ordinary administration of justice, have no jurisdiction or power to deal with these incipient indefinite claims without survey or specific boundaries, either as to survey or fixing boundaries, but that such titles, until an authorized survey is made, attach to no land, nor can a court of justice ascertain its location or boundaries, as that power is reserved to the Executive Department. Landes v. Brant, 10 How. 370; West v. Cochran, 17 id. 414.

2. That tracts of land previously surveyed or confirmed according to the specific boundaries set forth in the concession need no further location, as the legal effect of the confirmation is to establish the right of the donee to the designated tract.

Cases of the kind, it was there admitted, do sometimes arise; but the court held that where the claim has no certain limits, and the decree of confirmation carries along with it the condition that the land must be surveyed and severed from the public domain and the concessions of other parties, then in all such cases the title of the party attaches to no particular tract, and that the courts of justice have no power or authority in law to establish the boundaries or locate the concession, the rule being that that power is reserved to the appointed executive officers. Stanford v. Taylor, 18 id. 409; Bissell v. Penrose, 8 id. 334.

3. That the power to revise surveys of such claims was vested in the first instance in the commissioner, subject to appeal, under the act creating the Department of the Interior, to the secretary of that department, who might lawfully set aside such a survey; and that the concession, when the survey was set aside by the secretary, remained before the court as it existed when confirmed without survey by the land commissioners. 9 Stat. 395.

Even a few observations will be sufficient to show what the legal effect of the concession as confirmed was, without a survey to locate the tract and define its boundaries. Commissioners to adjudicate such titles were duly appointed, and they were required, under the sixth section of the act, to transmit to the Secretary of the Treasury and to the surveyor-general of the district where the land lay, transcripts of their final decisions made in favor of each claimant, and also to deliver to the claimant the confirmation certificate, stating the circumstances of the case, and that he was entitled to a patent for the designated tract; and the further requirement was that the certificate should be filed with the recorder if the land lay in the district of Louisiana, and with the register of the land-office when the land lay in the Orleans territory.

In all cases where the tract of land confirmed by the land commissioners had not been previously surveyed, the seventh section of the act declared that the same should be surveyed under the direction of the surveyor-general, and that he should transmit general and particular plats of the tracts that were surveyed to the proper register or recorder, and also transmit copies of the same to the Secretary of the Treasury; the further enactment being that, when the confirmation certificates and plats were filed with the register or recorder, he should thereupon issue a patent certificate in favor of the claimant, which, when transmitted to the Secretary of the Treasury, entitled the party to a patent in like manner as patents are issued for lands acquired in other lawful ways. West v. Cochran, supra.

Survey was made in this case, as before explained; but it was disapproved by the Secretary of the Interior, and became a nullity, and of course the patent certificate could not be issued, and the rights of the claimant were never advanced beyond what he acquired by the concession, the confirmation by the land commissioners, and their certificate of confirmation.

Cases arise where the specific boundaries of the tract are set forth in the concession given to the original donee by the foreign government, in which cases it is well settled, as conceded in the authorities already cited, that the decree of confirmation locates the tract without any necessity for a subsequent survey. Alviso v. United States, 8 Wall. 339; Higueras v. United States, 5 id. 827; Bissell v. Penrose, 8 How. 341.

Nothing of the kind, however, of any practical importance, is exhibited in the record before the court, nor is it necessary to enter into any extended discussion of the question, as it has already been expressly decided by this court, in a controversy founded upon the same concession. Stanford v. Taylor, supra. Stanford sued the defendant in ejectment, claiming title from the confirmee to the land in dispute under a concession granted by the governor to Angelica Chauvin, the tract consisting of forty arpens in front by forty arpens in depth along the river Des Peres from north to south, bounded on one side by the land of Louis Robert, and on the other by the royal domain. Due confirmation was shown, as in this case, and that the commissioners ordered in the decree that the land should be surveyed conformable to the possession by virtue of the concession. Survey was made, and the tract located west of the location of Louis Robert and on both sides of the river Des Peres, which location, as the plaintiff contended, was erroneous. What he insisted was that the location should have been made east of the tract of Louis Robert, and that that proposition was so plain on the face of the concession, that no survey was necessary to determine the matter, and he offered parol proof to prove his theory, but the court of original jurisdiction rejected the proof offered, and this court affirmed the judgment.

Three of the matters decided by the court in that case deserve to be noticed: 1. That when there is a specific tract of land confirmed according to ascertained boundaries, the title of the confirmee is complete. 2. That where the claim has no certain limits, the title attaches to no particular land, nor can a court of justice establish the boundaries. 3. That the uncertainty of the intended location and of the outboundary in the case is too manifest to require discussion to show that a public survey is required to attach the concession to any land.

Indefinite and vague as the terms of the concession are, not a doubt is entertained that the court decided correctly in that case; and it is only necessary to add in this connection that the court here now adopts that conclusion, and the reasons given in its support.

Concede that, and no further argument is necessary to show that it is not competent for the Circuit Court in such a case to admit parol proof to establish the boundaries of such a concession, the rule being established by repeated decisions that the concession in such case being indefinite, uncertain, and vague, attaches to no particular tract, and that it must be surveyed and located as required by the seventh section of the act under which it was confirmed, before the party can be entitled to a patent. Stanford v. Taylor, supra; Maguire v. Tyler, 8 Wall. 661.

Authority to appoint a surveyor of lands in that territory was conferred by Congress, and it was made his duty to cause to be surveyed the lands in the territory which have been or may be hereafter confirmed, under the conditions therein provided. 3 Stat. 325.

Both parties opposed the survey in the case of Stanford v. Taylor (supra); and the court having instructed the jury that it did not include the land in controversy, directed the jury to return a verdict for the defendant. Neither party claims that that survey is of any validity; and the second survey having been disapproved by the Secretary of the Interior, it is clear to a demonstration that the concession in question is without any subsisting valid survey, and remains where it stood at the date of confirmation, having never been advanced to the condition where the owner of the same could claim either a patent or patent certificate under the confirmation act. 2 Stat. 441.

Grant that, and still the inquiry arises, what is the legal effect of the more recent act dispensing with the necessity of issuing patents in the cases to which it applies? 18 id. 62.

