text:
Beall v. New Mexico

ERROR to the Supreme Court of the Territory of New Mexico; the case being thus:

One Hinckley died at Santa F e, in the Territory of New Mexico, in October, 1866. At the time of his death he was a member of a mercantile copartnership, consisting of himself and two persons named Blake and Wardwell, and they carried on business at Fort Craig and other places in the Territory of New Mexico.

In November, 1866, one Beall was appointed 'administrator and executor of the estate of Hinckley, according to the last will of the deceased,' and upon such appointment gave a bond with himself as principal and one Staab and others as sureties, conditioned in the ordinary form:

'To account for, pay, and turn over all the moneys and property of the said estate to the legal heirs of the said deceased, and to execute the last testamentary will of the said deceased, and to do all other things relative to the said administration as required by law, or by the order of the Probate Court of the county of Santa F e, or any other court having jurisdiction in the matter.'

In pursuance of his appointment, Beall filed in the probate court an inventory of the assets of the estate, in which, among other things, he said:

'The property, rights, and credits of the said deceased, so far as the undersigned, executor, has been able to obtain a knowledge thereof, were, at the time of his decease, as follows:

'The firm or partnership of which the deceased was a member with Blake and Wardwell, were owing the said deceased the sum of $46,538.60. The undersigned being satisfied that th sum stated is correct, has agreed to receive of the said Blake and Wardwell, in full discharge of the capital and profits of the said deceased, the aforesaid sum. The said Blake and Wardwell have agreed to pay the said sum as soon as they can arrange their affairs to do so, and within a reasonable time. The undersigned is satisfied that the said arrangement is the best he could make for the interest of the estate, and that the payment will be made in due time.'

He subsequently ($5000 of the sum having in the meantime been paid), rendered an account to the court of probate, in which he charged himself with a balance due from Wardwell and Blake, in this manner:

'April 30th, 1868, to amount due from Wardwell and Blake, $41,556.25.'

In January, 1869, Beall, who was an officer of the army and expected to be ordered away from New Mexico, resigned his office of administrator, leaving the amount due from Blake and Wardwell unpaid: and in October, 1869, one Griffin was appointed administrator de bonis non to succeed him. Directly after this, that is to say, in November, 1869, a suit by the Territory of New Mexico, on the relation of this Griffin, was brought in the District Court for the county of Santa F e, against Beall as principal and Staab and the others, his sureties, upon the administration bond which he and they had given on his appointment.

The breaches of the bond assigned in the declaration were, in substance, that Hinckley's interest in the copartnership referred to, at the time of his death, was worth $60,000; that the effects of the firm consisted of merchandise, real estate, mines, and credits; and that Beall unlawfully and by verbal agreement disposed of the same for $46,500 to Wardwell and Blake, the surviving partners, thereby allowing the interest of the deceased to remain in their possession, and by them (and Beall) to be converted to their own use, and that he neglected to pay over and account for the same; also, generally, that through his want of attention and neglect assets of the estate to the amount of $60,000 were wholly lost, wasted, and dissipated.

The case having come on to be tried before a jury, Griffin, the administrator de bonis non, was examined as a witness for his own side of the case. He said:

On examination in chief--

'I had frequent conversations with Beall. I asked him why he had not taken some security; I told him I thought it was not safe; asked him if he had any note for the amount; he said he had not; all he had was in the inventory; when he sold the property, he supposed they would pay for it. After my appointment Beall delivered to me a paper [produced], purporting to be an abstract from the books of Hinckley, Blake, and Wardwell, showing the condition of the account of Hinckley with the firm, and said it was a true statement.'

[The paper, which was a debit and credit account containing many items on both sides and ending in a balance of $46,538.60, was read to the jury.]

On cross-examination, the witness, being asked by the defendant's counsel if Beall had ever told him that he had sold Hinckley's interest to Blake and Wardwell, answered:

'I don't recollect that he ever told me so; I inferred so from Beall's conversations, who treated it as a sale.'

The judge charged the jury as follows:

'On the part of the plaintiff it is contended that Beall, as administrator of Hinckley, deceased, sold the interest of Hinckley's estate in the property and effects of Hinckley, Blake, and Wardwell to Blake and Wardwell, the surviving partners of the firm, for the sum of $46,538.60, on credit, without taking any security for the same. In the opinion of the court, the statements of the inventory filed by Beall in the probate court, which are evidence in the cause, and the evidence of Elkins, establishes the fact of such sale. By selling this property on credit, Beall becomes personally liable in law to the estate for the amount for which the property was sold; and if the jury, from the evidence, arrive at the same conclusion with the court, they should find for the plaintiff, and assess his damages at $41,556, with interest at 6 per cent., such interest to commence six months after the inventory was filed, January 10th, 1867.'

Under this charge the jury rendered a verdict in favor of the plaintiff, and assessed the damages at $48,000, upon which verdict judgment was entered. An appeal was taken to the Supreme Court of the Territory. An appeal bond was given, conditioned that the appellants should perform the judgment of the court, and pay the damages and costs that might be adjudged against them upon their said appeal.

There is a provision in the Revised Statutes of New Mexico which reads as follows:

'In case of appeal in civil suits, if the judgment by the appellate court be against the appellant, it shall be rendered against him and his securities on the appeal bond.'

The 7th section of the organic act of the Territory, provides—

'That the legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act. . . . All the laws passed by the Legislative Assembly and governor shall be submitted to the Congress of the United States, and if disapproved shall be null and of no effect.'

There was no evidence that this law had ever been disapproved.

In pursuance of it, when the judgment was affirmed by the Supreme Court of the Territory, judgment was rendered against the appellants and the sureties upon the appeal bond.