Taken alone, the first section grants, releases, and relinquishes to confirmees all of the right, title, and interest of the United States in such confirmed lands, as fully and completely as could be done by patents; but the second section of the same act provides that nothing contained in the first section shall abridge, divest, impair, injure, or prejudice any valid right, title, or interest of any person or persons in any part of the lands mentioned in the first section. Both sections must be construed together; and when so construed, the court is of the opinion that it dispenses with the necessity of issuing patents for such lands in all cases where the party interested is by law entitled to a patent, and in no other cases.

Patents, therefore, are not required where the concession was made by specific boundaries, nor where the specific boundaries of the tract confirmed are specifically set forth in the decree of confirmation, or where the tract had been previously surveyed, as required by the decree of confirmation and the seventh section of the act providing for such confirmation.

Ample scope for the operation of the act in question is found in the several classes of cases mentioned, without extending its operation to cases where no right to a patent had been acquired and which could not in that manner be conferred, without holding that it repeals the standard land laws of the country, nor without doing great injustice to claimants by introducing confusion and uncertainty into the administration of the Land Department.

Nor is there a word in the act, when the two sections are construed together, to support the theory of the plaintiffs. Instead of that, the adoption of their theory would operate as a virtual repeal of the second section, which was doubtless inserted to guard against any such consequences as would flow from the act, if the theory of the plaintiffs should receive judicial sanction.

Constant pressure of business in the land-office occasioned great delays in issuing patents, even in cases where the applicant held regular patent certificates, as well as in cases where the muniment of title granted by the former government gave the boundaries of the concession, or where the proper location and description of the tract was made certain by the decree of confirmation; and it was to remedy that grievance that the act under consideration was passed, for the purpose of dispensing with the necessity of issuing patents in certain cases.

Persons entitled to patents may, under that act, possess and enjoy their right to the land by virtue of the act without a patent; but the act does not dispense with a survey, made necessary by the act under which the confirmation was decreed, in order to entitle the party to a patent. Nor does it repeal the seventh section of the prior act which creates that necessity. Nor would it ultimately benefit the plaintiffs if the act dispensing with the issuing of patents could be construed, as they contend it should be, unless it could be held to supply monuments or boundaries where they are not given in the foreign concession, as the difficulty would still remain that the description of the tract as given in the concession is too vague, indefinite, and uncertain, to afford the means of location without an authentic survey.

Even construed as they would have the act, still the fact would remain, that the only guide for its identity is the description given in the concession, which is, that it is forty arpens of land in front by forty in depth, lengthwise the river Des Peres from north to south, bounded on one side by the land of Louis Robert and on the other by the royal domain. Nothing definite is stated to show where any of the lines begin or end. As given, one boundary is by Louis Robert, but it is not stated on which side, nor is any point of beginning given to enable the court to determine where it bounds on the royal domain; nor is any thing set forth in the description to enable the court to determine where it begins or ends on the river, except what may be inferred from the phrase 'from north to south.'

Sufficient appears to show that the tract cannot be located without a survey or without the aid of extrinsic proof, which certainly cannot be admitted while the act of Congress requiring the survey remains in full force. These difficulties in the way of the plaintiffs are insuperable; nor would a patent remove them without a survey, as the concession would still be vague, indefinite, and uncertain, and incapable of location until the party in some way should procure an authentic survey.

Such a survey being necessary to the location of the claim, and the antecedent surveys having been rejected, the question will doubtless arise whether a new one may or may not be ordered, which is not determined by the present opinion, and which it is the intention of the court to leave entirely open.

For these reasons, the court is of the opinion that there is no error in the record.

Judgment affirmed.

title: Snyder v. Sickles/Opinion of the Court


text: Talk:Snyder v. Sickles/Opinion of the Court


text:
Elcox v. Hill

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

This is an action of trespass on the case by Elcox and Larter against Hill, proprietor of a public hotel in the city of Chicago, to recover the value of a quantity of jewelry lost by them while Larter was a guest at the hotel.

The plaintiffs were manufacturing jewellers, doing business at Newark, N. J. Larter left home for a tour through several Western cities, with some $6,300 worth of jewelry, which was contained in two travelling-bags or satchels, like those usually carried by travellers: one a large leather bag, containing about $5,300 worth of solid gold jewelry, and the other a small satchel, containing about $1,000 worth of jewelry. The smaller bag was not locked and had no key.

On arriving at the hotel, Sunday morning, March 9, 1873, he registered his name and asked for a room, but one could not be assigned to him for some three or four hours. During the time he was waiting he placed his travelling-bags in the coat-room and received a check therefor. Between twelve and two o'clock, a room was assigned to him on the upper floor of the house, and his baggage, consisting of the two bags, was taken from the coat-room and carried up to the room, where he remained for some time and then came down to dinner. Before going into the dining-room, he gave the key of his room to the bell-boy, who had conducted him to the room and carried the bags, and directed him to go up and bring them down and put them in the coat-room again; and on coming out from dinner he received from the boy the coat-room check for them. He saw them in the coat-room two or three times after that before he went to bed, the last time being about ten o'clock at night, at which time William Drum, the boy then in charge of the coat-room, as Larter said, voluntarily told him that they were perfectly safe, and that the coat-room would be locked up at twelve o'clock. Soon after this, Larter went to his room for the night, and after breakfast in the morning called at the coat-room for his satchels. The small one only could be found, and from that the jewelry had been stolen. He had previously given no information of the contents of the bags, nor had he asked to have them placed in the safe.

At the top of the page of the register, where he wrote his name on entering the hotel, were printed these words:--

'Money, jewels, and valuable property must be placed in the safe in the office, otherwise the proprietor will not be responsible for any loss.'

On the door of the room assigned to him, and on the door of every other room, was a printed notice, containing among other things the following:--

'9. All guests of the house are cautioned against leaving money, jewels, or valuables of any description in their rooms, as the proprietor will not be responsible for them if stolen. Money or valuables, properly labelled, must be deposited in the safe at the office.'

And also a copy of the statute of the State of Illinois, entitled 'An Act for the protection of innkeepers,' which is as follows:--

'SECT. 1. Be it enacted by the people of the State of Illinois represented in the General Assembly, that hereafter every landlord or keeper of a public inn or hotel in this State, who shall constantly have in his inn or hotel an iron safe in good order and suitable for the custody of money, jewelry, and other valuable articles belonging to his guests or customers, shall keep posted up conspicuously at the office, also on the inside of every entrance-door of every public, sleeping, bar, reading, sitting, and parlor room of his inn or hotel, notice to his guests and customers that they must leave their money, jewelry, and other valuables with the landlord, his agent or clerk, for safe keeping, that he may make safe deposit of the same in the place provided for that purpose.

'SECT. 2. That such landlord, hotel or inn keeper as shall comply with the requirements of the first section of this act shall not be liable for any money, jewelry, or other valuables of gold, or silver, or rare precious stones that may be lost if the same is not delivered to said landlord, hotel or inn keeper, his agent or clerk, for deposit, unless such loss shall occur by the hand or through the negligence of the landlord, or by a clerk or servant employed by him in such hotel or inn: Provided, that nothing herein contained shall apply to such amount of money and valuables as is usual, common, and prudent for any such guest to retain in his room or about his person.'

For the purpose of sefely keeping the valuables and jewelry of guests, the proprietor had a very large vault built in the hotel, which was in plain sight, back of the counter, in the office, immediately in front of Larter when he wrote his name upon the register.

The coat-room in the hotel was only intended for the reception of ordinary hand-valises, coats, and umbrellas, and not for valuables or jewelry: the place for valuables and jewelry was in the safe or vault.

At the trial, the plaintiffs offered to prove by two witnesses the admission to them by the boy William Drum that he had stolen the jewelry, but on the objection of the defendant the evidence was excluded.

The court having charged the jury that the notice (paragraph 9, supra) was a sufficient compliance with the statute, further instructed them as follows:--

'If the defendant has made out to your satisfaction from the proof that he did comply with this law by providing a safe, and posting notices as required, then the plaintiffs, in order to hold him liable on the ground that the loss comes within the exceptions of the statute, must satisfy you it did in fact occur by the hand of one of the defendant's servants employed in the hotel. The mere suspicion that Drum took the goods, or suspicious circumstances, are not enough. The evidence should be such as to reasonably satisfy your minds that the goods were so lost by the fault or hand of this servant. The burden of proof on this point is with the plaintiffs; and the failure or negligence of the defendant to prosecute Drum on a criminal charge for stealing this property does not tend to show that the boy was guilty, or that the loss occurred through his act. The defendant was no more bound to prosecute this boy for this criminal offence than any other citizen. It was a violation of the general criminal law of the land if the boy was guilty; and any citizen was as much bound to see that he was criminally prosecuted as was the defendant.

'I come now to consider the last point made by the defendant, and that is, that the goods in question were lost by reason of the want of due care on the part of Larter. Negligence is usually, in cases like this, wholly a question of fact for the jury. Negligence is a relative term; that is, what is or is not negligence depends upon circumstances, and you must determine, from all the circumstances surrounding the transaction as disclosed in the proof, whether Larter's negligence contributed directly to this loss or not. Every man is bound to act with such prudence and care as it is presumed would be taken by an ordinarily careful and prudent man under similar circumstances; and a failure to so act is what is called negligence.

'It is obvious that the degree of care with which a man is bound to act must depend largely upon the degree of responsibility with which he is charged. For instance, a man who is the custodian of several thousand dollars should be expected to be much more prudent and circumspect in his conduct than one with a very small sum of money; and what might be called gross negligence in a man with valuable jewelry or a large sum of money under his charge, might not be deemed negligence at all in a man with but little money and no jewelry or valuables in his charge.

'The admitted facts in this case are that Larter placed these two bags containing this large quantity of valuable jewelry first in the coat-room, then took them to his room with the aid of the bell-boy, then left them in his room and sent the bellboy after them, with directions to place them in the coat-room. Then, by frequent looks and inquiries in regard to his bags, which he admits making, he may have betrayed such solicitude for their safety as called attention to them unnecessarily. One of these bags contained over $5,000 worth of jewelry, and must necessarily have betrayed its contents, and to some extent its value, by its weight. The conversation with this boy late in the evening, and the acceptance of his voluntary assurances that the bags were perfectly safe where they were, are all circumstances bearing upon the question of negligence, and to be considered, and it is for you to say whether a person of ordinary prudence, with so responsible a trust, would have so conducted himself.

'Travellers must be presumed to know the relative duties of the different classes of employees about a hotel, that is to say, that they have no right to intrust their baggage to the care of the table-waiter, or to the hostler, from the fact that it is not the duty of such employees to look after or care for the baggage, or take the custody of it; and it is for you to say whether the leaving of this baggage by Larter in this coat-room was not of itself an act of negligence, especially when he failed to inform any one of its contents. If he had said to the landlord or the clerk in charge of the office, 'My satchel is in that coat-room, it contains valuable jewelry;' and if the landlord or clerk had left it there after such information, they might be held to have assented to accept it there, and to have left it themselves in the charge of the servant in care of the coat-room; but it is a question for you to consider whether it was not such negligence as might amount to a fraud on the defendant for Larter to leave this valuable property in such a place, without informing the defendant or his proper clerk in the office of its value, so that they might govern themselves accordingly.

'As I said before, negligence is a relative or comparative term. Probably, if a guest at a hotel should deposit his money or jewelry with a table-waiter, or cook, or bell-boy, without direction to do so from the landlord or clerk in charge, or leave his satchel containing money and valuables unprotected in the halls or public passages, or leave his money exposed in his room, and his room unlocked,-no one would hesitate to say that such an act was an act of negligence to such an extent as to excuse the landlord in case of loss. And it is for you to say in the light of the proof, and of your own knowledge and experience of the manner in which large city hotels are necessarily conducted, whether trusting valuable packages, such as jewelry like this of the plaintiff, to the care of the coat-room boy was or was not an act of negligence for which the party should suffer the consequences rather than the landlord.

'It is true, as has been urged by counsel, that the innkeeper is responsible for the acts of his servant; but that does not justify a guest at a hotel in intrusting valuable merchandise to the care of a subordinate servant, whose line of duty was not the charge or keeping of such valuables without the knowledge of the landlord, or of his clerk in charge.

'The evidence has disclosed to you to some extent the duties of the servants or employees of the hotel in charge of the coat-room; and it is for you to say in the light of the evidence whether a prudent man would have intrusted to such a servant and such a place the keeping of valuable packages like these lost by Larter, without at least first making inquiries to ascertain whether any more secure place of deposit could be provided.