The latter judgment was brought to this court by writ of error; the court being called upon to review as well certain errors which were alleged to affect the action itself, as others which were assigned upon a bill of exceptions taken at the trial of the cause.

The errors assigned were—

1st. That judgment was entered by the Supreme Court against the sureties of the appeal bond as well as against the appellants below.

2d. That an administrator de bonis non cannot maintain suit on the original administrator's bond.

3d. Other objections, as that the late administrator, Beall, had not been called to account in the probate court, and no decree had been passed against him, and that no order of the probate court was obtained for leave to prosecute the bond.

Mr. W. M. Evarts, for the plaintiff in error; Messrs. W. W. McFarland and L. P. Poland, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Beall v. New Mexico


text: Talk:Beall v. New Mexico

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

title: Talk:Beall v. New Mexico


text:
Beall v. New Mexico/Opinion of the Court

The first error assigned is, that judgment was entered by the Supreme Court against the sureties of the appeal bond as well as against the appellants below. This point depends on the question whether the statute of the Territory authorizing such a judgment is a valid one or not. As the legislative power of the Territory, by the organic act, extends to all rightful subjects of legislation consistent with the Constitution of the United States, it would seem to extend to such a case as this. A party who enters his name as surety on an appeal bond does it with a full knowledge of the responsibilities incurred. In view of the law relating to the subject it is equivalent to a consent that judgment shall be entered up against him if the appellant fails to sustain his appeal. If judgment may thus be entered on a recognizance, and against stipulators in admiralty, we see no reason in the nature of things, or in the provisions of the Constitution, why this effect should not be given to appeal bonds in other actions, if the legislature deems it expedient. No fundamental constitutional principle is involved; no fact is to be ascertained for the purpose of rendering the sureties liable, which is not apparent in the record itself; no object (except mere delay) can be subserved by compelling the appellees to bring a separate action on the appeal bond.

The next point made is a more serious one, to wit, that an administrator de bonis non cann t maintain suit on the original administrator's bond. It is true the action is brought in the name of the Territory of New Mexico, to which the bond was given, and is so far correct; but it is expressly brought 'for the use and benefit of William W. Griffin, administrator de bonis non,' and the whole frame of the petition is conceived on the theory that the duty of Beall to respond for defaults and devastavits in administration is owed to the administrator de bonis non. This does not seem to be the law as understood in England or in the States which derive their principles of jurisprudence from England, although in some States statutes have been passed making it the duty of an administrator who has been displaced, or of the representatives of one who has deceased, to account to the administrator de bonis non. By the English law, as administered in the ecclesiastical courts, the administrator who is displaced, or the representatives of a deceased administrator or executor intestate, are required to account directly to the persons beneficially interested in the estate, distributees, next of kin, or creditors; and the accounting may be made or enforced in the probate court, which is the proper court to supervise the conduct of administrators and executors. To the administrator de bonis non is committed only the administration of the goods, chattels, and credits of the deceased which have not been administered. He is entitled to all the goods and personal estate which remain in specie. Money received by the former executor or administrator, in his character as such, and kept by itself, will be so regarded; but, if mixed with the administrator's own money it is considered as converted, or, technically speaking, 'administered.' And all assets of the testator or intestate in the hands of third persons at the death of an administrator or executor intestate belong to the administrator de bonis non. Of course debts and choses in action not reduced to possession belong to this category. In this case the claim of Hinckley's estate against his surviving partners is of this character. If anything can be realized therefrom by the prosecution of those partners, it is the duty of the administrator de bonis non to prosecute them, as much as it was his predecessor's duty to do so, before his discharge. But, for the delinquency of the former administrator in not prosecuting, he is responsible to the creditors, legatees, and distributees directly, and not to the administrator de bonis non. This is the result of the authorities referred to. And it follows that, as the administrator de bonis non has no claim against the former administrator on this ground, he cannot prosecute for it on the administration bond. It is said in Williams on Executors (referring to 1 Haggard's Ecclesiastical Reports, 139), that 'if the original administrator be dead, and administration de bonis non has been obtained, such administrator may sue the executors of the deceased administrator at law on the administration bond, in the name of the ordinary; and the court will order the bond 'to be attended with,' in the common-law court, and produced at the hearing of the cause.' The authority referred to was the case of 'The Goods of Hall,' in which the first administrator died without having distributed the assets in his hands, and leaving a considerable balance of the estate in the hands of his bankers. The administrator de bonis non having applied to the executors of the deceased administrator for his balance, and payment being refused, he commenced the action on the former administrator's bond, and the prerogative court sanctioned the proceeding. But this case was undoubtedly founded on the theory that the money in bank was a part of the original intestate's estate in specie, and, as such, that the administrator de bonis non was entitled to it. If specific effects of the estate remain in the hands of a discharged administrator or executor, or in the hands of his represen atives, of course, the administrator de bonis non is entitled to receive them. And, if they are refused, he will be the proper person to institute suit on the bond to recover the amount. But this is perfectly consistent with the doctrine above expressed, that for delinquencies and devastavits he cannot sue his predecessor or his predecessor's representatives, either directly or on their administration bond.

We have been unable to find anything in the local laws or statutes of New Mexico establishing a different rule on this subject from that which prevails in States governed by the common law. The judgment must, therefore, be reversed for this ground alone, without reference to other errors assigned.