'In conclusion, then, if you are satisfied from the proof that the loss in this case occurred through the want of due care on the part of Larter, under the circumstances, then the defendant is not liable, even if you should believe from the proof that the loss occurred by the fraud or the act of the boy Drum. And if you find from the evidence that the goods in question were not travellers' baggage, but merchandise, and intended for such by the plaintiffs, then the defendant is not liable, unless the defendant, or some one in his employ whose duty it was to attend to such matters, was informed of the contents of the bags, and accepted in some form the custody of them.

'As has been said and urged on the part of the plaintiffs, the loss of the goods makes a prima facie case of liability, and you must determine whether the defendant has relieved himself therefrom by showing negligence on the part of Larter.'

To all of which charge and instruction the plaintiffs excepted.

There was a verdict and judgment for the defendant, whereupon the plaintiffs sued out this writ of error.

Mr. Melville W. Fuller for the plaintiffs in error.

Mr. Robert Hervey, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Elcox v. Hill


text: Talk:Elcox v. Hill

title: Talk:Elcox v. Hill


text:
Elcox v. Hill/Opinion of the Court

There can be but little doubt that the goods of the plaintiffs were stolen from them while one of them was at the hotel of the defendant, in the city of Chicago. They insist thereupon that their loss shall be made good; but it does not follow, because they met with a loss, that they can recover the amount from him.

The defendant contends that he is exempt from liability for money, jewels, and the like, unless his guest who lost them complied with the statute of Illinois on that subject. Where a safe for the keeping of such articles is provided by the hotelkeeper, and the notice given as required by the statute, a loser failing to take the benefit of the protection thus furnished him must bear his own loss. Hyatt v. Taylor, 42 N. Y. 258; Stewart v. Parsons, 24 Wis. 241.

To this rule the statute makes one exception. If the loss occurs 'by the hand or through the negligence of the landlord, or by a clerk or servant employed by him in such hotel or inn,' the liability remains. The judge submitted that question to the jury, who found against the plaintiffs.

It is settled by the authorities that where the loss is occasioned by the personal negligence of the guest himself, the liability of the innkeeper does not exist. Purvis v. Coleman & Stetson, 21 N. Y. 111; Cook v. The Champlain Transportation Co., 1 Den. (N. Y.) 91.

The question of personal negligence was properly submitted to the jury, and was also found against the plaintiffs.

The court refused to receive evidence that William Drum had admitted that he had stolen the jewelry in question. If he was guilty of the offence, the fact should have been established by due proof. If he were on trial himself, his admission would be competent, but upon no principle could he admit away the rights of another person.

Judgment affirmed.

title: Elcox v. Hill/Opinion of the Court


text: Talk:Elcox v. Hill/Opinion of the Court

title: Talk:Elcox v. Hill/Opinion of the Court


text:
Andreae v. Redfield

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

The facts are stated in the opinion of the court.

Mr. Robert G. Ingersoll and Mr. A. W. Griswold for the appellant.

Mr. Assistant Attorney-General Smith, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Andreae v. Redfield


text: Talk:Andreae v. Redfield

title: Talk:Andreae v. Redfield


text:
Andreae v. Redfield/Opinion of the Court

Customs duties, illegally exacted, may be recovered back by an action in the Circuit Court against the collector for money had and received, provided the payment was made under protest, in writing, signed by the party, as required by the act of Congress applicable to the case. 5 Stat. 727; 13 id. 214; The Assessors v. Osborn, 9 Wall. 567.

Circuit Courts under existing laws have not jurisdiction of suits to recover back moneys illegally exacted for internalrevenue duties, unless the parties are citizens of different States, or the suit is removed into the Circuit Court from a State court. Hornthal v. The Collector, 9 id. 560.

None of the acts of Congress, however, which exclude the jurisdiction of the circuit courts in these cases have any application where the suit is brought to recover back duties of customs illegally exacted, if the payment was made under protest, as required by law. Rev. Stat., sects. 2931-3011.

Goods to a large amount were imported by the complainants, or by the several firms to which they belong; and they allege that the goods were subject to duty in proportion to the actual market value of the articles at the principal market of the country from which the same were imported, and that the collector, in order to ascertain the dutiable value of the merchandise, erroneously added to the said market value, or compelled the owner or consignee to add to the same, certain charges for the expenses of transportation from the market where purchased, to the place of shipment, together with two and a half per cent commissions on such charges, and that he unlawfully computed the duty upon such erroneous and excessive valuation.

Importations of the kind, it is admitted, were subject to duty; but the complaint is that the duties as ascertained and liquidated were excessive, and that the complainants, in order to obtain possession of the goods, were obliged to pay the excessive amount charged; and they aver that they paid the same under protest, as provided by law.

Sixty importations of the kind were made by the complainants, and seven years after the respondent went out of office they commenced suits to recover back the excess of duty illegally exacted in each of the sixty cases.

Service was made; and the respondent, in November, 1866, appeared and pleaded, among other defences, the Statute of Limitations. Four replications were filed by the plaintiffs to the plea, to which demurrers were interposed by the defendant. Hearing was had; and the court sustained the demurrers to the third and fourth replications, and overruled the demurrers to the first and second. Issuable matters being set forth in the first and second replications, the plaintiffs filed rejoinders to those tendering issues; and in April, 1872, the issues were joined, and the cases have since been ready for trial. Continuances from term to term followed, and on the 11th of March, 1874, the present bill of complaint was filed by the plaintiffs in those several actions, all joining as complainants. All of the actions at law are still pending, and the only relief sought by the bill of complaint is an injunction to restrain the respondent 'from prosecuting or maintaining upon the trial of any of the said sixty actions his plea of the Statute of Limitations, and from claiming and insisting in said trials' that the said actions or any of them are barred by the said Statute of Limitations.

Two objections are taken to the action of the collector: 1. That in ascertaining the dutiable value of the goods he improperly included the expense of transportation from the principal market of the country where purchased, to the place of shipment; 2. That he also erroneously included in such dutiable value a higher rate of commissions than is authorized by the revenue law.

Various matters are set forth in the bill of complaint as causes that entitle the complainants to the relief sought, which, in brief, may be described as follows: 1. That the complainants respectively have a just and legal claim to recover back the excess of duties which they paid under protest, and which were illegally exacted by the respondent. 2. That the Statute of Limitations at the time hereafter mentioned was about to take effect as a bar to the causes of action embraced in the said several suits. 3. That an officer in the custom-house where the goods were entered stated to the attorney of the importers that, by the rules and practice of the Treasury Department, the presentation of their respective claims to the auditor or to the refund clerk of the custom-house would prevent the running of the Statute of Limitations, and that the statute, if the claims were so presented, could not and would not be interposed as a defence, in case suits should subsequently be commenced to recover back such excess of duties. 4. That the respondent, as such collector, though he disclaimed any control in the matter, declared his confidence in the knowledge and experience of the officer who made that statement, and expressed to the said attorney his concurrence in the said opinion and statement. 5. That the complainants did present their respective claims to the auditor or refund clerk of the custom-house, as suggested, and that relying upon the prior action of the Secretary of the Treasury in recognizing claims of a like nature, and upon the said statements and opinion of the officer of the custom-house, and the concurrence of the respondent therein, they respectively refrained from bringing actions to recover back such excess of duties so illegally exacted until the Statute of Limitations had run against all of their claims.

Preliminary to those allegations in the bill of complaint, it is also alleged that actions of a like kind to recover back such illegal exactions were previously commenced and prosecuted in two other districts, in which it was decided and adjudged that the charges for transportation and commissions on the same were illegal, and that the Secretary of the Treasury paid back the excess in those cases; and they also allege that orders were issued by that officer to the respondent and to his successor in office to prepare statements showing the amount of such excess, and to transmit the same to the department for consideration.

Due appearance was entered by the respondent, and he demurred to the bill of complaint. Certain interlocutory proceedings followed, which it is not important to notice in this investigation. Suffice it to say, in this connection, that the parties having been fully heard, the court entered a decree dismissing the bill of complaint, and the complainants appealed to this court. Since the appeal was entered here, the complainants assign for error the ruling of the circuit judge sustaining the demurrers of the respondent, and the decree of the court dismissing the bill of complaint.

Discussion to show that the several importers had a good cause of action, irrespective of the Statute of Limitations, is unnecessary, as that proposition is admitted by the demurrer; but it is equally clear that that admission, without more, will not avail the complainants in the present controversy, as it is obvious that they had a plain, adequate, and complete remedy at law.

Excessive customs duties illegally exacted may be recovered back in an action of assumpsit for money had and received, if due protest in writing is made by the party aggrieved, at or before the payment of the duties, setting forth distinctly and specifically the grounds of objection to the required payment. 5 Stat. 727.

Suppose that is so, still it is insisted by the complainants that they were wrongfully induced by the public authorities to delay the enforcement of their legal claims until their respective causes of action became barred by the Statute of Limitations; and attempt is made in argument to support that proposition by each and every of the grounds specifically set forth in the bill of complaint.

1. That the circuit courts in two instances decided and adjudged that the exaction of such duties was illegal, and that the Secretary of the Treasury repaid the same in accordance with the judgments.

2. That the Secretary of the Treasury submitted to the rule established in those cases, and was willing to apply it to the claims of the importers in these cases, when the claims were duly adjusted and presented in the manner required by the regulations of the department.

3. That the Secretary of the Treasury issued an order to the collector to ascertain the amount of such excess of duty, and to transmit the account when prepared to the department, together with a statement of the excess charged for commissions on the same importations.

4. Orders, it is also alleged, were adopted by the Treasury Department which show that the importers in such cases were entitled to the excess of duties illegally exacted as soon as the importers could furnish to the auditor or refund clerk detailed statements of the previous importations, and the names of the vessels in which they were made, and the dates of their arrival in the port, such statements being required in order to enable the auditor of the custom-house or refund clerk to prepare certified copies of the same to be forwarded to the department, pursuant to the instructions of the Secretary of the Treasury.

Labor, care, and attention were required to comply with that requirement; and the complainants allege that whatever devolved upon them in the matter was seasonably accomplished, but they admit that the certified statements to be forwarded to the department were not completed by the auditor or refund clerk when the respondent, as collector, went out of office.

Culpable remissness of duty is not charged upon the auditor or refund clerk, during the period while the collector who liquidated the duties remained in office as collector of the port. Nothing of the kind is alleged, but the charge is that his successor refused to allow the process of adjusting the claims of the complainants to be continued; that they complained of the delay and the refusal of the successor, and that the Secretary of the Treasury issued an order to the new collector, requesting that the instructions upon the subject given to his predecessor should be complied with at his earliest convenience; and it is alleged that such an order was given, as shown by the exhibit annexed to the bill of complaint, but it is admitted that the claims of the complainants were never reported in pursuance of the orders of the Secretary of the Treasury.

Considerable progress was made in preparing the necessary statements; and the complainants allege that it was during that period that their attorney suggested to the auditor of the custom-house that the claims would soon be barred by the Statute of Limitations, and made inquiry of him whether it would not be necessary to commence suits to prevent the bar from attaching,-to which the auditor replied, that instructions having been given by the department to refund the money, it was not the fault of the department that it had not been done; that all the complainants had to do to prevent the Statute of Limitations from running was to present their claims to the refund clerk for adjustment, as required by the rules and practice of the Treasury Department.

Subsequent conversations were also had by their attorney with the auditor of the custom-house, of like import and to the same effect; and the complainants also allege that the respondent, in a conversation with their attorney, remarked that the auditor was very familiar with the practice of the department, and that he, the attorney, could rely upon the auditor's statements, and added, that he could see no necessity for commencing suits in the cases, as if the complainants would present their claims for adjustment the statute would cease to run from that time, and would not be interposed as a defence to the claims.

Many other excusatory allegations of a corresponding import are set forth in the bill of complaint; and the complainants allege that, relying upon those matters, and for the purpose of avoiding a multiplicity of suits, they refrained from bringing the actions, in full faith and confidence that the Statute of Limitations would not be set up as a defence to any actions which should thereafter be brought to enforce their claims.

Afterwards the same attorney, as the complainants allege, sought an interview with the Secretary of the Treasury, and brought to his notice the representations of the auditor of the custom-house and the respondent in respect to the Statute of Limitations, and inquired of him whether the complainants could rely upon the representations and statements that suits need not be commenced to prevent the Statute of Limitations from running, provided they presented their claims for adjustment in proper time. Before replying to the inquiry, the allegation is that the Secretary of the Treasury consulted with the clerk in charge, and the complainants allege that his reply was that such had been the practice for many years, and that latterly it had become even more liberal, referring to the fact that where a favorable decision was obtained in one case the same rule was applied in others of the same class.