Other objections to the validity of the action are raised-as that the late administrator, Beall, has not been called to account in the probate court, and no decree has been passed against him, and that no order of the probate court was obtained for leave to prosecute the bond. Many authorities show that these preliminaries are necessary to sustain the action. They will be found generally collected in the text and notes of Williams on Executors, p. i, book v, c. iv, pp. 444-448, 4th American edition. Chief Justice Redfield says: 'The ordinary bond for faithful administration is not intended to transfer the jurisdiction of questions connected with such administration from the appropriate and exclusive sphere of the probate courts to that of the common-law courts. But these bonds are designed to secure the enforcement of the decrees of the probate court, after they are rendered against the executor or administrator, whereby his breach of duty is established in the proper forum.' The bond is taken by the probate court, and is subject to its control, and the money which may be recovered thereon is ordinarily to be paid into said court for distribution as assets of the estate, unless recovered to satisfy a particular judgment or decree. These considerations seem to demonstrate the propriety of requiring the order of the probate court for prosecuting the bond.

Were not these considerations amply sufficient to decide the case, we should still be of opinion that the view taken by the court below on the trial, as to the nature and consequences of Beall's settlement with Hinckley's surviving partners, was very questionable, and calculated to mislead the jury. Beall's account of this settlement, as contained in his inventory of the estate filed soon after the testator's death, was as follows:

'The property, rights, and credits of the said deceased, so far as the undersigned, executor, has been able to obtain a knowledge thereof, were, at the time of his decease, as follows:

'The firm or partnership of which he was a member with Blake and Wardwell, at Fort Craig and other places in this Territory, were owing the said deceased the sum of $46,538.60. The undersigned, being satisfied that the sum stated is correct, has agreed to receive of the said Blake and Wardwell, in full discharge of the capital and profits of the said deceased, the aforesaid sum. The said Blake and Wardwell have agreed to pay the said sum as soon as they can arrange their affairs to do so, and within a reasonable time. The undersigned is satisfied that the said arrangement is the best he could make for th interest of the estate, and that the payment will be made in due time.'

The judge on the trial seemed to treat this statement as a clear admission of a sale; whereas in our judgment it was equally consistent with a mere liquidation of accounts; and the witness, Elkins, who was called to testify as to Beall's conversations, was obliged to admit that Beall had never told him that it was a sale, but that he, the witness, only inferred that it was such. The testimony of this witness, and the inventory and accounts of the executor being all the material evidence on the subject, ought to have been left to the jury, as well as the evidence relating to the executor's negligence.

Regarding the transaction as clearly a sale, the judge instructed the jury that the administrator had rendered himself liable for the whole claim by not taking security for its payment; whereas, if it was merely a liquidation of the accounts he would only be liable for negligence (if under the circumstances of the case he was guilty of negligence) in enforcing the claims of the estate against the surviving partners.

However, the errors which lie at the foundation of the action preclude further trial, and require that the judgment should be unconditionally REVERSED, with directions to

DISMISS THE PETITION.


text: Talk:Beall v. New Mexico/Opinion of the Court


text:
Mitchell v. Hawley

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

The 18th section of the Patent Act of July 4th, 1836, after enacting that patents may in certain cases be extended, and that 'thereupon the said patent shall have the same effect in law as though it had been originally granted for the term of twenty-one years,' adds:

'And the benefit of such renewal shall extend to assignees and grantees of the right to use the thing patented to the extent of their respective interests therein.'

With this statutory enactment in force the United States, on the 3d of May, 1853, granted a patent to one Taylor for fourteen years for improved machinery in felting hats, the patent lasting, of course, till May 3d, 1867.

While the patent was in force, that is to say on the 19th of November, 1860, Taylor, by deed reciting that one Bayley was 'desirous of obtaining the exclusive right to make and use, and license to others the right to use the said machines in the States of Massachusetts and New Hampshire,' 'conveyed to the said Bayley' certain rights, as follows:

'The exclusive right to make and use, and to license to others the right to use the said machines in the said States of Massachusetts and New Hampshire, and in no other place or places, during the remainder of the original term of said letters-patent. Provided, that the said Bayley shall not in any way or form dispose of, sell, or grant any license to use the said machines beyond the 3d day of May, A.D. 1867.

'Should the said letters-patent be extended beyond the 3d of May, A.D. 1867, then it is agreed that the said Bayley shall have the right to control the same in the said States of Massachusetts and New Hampshire, provided that he shall pay to the said grantor or his heirs or assigns, a fair and reasonable compensation for the same, or on terms as favorable as may be offered by any other person or party.'In possession of this license Bayley, on the 18th of March, 1864, in consideration of $1200, licensed one Mitchell and others of the town of Haverhill, Massachusetts, to run and use two sets (four machines) for felting hats, in said town of Haverhill, under Taylor's patent bearing date May 3d, A.D. 1864.

Before the patent expired (May 3d, 1867) the Commissioner of Patents renewed and extended it for the further term of seven years; and one Hawley, having become the owner of this extended term for the States of Massachusetts and New Hampshire, filed a bill against Mitchell and the others to restrain them from using the four machines which Bayley on the 18th of March, 1864, had give them license to use, it being admitted that the said Mitchell et al. were now using those identical machines.

The court below granted the injunction, and the defendants took this appeal.

Mr. F. A. Brooks, for the appellant, relying on Bloomer v. Millinger, and on the 18th section of the Patent Act, contended that a sale of machines by the patentee himself operated to take the thing sold out of the reach of the Patent Act altogether, and that as long as the machines themselves lasted, the owner could use them.