Claims of the kind in great numbers were in the mean time, as the complainants allege, adjusted and paid to the claimants, and they also allege that on the 10th of May, 1864, sixty of their claims remained unadjusted and unpaid, for which they brought the several suits described in the bill of complaint. Process being issued and served, the respondent appeared and pleaded non assumpsit, payment, and the Statute of Limitations. Replications, as before explained, were filed, and demurrers interposed and disposed of in the manner heretofore stated, leaving issues for the jury under the first two of the replications.

Viewed in the light of these several suggestions, it is clear that the several claims of the complainants were never prepared and presented, as required, to the Secretary of the Treasury for adjustment and allowance; but the complainants allege that they were induced to delay such preparation and presentation by the recited official representations and others of like import, and they pray for an injunction restraining the respondent from setting up the bar of the Statute of Limitations in defence of the several actions to recover back the moneys which the respondent, as collector, illegally exacted of them as such importers.

Importers in such cases may make payment under protest, and bring an action of assumpsit for money had and received against the collector to recover back whatever amount was illegally exacted. Preventive remedies are not authorized by the acts of Congress, nor have they ever been since the revenue system of the United States was organized. Instead of that, the act of Congress now in force provides as follows: 'And no suit for the purpose of restraining the assessment and collection of a tax shall be maintained in any court.' 14 Stat. 475.

Appropriate remedy is given in such cases by action against the collector, and provision is made in case the importer recovers, that no execution shall issue against the collector if the court certifies that he had probable cause for his action, or in case it appears that he acted under directions of the Secretary of the Treasury, or other proper officer of the government, the regulation being that the amount recovered shall in that event be paid out of appropriations made for the purpose. 12 id. 741; Rev. Stat., sect. 989.

Merchants importing goods find ample remedy under the provisions mentioned for illegal exactions made by collectors, and the better opinion is that it is the only judicial remedy authorized by Congress for the redress of such grievances. Beyond all doubt, the remedy the importing merchant has in such a controversy is against the collector; and in case of recovery he is entitled to an execution against the defendant in the action, unless the court shall certify that the collector had probable cause for his action, or it appears that he acted under directions from the proper official source. Directions of the kind are doubtless frequently given; and in such cases it may well be contended that the suit is in the nature of a suit against the United States, as the provision is that 'the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriations from the treasury.' 12 Stat. 741.

Cases of that kind present little or no difficulty of decision; but it is equally true that cases arise where no such instructions were given, and in such cases it follows that the importer, if he prevails in the suit, is entitled to an execution against the defendant which will bind his goods and estate, unless the court where the judgment is rendered deems it proper to give the collector a certificate that he had probable cause for his action in exacting the excessive duties. Certificates of the kind are never given until the litigation is closed, and, of course, it cannot be known whether it will be given or refused pending the litigation.

Where the collector acts under antecedent directions from the proper source, it is clear that the suit is in the nature of a suit against the United States, and it may be that the suit, if the certificate of probable cause is finally given, may be regarded in the same light; but more difficulty would attend the solution of the question in a case where neither of those conditions occur, especially if it appears that the suit was not commenced until after the collector went out of office. Actions of the kind must be commenced against the collector who made the illegal exaction, and no one pretends that such an action can proceed against the successor after the incumbent goes out of office.

Importers, in case they prevail, are in any view entitled to be paid the amount which they recover; nor is it important in this case to determine whether the pending actions are in the nature of suits against the United States, or merely suits against the collector, as in either view the result must be the same. Argument to show that the actions in form are actions against the present respondent is unnecessary, as that is conceded, but there is much reason to suppose that the collector acted under official orders.

Concede that the United States is the real party, still the court is of the opinion that there is nothing in the remarks attributed to the auditor of the custom-house or to the refund clerk or to the Secretary of the Treasury which can be held to preclude the respondent from pleading any proper plea to the actions which he may think necessary in making his defence. When the suits against the collector were commenced to recover back the money which the complainants allege he exacted from them illegally, he was a private citizen, and nothing is shown in pleading to justify the conclusion that the Secretary of the Treasury or the customs officers made any remarks which can create any liability as against the respondent which he did not incur. Nor is there any thing in the remarks of that officer, made to the attorney of the complainants, which will support the theory that he ever intended to deprive the respondent, as the defendant in these actions, of the right to plead any plea he, the respondent, might see fit in defence of the claims therein prosecuted.

Congress undoubtedly might authorize actions of the kind to be brought directly against the United States; but all must concede that such a power has never been exercised and is not conferred, and in the absence of such legislation the court is of the opinion that such actions may in certain aspects be treated as actions against the collector, unless it appears that he acted under the directions of the proper official authority, or that a case is made where no execution can issue against the collector.

Even suppose it were otherwise, still it is clear that none of the remarks attributed to the Secretary of the Treasury or to the officers of the customs can have any effect to estop the respondent from pleading any matter in defence of the actions which he may think necessary to protect his rights. Rightly interpreted, all that the respondent said to the attorney of the complainants had reference to the future action of the Secretary of the Treasury; that is, he expressed the opinion that the complainants could rely upon the statements of the auditor as correct, that according to the practice of the department the Statute of Limitations would cease to run when their claims were properly prepared and presented for adjudication and allowance.

Taken in the most favorable view for the complainants, it is clear that it is impossible to regard those remarks as a contract or promise made by either party. There was no promise to forbear instituting the suits, nor was there any promise, if forbearance was accorded, that the statute should cease to run. Every pretence of that sort is negatived by the language employed, which even fails to show that any negotiation took place between the parties looking to any such arrangement, contract, or promise. When they separated, each party was as free to pursue his own course as when the interview commenced. Complainants might have brought suits the same day; and if they had, the respondent would have been at liberty to make any defence in his power, irrespective of any thing which had transpired at the interview.

Nor is there any thing shown in the remarks attributed to the Secretary of the Treasury which can be held to support the theory of the complainants that he entered into any contract with their attorney, or ever made any promise that the Statute of Limitations should cease to run. All he did was to answer the questions propounded as to the practice of the department; but he gave no assurance that any indulgence would be granted to the complainants, unless the claims were duly prepared and presented for adjustment in proper time.

Examined in the light of these suggestions, as the case should be, it is obvious that the complainants have no just cause of complaint, as they have not in fact been deceived or misled.