Mr. J. E. Manadier, contra, argued that here the right to make and use, and to license to others the right to use, was expressly limited as to duration by apt words, showing clearly an intent that it should not survive the original term of the patent; that this was a perfectly lawful sort of contract, and therefore that the rights must expire with that term; for that neither the 18th section of the Patent Act nor anything laid down in Bloomer v. Millinger was applicable.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Mitchell v. Hawley


text: Talk:Mitchell v. Hawley

title: Talk:Mitchell v. Hawley


text:
Page:Dictionary of National Biography volume 59.djvu/45

 Book-Lore, ii. 177; Notes and Queries, 3 Oct. 1885, p. 280; Biograph, 1880, iii. 161–164; private information.]  WALFORD, EDWARD (1823–1897), compiler, born on 3 Feb. 1823, at Hatfield Place, near Chelmsford, was the eldest son of William Walford (d. 1855) of Hatfield Peverell, rector of St. Runwald's, Colchester, by his wife Mary Anne, daughter of Henry Hutton, rector of Beaumont, Essex, and chaplain of Guy's Hospital, and granddaughter of Sir [q. v.], ‘the hero of Louisburg.’

Edward was educated first at Hackney church of England school, under [q. v.] (afterwards archdeacon of Cleveland), and afterwards at Charterhouse under Augustus Page Saunders (afterwards dean of Peterborough). He matriculated from Balliol College, Oxford, on 28 Nov. 1840, and was elected to an open scholarship in 1841. In 1843 he gained the chancellor's prize for Latin verse, and in 1844 he was ‘proxime’ for the Ireland scholarship, [q. v.] being the successful candidate. Walford graduated B.A. in 1845 and M.A. in 1847. He was ordained deacon in 1846 and priest in the year following. In 1847 and 1848 he gained the Denyer theological prizes. In 1846 he became assistant-master at Tonbridge school, and from 1847 to 1850 he employed himself in Clifton and London in preparing private pupils for Oxford. Before 1853 he joined the Roman catholic communion as a lay member, returned to the English church in 1860, and was again admitted to the church of Rome in 1871. He returned to the church of England about a year before his death. In June 1858 Walford became editor of the ‘Court Circular,’ withdrawing in June 1859 after losing 500l. in the venture. From 1859 to 1865 he was connected with ‘Once a Week,’ first as sub-editor and afterwards as editor. He was editor of the ‘Gentleman's Magazine’ from January 1866 till May 1868, when it passed under the management of Joseph Hatton with an entire change of character. From June to December 1869 he edited the ‘Register and Magazine of Biography,’ a work which had been started at the commencement of the year with the view of supplying the place of the ‘Gentleman's Magazine’ as a biographical record. It was discontinued at the close of the year.

During his editorial labours Walford was also engaged in the publication of a series of biographical and genealogical works of reference. In 1855 appeared ‘Hardwicke's Shilling Baronetage and Knightage,’ ‘Hardwicke's Shilling House of Commons,’ and ‘Hardwicke's Shilling Peerage,’ works which have since been issued annually. These were followed by other works of a similar character. The most notable were the ‘County Families of Great Britain,’ issued in 1860, and the ‘Windsor Peerage,’ issued in 1890. He edited ‘Men of the Time’ in 1862.

Walford was an antiquary of some reputation. In 1880 he edited the ‘Antiquary.’ and in the following year, after relinquishing his appointment, he started a new periodical, entitled ‘The Antiquarian Magazine and Bibliographer,’ which he continued to edit till the close of 1886. From 1880 to 1881 he was a member of the Archæological Association. He was also a member of the Royal Archæological Institute of Great Britain and Ireland. He was on the council of the Society for Preserving the Memorials of the Dead, was one of the founders of the ‘Salon,’ and a frequent contributor to ‘Notes and Queries.’ He died at Ventnor in the Isle of Wight on 20 Nov. 1897. He married, first, on 3 Aug. 1847, Mary Holmes, daughter of John Gray, at Clifton. By her he had one daughter, Mary Louisa, married to Colin Campbell Wyllie. He married, secondly, on 3 Feb. 1852, Julia Mary Christina, daughter of Admiral Sir [q. v.] By her he left three sons and two daughters.

Besides the works already mentioned, Walford's chief publications were: He also edited:  ‘Butler's Analogy and Sermons’ (Bohn's Standard Libr.).  ‘
 * 1) ‘A Handbook of the Greek Drama,’ London, 1856, 8vo.
 * 2) ‘Records of the Great and Noble,’ London, 1857, 16mo.
 * 3) ‘Life of the Prince Consort,’ London, 1861, 12mo.
 * 4) With  [q. v.], ‘Old and New London,’ London, 1872–8, 6 vols. 8vo; Walford's share being the last four volumes.
 * 5) ‘Louis Napoleon: a Biography,’ London, 1873, 12mo. 6. ‘Tales of our Great Families,’ London, 1877, 2 vols. 8vo; new edit. 1890.
 * 6) ‘Pleasant Days in Pleasant Places,’ London, 1878, 8vo; 3rd edit. 1885.
 * 7) ‘Londoniana,’ London, 1879, 2 vols. 8vo.
 * 8) ‘Life of Beaconsfield,’ London, 1881, 12mo.
 * 9) ‘Greater London: a Narrative of its History, its People, and its Places,’ London, 1883–4, 2 vols. 8vo.
 * 10) ‘The Pilgrim at Home,’ London, 1886, 12mo.
 * 11) ‘Chapters from Family Chests,’ London, 1886, 8vo.
 * 12) ‘Edge Hill: the Battle and Battlefield,’ Banbury, 1886, 8vo.
 * 13) ‘The Jubilee Memoir of Queen Victoria,’ London, 1887, 8vo.
 * 14) ‘William Pitt: a Biography,’ London, 1890, 8vo.
 * 15) ‘Patient Griselda, and other Poems,’ London, 1894, 8vo.


text:
Mitchell v. Hawley/Opinion of the Court

Patentees acquire by their letters-patent the exclusive right to make and use their patented inventions and to vend the same to others to be used for the period of time specified in the patent, but when they have made one or more of the things patented, and have vended the same to others to be used, they have parted to that extent with their exclusive right, as they are never entitled to but one royalty for a patented machine, and consequently a patentee, when he has himself constructed a machine and sold it without any conditions, or authorized another to construct, sell, and deliver it, or to construct and use and operate it, without any conditions, and the consideration has been paid to him for the thing patented, the rule is well established that the patentee must be understood to have parted to that extent with all his exclusive right, and that he ceases to have any interest whatever in the patented machine so sold and delivered or authorized to be constructed and operated. Where such circumstances appear, the owner of the machine, whether he built it or purchased it, if he has also acquired the right to use and operate it during the lifetime of the patent, may continue to use it until it is worn out, in spite of any and every extension subsequently obtained by the patentee or his assigns.