Grant that, and still the complainants contend that it had the effect to conceal from them the necessity of instituting suits to prevent their claims from being barred by the lapse of time, and they contend that the same rule should be applied in the case as when the defendant fraudulently conceals from the plaintiff his cause of action; and decided cases are referred to where it is held that in such controversies the statute does not begin to run until the fraud is discovered.

Except where the Constitution, treaties, or statutes of the United States otherwise require, the Judiciary Act provides that the laws of the several States shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. 1 Stat. 92; Rev. Stat., sect. 721.

Repeated decisions of this court decide that the court is bound to conform to the decisions of the State courts in the construction of their Statutes of Limitation. Green v. Neal's Lessee, 6 Pet. 291; Harpending v. Dutch Church, 16 id. 455; Porterfield v. Clark, 2 How. 125.

State statutes in many cases provide that, where the action proceeds upon the ground of fraud, the lapse of time is to be computed from its discovery; but the courts of New York, as well as several other States, have always held that the concealment of the cause of action ex contractu does not interrupt or delay the running of the statute as a bar to the action. Troup v. The Executors of Smith, 20 Johns. (N. Y.) 44.

Assumpsit was brought in that case to recover damages, for that the testator, in his lifetime, undertook to survey a certain township of land, and to divide the same into convenient lots, to enable the plaintiff to sell the same to the best advantage; and the charge was, that he performed the work so unfaithfully and unskilfully, that it caused great damage to his employer, to which was added the money counts. Due appearance was entered by the executors of the deceased, and they pleaded non assumpsit and the Statute of Limitations. Issue was joined upon the first plea, and to the second the plaintiff replied that the cause of action was not discovered until within less than six years before the action was commenced. More than six years had elapsed after the fraud was committed, but it was not discovered until two or more years later; and the defendant demurred to the replication, insisting that the statute commenced to run from the time the fraud was committed, and the question of the sufficiency of the replication was argued by eminent counsel.

Plaintiff's counsel, in endeavoring to support the replication, contended that the cause of action did not accrue until the plaintiff discovered the fraud in making the survey; and in responding to that proposition, Spencer, C. J., who delivered the opinion of the court, remarked that the inquiry is, when did the plaintiff's cause of action accrue? and he immediately answered the inquiry as follows: 'Most certainly, when the fraud was consummated;' which was, as the whole court held, when the testator had completed the survey, as far as it was completed, and made the return of his field-notes and received his compensation, adding, that the injury, as far as he was concerned, was then done, and that he then became liable to an action for the fraudulent and imperfect manner of executing the duties he had assumed.

Speaking to the same point, the learned Chief Justice also remarked, that the fact that the plaintiff did not discover the imposition practised is a matter entirely distinct from the existence of the fraud and imposition. If, then, the plaintiff's cause of action accrued from the consummation of the fraud by the testator, and not at the time the plaintiff discovered it, the statute interposes as a protection, unless the action is commenced within six years next after the wrong was perpetrated.

Some countenance, he admits, is given to the opposite theory by certain decided cases, to which he refers, and then he proceeds to say: 'We cannot, however, yield the convictions of our own minds to decisions evidently borrowed from the courts of equity, and which have never been sanctioned by the courts of law in the country from which our jurisprudence is derived.' He admits that the rule is otherwise in courts of equity; but the court decided that courts of law are expressly bound by the statute, giving as a reason for the conclusion, that it relates to specified actions, and that it declares that such actions shall be commenced and sued within six years next after such actions accrued, and not after. Maxwell, Statutes, 6; The Imperial Gas Light and Coke Co. v. The London Gas Light Co., 10 Exch. 39. Thus not only affirmatively declaring within what time these actions are to be brought, but inhibiting their being brought after that period.

It is no answer to a plea of the Statute of Limitations, says Nelson, C. J., that the cause of action was fraudulently concealed by the defendant until after the statute had attached, and that the suit was brought within the time limited by the statute after the discovery of the right to sue. Allen v. Mille, 17 Wend. (N. Y.) 204; Leonard v. Pitney, 5 id. 30.

Courts of equity, says Bronson, may grant relief against acts and contracts executed under mistake or in ignorance of material facts; but it is otherwise where a party wishes to avoid his act or deed on the ground that he was ignorant of the law. ''Ignorantia juris non excusat. Champlin v. Laytin'', 18 id. 407; Storrs v. Barker, 6 Johns. (N. Y.) Ch. 166.

It is not a sufficient answer to the Statute of Limitations, says Phelps, in an action on the case for deceit, that the plaintiff was ignorant of his cause of action until within six years, although that ignorance was occasioned by the nature of the deceit or the manner in which the fraud was perpetrated. Smith v. Bishop, 9 Vt. 110; Fee v. Fee, 10 Ohio, 469; Clark v. Reeder, 1 Spears (S.C..), 407.

Without more, it must be conceded that these authorities are sufficient to show what the established rule in the States mentioned is, where the suit is an action at law, and that the fraudulent concealment by the defendant of the plaintiff's cause of action is not a good answer to the plea of the Statute of Limitations. Other States adopt the opposite rule, and their courts hold that the rule at law is the same as in equity. Hovender v. Annesly, 2 Sch. & Lef. 607; Coster v. Murray, 5 Johns. (N. Y.) Ch. 522; Michoud v. Girod, 4 How. 503; Hallet v. Collins, 10 id. 187; Sherwood v. Sutton, 5 Mas. 149; Jones v. Conway, 4 Yeates (Pa.), 109; McDowell v. Young, 12 Serg. & R. (Pa.) 128; Angell, Limitations (6th ed.), sects. 189, 190.

But it is not necessary to rest the case entirely upon the State rule of decision, as it is clear that the matters alleged in the bill of complaint are not sufficient to support any such theory, nor is that the true theory of the claim made by the complainants. On the contrary, they allege that they had a legal and just claim to recover back certain import duties illegally exacted by the respondent; and the necessary implication from the allegation is that they knew the legality of the claims as well when they filed their protests as when, seven years later, they instituted the pending actions against the respondent.

Fraudulent concealment of the cause of action is not alleged, nor is it the gravamen of the complaint. No such charge is made; but the complaint is that they were induced by the aforesaid representation to refrain from bringing their actions until the bar of the Statute of Limitations had attached, which, in the judgment of the court, the matters set forth in the bill of complaint are not sufficient to show.

Give the allegations the broadest signification the language employed will justify, and it is clear that the conversations attributed to the Secretary of the Treasury and the officers of the custom-house do not amount to a contract or promise that the Statute of Limitations should cease to run in any contingency, whether the complainants did or did not cause their claims to be prepared and presented to the Treasury Department for adjustment and allowance.