Patents were granted, under the prior Patent Act, for the term of fourteen years, but the provision was that a patentee in certain cases might have the term extended for seven years from and after the expiration of the first term, and the same section provided that the benefit of such renewal shall extend to assignees and grantees of the right to use the thing patented to the extent of their respective interests therein, which last provision has frequently been misunder-stood. Such misapprehension has usually arisen from a failure to keep in view the well-founded distinction between the grant and the right to make and vend the patented machine, and the grant of the right to use it, as was first satisfactorily pointed out by the late Chief Justice Taney with his accustomed clearness and precision.

Purchasers of the exclusive privilege of making or vending the patented machine hold the whole or a portion of the franchise which the patent secures, depending upon the nature of the conveyance, and of course the interest which the purchaser acquires terminates at the time limited for its continuance by the law which created the franchise, unless it is expressly stipulated to the contrary. But the purchaser of the implement or machine for the purpose of using it in the ordinary pursuits of life stands on different grounds, as he does not acquire any right to construct another machine either for his own use or to be vended to ano her for any purpose. Complete title to the implement or machine purchased becomes vested in the vendee by the sale and purchase, but he acquires no portion of the franchise, as the machine, when it rightfully passes from the patentee to the purchaser, ceases to be within the limits of the monopoly.

Patented implements or machines sold to be used in the ordinary pursuits of life become the private individual property of the purchasers, and are no longer specifically protected by the patent laws of the State where the implements or machines are owned and used. Sales of the kind may be made by the patentee with or without conditions, as in other cases, but where the sale is absolute, and without any conditions, the rule is well settled that the purchaser may continue to use the implement or machine purchased until it is worn out, or he may repair it or improve upon it as he pleases, in same manner as if dealing with property of any other kind.

Letters-patent were granted to James F. Taylor for new and useful improvements in machinery for felting hats, bearing date the third of May, 1853, securing to him the exclusive right to make and use and to vend to others the right to make and use the said machines for the term of fourteen years from the date of the letters-patent. Due conveyance or license, subject to certain restrictions and limitations, was made by the patentee of the exclusive right to make and use and to license to others the right to use the said machines in the States of Massachusetts and New Hampshire, during the remainder of the original term of said letters-patent, it being expressly stipulated in the instrument of conveyance that the licensee 'shall not, in any way, or form, dispose of, sell, or grant any license to use the said machines beyond the expiration' of the original term. Apart from that the patentee also stipulated that the said licensee, if the patent should be extended, should have the right to control the same in those two States, he paying to the grantors in his license, or their heirs and assigns, a fair and reasonable compensation for the same, on terms as favorable as may be offered to any other person or party. Bayley, as such licensee, on the eighteenth of March, 1864, constructed four machines, being two sets, and sold the machines, 'with the right to run' the same, to the grantors of the respondents, for the sum of twelve hundred dollars, executing to the purchasers at the same time a license under his hand and seal, authorizing the purchasers, as such licensees, 'to run and use two sets (four machines) for felting hats, in said town of Haverhill, under Taylor's patent, bearing date as specified in the original letters-patent,' showing conclusively that the purchasers were referred to the original letters-patent as the source of his authority. Of course said letters-patent expired on the third of May, 1867, and the record shows that the commissioner, before the term expired, renewed the letters-patent and extended the same for the further term of seven years from the expiration of the original term, and that the complainants having become by certain mesne conveyances, duly recorded, the exclusive assignees of the right, title, and interest in the renewed letters-patent for those two States, instituted the present suit to restrain the respondents from using the four machines which they or their grantors purchased of the licensee under the original letters-patent. They appeared to the suit and filed an answer setting up as a defence to the charge of infringement that they are by law authorized to continue to use the four machines just the same under the extended letters-patent as they had the right to do under the original patent, when the purchase was made by those under whom they claim, which is the only question in the case.

No one in general can sell personal property and convey a valid title to it unless he is the owner or lawfully represents the owner. Nemo dat quod non habet. Persons, therefore, who buy goods from one n t the owner, and who does not lawfully represent the owner, however innocent they may be, obtain no property whatever in the goods, as no one can convey in such a case any better title than he owns, unless the sale is made in market overt, or under circumstances which show that the seller lawfully represented the owner.

Argument to show that the grantor under whom the respondents claim never acquired the right to sell the machines and give their purchasers the right to use the same in the ordinary pursuits of life beyond the term of the original patent is certainly unnecessary, as the instrument of conveyance from the patentee to him, which describes all the title he ever had, expressly stipulates that he shall not in any way or form dispose of, sell, or grant any license to use the said machines beyond the expiration of that term of the patent, and the form of the license which he gave to the purchasers shows conclusively that he understood that he was not empowered to give a license which should extend beyond that limitation. Notice to the purchaser in such a case is not required, as the law imposes the risk upon the purchaser, as against the real owner, whether the title of the seller is such that he can make a valid conveyance. Certain exceptions undoubtedly exist to that rule, but none of them have any application to this case. Suppose the rule was otherwise, and that the real owner, in order to defeat the title of the purchaser, must show that the latter knew what the facts were, the court would still be of the opinion that the decree ought to be affirmed, as the terms of the license which the seller gave to the purchasers were sufficient to put them upon inquiry, and it is quite obvious that the means of knowledge were at hand, and that if they had made the least inquiry they would have ascertained that their grantor could not give them any title to use the machines beyond the period of fourteen years from the date of the original letters-patent, as he was only a licensee and never had any power to sell a machine so as to withdraw it indefinitely from the operation of the franchise secured by the patent.

DECREE AFFIRMED.

title: Mitchell v. Hawley/Opinion of the Court


text: Talk:Mitchell v. Hawley/Opinion of the Court


text:
Marshall v. Knox

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

Marshall was the owner of a plantation in the parish of Avoyelles, in Louisiana, and on the 7th of February, 1867, leased it to Nathan Smith and Henry Fuller for three years, from January 1st, 1867, at $3000 a year, payable in two equal payments. At the end of the first year the tenants were in arrear $1400, and on the 4th of January, 1868, Marshall commenced an action therefor in the District Court of the parish, and applied for and obtained a writ of provisional seizure (as it is called), being the usual process by which a lessor takes possession of his lessee's property found on the premises, for the purpose of enforcing his lien thereon. This writ was served by the sheriff on the 6th of January, 1868, by serving a copy on the lessees, and by a seizure of their property on the land, consisting of mules, wagons, farming implements, and stock, grain, furniture, &c., appraised at $1744.

On the 15th of January, 1868, Smith, one of the lessees, filed in the District Court of the United States for Louisiana a petition to be declared a bankrupt, and was declared such accordingly; and on the 12th of February, 1868, the defendants were appointed his assignees. The controversy in this case arose from the proceedings undertaken by the assignees to take the property aforesaid out of the hands of the sheriff, and to dispose of it under the orders of the bankrupt court. They first obtained from the court a rule upon the lessor and the sheriff to show cause why they should not deliver up the property to the assignees, alleging that various creditors of the bankrupt claimed a privilege on the property, and that it was necessary for a proper adjustment of all claims, privileges, and liens, that the possession should be surrendered to the assignees, to be subject to the bankrupt court. The lessor contested this rule, stated his own rights and proceedings, and claimed possession of the property through the sheriff, for the purpose of selling the same to raise the amount of his rent. The rule, however, was made absolute, without, so far as appeared, any other proof on the subject. The lessor appealed, but the district judge would not allow the appeal, and there was no justice of this court at that time (April, 1868) assigned to that circuit to whom application could be made. The lessor thereupon filed a bill, the present bill, in the court below for an injunction to prohibit the assignees from proceeding under the said order of the bankrupt court, and from taking possession of the property, and for a decree that they be directed to pursue any residuary interest of the bankrupt in the lessor's suit in the District Court of the parish, and not molest him in detaining and subjecting the property to the payment of his rent, and for further relief. Failing to obtain a preliminary injunction, and the property being taken and sold by the assignees, the lessor filed a supplemental bill, complaining of the illegality of the proceedings, asking for a review of the same, and for an account and damages. The bill and supplemental bill set out the lease, the provisional seizure, the proceedings in the bankrupt court, and the acts of the assignees; and complained that the lessor was injured by a sacrifice of the property; and stated that before filing the original bill he had offered the assignees a bond, with sufficient sureties, to protect any persons claiming any superior liens to his on the property, if any such there were, which, however, he denied.

The defendants, in their answer, alleged that the lessees had a counter claim for repairs and permanent improvements, and that a number of hands employed on the plantation had a privilege for their wages superior to that of the lessor; but no proof of these facts was offered in the case.

The principal allegations of the complainant were proved, and the defendants on their part adduced proof to show that they had acted in good faith under the orders of the bankrupt court, and that they had sold the property fairly, and held the proceeds for distribution, according to the rights of the parties in due course of the bankruptcy proceedings.

On hearing, the bill was dismissed for want of jurisdiction; and Marshall, the lessor and complainant, appealed.

Three questions now came before this court:

1st. Was this decree dismissing the bill for want of jurisdiction rightly made? Ought not the court below contrariwise, to have entertained the case and decided it on its merits?

2d. Supposing that it ought to have done so, how stood the case on the merits? and

3d. If these were with the complainant, what relief ought he to have?

Messrs. E. T. Merrick and G. W. Race, for the appellant; no opposing counsel.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Marshall v. Knox


text: Talk:Marshall v. Knox

title: Talk:Marshall v. Knox


text:
Marshall v. Knox/Opinion of the Court

The first question is, whether the decree dismissing the bill for want of jurisdiction was rightly made, and this is to be solved by reference to the second section of the Bankrupt Act. By this section it is declared that the Circuit Courts 'shall have a general superintendence and jurisdiction of all cases and questions arising under this act; and, except when special provision is otherwise made, may, upon bill, petition, or other proper process, of any party aggrieved, hear and determine the case as in a court of equity.' By a subsequent clause of the same section it is declared that said courts 'shall have concurrent jurisdiction with the District Courts. . . of all suits at law or in equity. . . by the assignee against any person claiming an adverse interest, or by such person against such assignee, touching any property, or rights of property, of said bankrupt, transferable to or vested in such assignee.'

The first clause confers upon the Circuit Courts that supervisory jurisdiction which may be exercised in a summary manner, in term or vacation, in court or at chambers, and upon the exercise of which this court has decided that it has no appellate jurisdiction.