They never did prepare and present their claims to the Secretary of the Treasury for allowance, as required by the alleged rules of the department, nor do the conversations alleged amount to a promise that the statute should cease to run even if they had complied with the supposed rules and practice of the department.

Conversations of the kind cannot benefit the complainants, for several reasons: 1. Because they do not amount to a promise that the Statute of Limitations should cease to run; and if they did, they cannot avail the complainants as a new promise, because they are not in writing. 2. They do not amount to a contract to that effect; and if they do, they are without consideration. 3. They cannot have the effect to estop the respondent from pleading the bar of the statute, because both parties were equally well informed of all the facts. Shapley v. Abbott, 42 N. Y. 443; Packard v. Sears, 6 Ad. & Ell. 474; Freeman v. Clark, 2 Exch. 654; Foster v. Dawber, 6 id. 834; Edwards v. Chapman, 1 Mee. & W. 231; Swain v. Seamens, 9 Wall. 274; S.C.. 12 Blatch. 419.

Tested by these considerations, it follows that there is no error in the record.

Decree affirmed.

MR. JUSTICE MILLER, with whom concurred MR. JUSTICE FIELD, dissenting.


text: Talk:Andreae v. Redfield/Opinion of the Court


text:
Andreae v. Redfield/Dissent Miller

MR. JUSTICE MILLER, with whom concurred MR. JUSTICE FIELD, dissenting.

I dissent from the judgment in this case, because I believe that the acts and promises of the officers of the government, alleged in the bill, are such as to work an estoppel in equity to the plea of the Statute of Limitations in this case; and that the facts establishing this estoppel are too complex, and their relation to the defendant such that the issue cannot be well tried on a replication to the plea.

title: Andreae v. Redfield/Dissent Miller


text: Talk:Andreae v. Redfield/Dissent Miller

title: Talk:Andreae v. Redfield/Dissent Miller


text:
Ex Parte Schwab

MOTION for an order to show cause why a mandamus shall not be issued.

The facts are stated in the opinion of the court.

''Mr. Matt. H. Carpenter and Mr. Don M. Dickinson'' in support of the motion.

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

title: Ex Parte Schwab


text: Talk:Ex Parte Schwab

title: Talk:Ex Parte Schwab


text:
Ex Parte Schwab/Opinion of the Court

Certain creditors of Scott & Feibish, of Detroit, instituted proceedings in bankruptcy, March 14, 1878, against the debtors in the District Court of the United States for the Eastern District of Michigan, and at the same time obtained a provisional order for the seizure of certain goods which, it was alleged, had been disposed of in fraud of the bankrupt law. This order was placed in the hands of Salmon S. Matthews, marshal of the district, and he, on the 29th of March, took into his possession, as the property of the bankrupts, the goods claimed by Schwab, the petitioner herein. On the 13th of April, Scott & Feibish were in due form adjudicated bankrupts.

April 27, Schwab sued Matthews, the marshal, and Mabley, Michaels, Rothschild, and Hayes, four of the creditors of Scott & Feibish, in the Superior Court of the city of Detroit, for the value of the goods seized. May 6, Joseph L. Hudson was duly elected and appointed assignee in bankruptcy of Scott & Feibish, and the goods in question were thereupon turned over to him by the marshal. Since then the goods have been sold by the order of the bankrupt court, and the proceeds of sale remain in the hands of the assignee to be applied as part of the estate of the bankrupts, if it shall appear that the title to the goods was in the assignee at the time of the sale.

October 5, Hudson, the assignee, Matthews, the marshal, and the four creditors, defendants in the suit in the State court, filed a bill in equity against Schwab in the Circuit Court for the Eastern District of Michigan, wherein they pray that the sale and transfer of the goods to Schwab 'may be set aside and held for naught, and decreed to be in violation of the Bankrupt Act, and that said goods and chattels may be decreed to be a part of the estate of Scott & Feibish, and that the title of said Joseph L. Hudson, said assignee, to said goods, or to the funds arising therefrom, may be quieted and decreed to be perfect.' It is also further prayed that Schwab and his attorneys be enjoined 'from further prosecution of said suit so pending in the Superior Court of Detroit, or from the prosecution of any other or further suit in regard to the seizure of said goods, save in this [the circuit] court or in the bankruptcy court.'

A preliminary injunction, after notice, was granted by the judge of the District Court for the Eastern District of Michigan, November 12, and Schwab now asks for an order on the judge to show cause here why a mandamus should not issue commanding and enjoining him to vacate and set aside such injunction.

Mandamus cannot be used to perform the office of an appeal or a writ of error. Ex parte Loring, 94 U.S. 418; Ex parte Flippin, id. 350. The Circuit Court had jurisdiction of the action and of the parties, for the purpose of trying the title of the assignee to the goods. The injunction was granted in the course of the administration of the cause. Injunctions may be granted by the courts of the United States to stay proceedings in the courts of a State, 'in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.' Rev. Stat., sect. 720. When the application was made for the allowance of the injunction, it became the duty of the court to determine whether the case was one in which that power could be exercised. The question arose in the regular progress of the cause, and, if decided wrong, an error was committed, which, like other errors, may be corrected on appeal after final decree below.

The case is entirely different from what it would have been if the only object of the suit had been to enjoin Schwab from proceeding in the State court. There the question would have been as to the jurisdiction of the Circuit Court over the cause. But here is clearly jurisdiction of the cause. The assignee in bankruptcy had the undoubted right to sue Schwab in the Circuit Court to settle the title to the goods or the fund arising from their sale. The injunction was a mere incident to the principal relief he asked. Even if not granted, the suit could go on.

Being satisfied, by the petitioner's own showing, that the error, if any, in the court below cannot be corrected by mandamus, we deny the motion for an order to show cause.

Motion denied.

title: Ex Parte Schwab/Opinion of the Court


text: Talk:Ex Parte Schwab/Opinion of the Court


text:
Slaughter v. Glenn

APPEAL from the Circuit Court of the United States for the Western District of Texas.

The facts are stated in the opinion of the court.

Mr. W. S. Herndon for the appellants.

Mr. Isaac C. Collins, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Slaughter v. Glenn


text: Talk:Slaughter v. Glenn

title: Talk:Slaughter v. Glenn