The second clause confers jurisdiction by regular suit, either at law or in equity, in the cases specified; that is, in controversies between the assignee and persons claiming an adverse interest, touching any property of the bankrupt.

The present case is in form a regular bill in equity; but it also asks a revision of the action of the District Court in the premises. As an original bill in equity it cannot stand, if the District Court had jurisdiction to proceed as it did; for the matter was already decided in that court. As a bill to review the proceedings and decision of the District Court, it was a very proper proceeding, and ought to have been entertained by the Circuit Court. The revisory jurisdiction of the Circuit Court may be exercised by bill as well as by petition; and as this bill complains of the action of the District Court, and asks for a review and reversal thereof, the Circuit Court erred in dismissing it for want of jurisdiction. But regarded as a bill of review, we could not, according to our decision in Morgan v. Thornhill, entertain an appeal from the decision of the Circuit Court in the case.

The appeal, therefore, must be dismissed, unless it can be shown that the District Court proceeded without jurisdiction. If this were the case, then the bill may be regarded as an original bill, of which the Circuit Court clearly had jurisdiction, and the appeal to this court was properly taken.

The case here, then, depends on the question whether the District Court had jurisdiction to proceed by rule as it did. The goods, it has been seen, were in the custody of the sheriff, under a writ of provisional seizure, and held as a pledge for the rent of the lessor. The seizure had been made before the bankruptcy. The landlord claimed the right thus to hold possession of them until his claim for rent was satisfied. This claim was adverse to that of the assignee. The case presented was one of conflicting claims to the possession of goods, and the sheriff had present possession for the benefit of the lessor. Neither the sheriff nor the lessor was a party to the proceedings in bankruptcy. No process had been served upon them to make them such. They were not before the court; and the court had no control or jurisdiction over them.

Under these circumstances the assignees applied for and obtained from the District Court, a rule on the lessor and sheriff to deliver the goods to them. Had the court authority to make such a rule? Could such a rule be characterized as due process of law?

The bankrupt law does not distinguish in what cases the District Court may proceed summarily, and in what cases by plenary suit; and we are left to decide the question on the general principles that affect the case. The second section, however, in conferring jurisdiction on the Circuit Courts, uses this language: 'Said Circuit Courts shall also have concurrent jurisdiction with the District Courts of the same district of all suits at law or in equity, which may or shall be brought by the assignee in bankruptcy against any person claiming an adverse interest, or by such person against such assignee, touching any property or rights of property of said bankrupt.' This language seems to indicate that where there is a claim to an adverse interest in the property, a suit at law or in equity will be the ode of redress properly resorted to. The eighth section, in granting appeals and writs of error from the District to the Circuit Court, only does so in cases in equity and at law, and in cases where the claim of a creditor is allowed or rejected. If, therefore, adverse claims to property could be decided by the summary action of the District Court, not only would the party claiming adversely to the assignee be deprived of a trial by due process of law, but he would be without appeal. An appeal was in fact denied in this case.

We think that it could not have been the intention of Congress thus to deprive parties claiming property, of which they were in possession, of the usual processes of the law in defence of their rights.

The subject, in one of its aspects, came before this court in the case of Smith v. Mason, reported in 14 Wallace, 419. In that case the adverse claim was to the absolute property of the fund in dispute; not, as in this, to a mere lien, and to possession by way of pledge under the lien; and we held that the bankrupt court could not, by a mere rule, make the adverse claimant a party to the bankruptcy proceedings and adjudge his right in a summary way, but that the assignee must litigate the claim in a plenary suit, either at law or in equity. But it may, with some plausibility, be said that, as the property in this case is conceded to be in the bankrupt, and the question has respect only to the right of possession under the lien, the District Court, which has express jurisdiction of the 'ascertainment and liquidation of the liens and other specific claims' on the bankrupt's property, might properly assume control of the property itself. The claim, however, is to the right of possession, and that right may be just as absolute and just as essential to the interests of the claimant as the right of property in the thing itself, and is, in fact, a species of property in the thing just as much the subject of litigation as the thing itself. It is the opinion of the court, therefore, that the case is not substantially different from that of Smith v. Mason. Besides, it has another point, in common with that case, upon which a direct adjudication was made therein. The lessor in this case was not a party to the bankrupt proceeding; and in Smith v. Mason we held expressly that 'strangers to the proceedings in bankruptcy, not served with process, and who have not voluntarily appeared and become parties to such litigation, cannot be compelled to come into court under a petition for a rule to show cause.'

The court is of opinion, therefore, that the District Court proceeded without jurisdiction in compelling the lessor and the sheriff, under a rule to show cause, to deliver up possession of the goods in question to the assignees. It results that the bill in this case was properly filed as an original bill, and on that account should not have been dismissed as for want of jurisdiction. The case should have been heard and decided upon the merits.

We are then brought to the question of merits. If the complainant had no right to hold the goods, notwithstanding his claim to hold them, in an action at law against the assignee he could have recovered only nominal damages; and, coming into a court of equity for redress, and praying for an account of the value of the goods, and for damages, if it turn out that he had no right to withhold the goods from the possession of the assignee, the court would be very reluctant to compel the latter to place the value of the goods in his hands to be relitigated in another suit. A court of equity having got possession of the case by the lessor's own act, must proceed to decide the whole merits of the controversy.

But we think it very clear that the complainant had a right to the possession which he claimed. The fourteenth section of the Bankrupt Act, it is true, vests in the assignees all the property and estate of the bankrupt, 'although the same is then attached on mesne process as the property of the debtor, and shal dissolve any such attachment made within four months next preceding the commencement of such proceedings.' But this clause evidently refers to those cases of original process of attachment, which only become perfected liens by the judgment which may ensue. The lessor's lien for rent on the goods of his tenant situate on the premises is one of the strongest and most favored in the law of Louisiana. The articles of the Civil Code use the following language:

'The lessor has for the payment of his rent and other obligations of the lease, a right of pledge on the movable effects of the lessee which are found on the property leased.'

'In the exercise of this right the lessor may seize the objects which are the subject of it before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the property of the lessee, and can be identified.'

'The right which the lessor has over the products of the estate, and on the movables which are found on the place leased, for his rent, is of a higher nature than mere privilege. The latter is only enforced on the price arising from the sale of movables to which it applies. It does not enable the creditor to take or keep the effects themselves specially. The lessor, on the contrary, may take the effects themselves and retain them until he is paid.'

When the rent accrues, or even before it is due, if the lessor apprehends that the goods may be removed, he may have a writ of provisional seizure to the sheriff, who, by virtue thereof, takes possession of the goods and sells them in due course, as soon as the court has recognized the amount of rent for which they are liable.

Such a case is similar to that of an execution, in reference to which it has been properly held that where the levy is made before the commencement of proceedings in bankruptcy, the possession of the officer cannot be disturbed by the assignee. The latter, in such case, is only entitled to such residue as may remain in the sheriff's hands after the debt for which the execution issued has been satisfied. Such, we think, were the relative rights of the parties in this case. If the assignee apprehended that the sheriff would, by delay or negligence, waste the goods in his hands, he could either apply to the District Court of the parish for redress or aid in the premises, or perhaps file a bill in equity in the Circuit or District Court of the United States.

The next question is, what relief ought to be given to the complainant?

The goods have been sold by the assignees. They cannot be returned in specie. The supplemental bill prays that the assignees be decreed to account to the complainant for the full value of the property, and also such sum of money as he might be entitled to receive by reason of the wrongful acts of the assignees in the premises, and for further relief. The bill, it must be remembered, was originally filed for an injunction to prevent the assignees from disturbing the complainant in his possession of the goods. He was not in laches in defending his rights. He is clearly entitled, under the circumstances of the case, to the full value of these goods, clear of all expenses, whether the assignees realized that value or not (limited, of course, by the amount of rent which he is entitled to be paid); and also to all the taxable costs to which he has been put by this litigation. As to any damages beyond that, if he has suffered any, we think that he ought not to recover them in this suit, as he, or the sheriff for his benefit, had an option to bring an action of trespass for damages, instead of resorting to a court of equity for relief. Damages are allowed, it is true, in certain cases, as incidental to other relief; but even if they could, in strictness, be awarded in this suit, we do not think that the case is such as to call for the interposition of the court in directing an inquiry as to damages.

DECREE REVERSED, with directions to the court below to proceed in the cause

IN CONFORMITY WITH THIS OPINION.

title: Marshall v. Knox/Opinion of the Court


text: Talk:Marshall v. Knox/Opinion of the Court


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Page:Dictionary of National Biography volume 59.djvu/46

  and Economics of Aristotle,’ a new translation (Bohn's Classical Libr.).  ‘Ecclesiastical History of Socrates,’ revised translation (Bohn's Eccles. Libr.).  ‘Ecclesiastical History of Sozomen and the Ecclesiastical History of Philostorgius,’ revised translation (Bohn's Eccles. Libr.).  ‘Ecclesiastical History of Theodoret and Evagrius,’ revised translation (Bohn's Eccles. Libr.).  ‘Poetical Works of Robert Herrick, with a Memoir,’ London, 1859, 8vo.  ‘Juvenal’ (‘Ancient Classics for English Readers’), London, 1870, 8vo.  ‘Speeches of Lord Erskine, with Life,’ London, 1870, 2 vols. 8vo.

WALFORD, THOMAS (1752–1833), antiquary, born on 14 Sept. 1752, was the only son of Thomas Walford (d. 1756) of Whitley, near Birdbrook in Essex, by his wife, Elizabeth Spurgeon (d. 1789) of Linton in Cambridgeshire. He was an officer in the Essex militia in 1777, and was appointed deputy lieutenant of the county in 1778. In March 1797 he was nominated captain in the provisional cavalry, and in May following was gazetted major. In February 1788 he was elected a fellow of the Society of Antiquaries, in October 1797 a fellow of the Linnean Society, in 1814 a member of the Geological Society, and in 1825 a fellow. In 1818 he published ‘The Scientific Tourist through England, Wales, and Scotland’ (London, 2 vols. 12mo). In this work he noticed ‘the principal objects of antiquity, art, science, and the picturesque’ in Great Britain, under the heads of the several counties. In an introductory essay he dealt with the study of antiquities and the elements of statistics, geology, mineralogy, and botany. The work is too comprehensive to be exhaustive, and its value varies with Walford's personal knowledge of the places he describes.

Walford died at Whitley on 6 Aug. 1833. He published several papers on antiquarian subjects in antiquarian periodicals (e.g. Archæologia, xiv. 24, xvi. 145–50; Vetusta Monumenta, iii. pt. 39; Linnean Soc. Trans. lix. 156), and left several manuscripts, including a history of Birdbrook in Essex and another of Clare in Sussex.

[Wright's Hist. of Essex, i. 611; Gent. Mag. 1833, ii. 469.]

WALHOUSE, afterwards, EDWARD JOHN, first (1791–1868). [See .]

WALKDEN, PETER (1684–1769), presbyterian minister and diarist, born at Flixton, near Manchester, on 16 Oct. 1684, was educated at a village school, then at the academy of James Coningham, minister of the presbyterian chapel at Manchester, and finally at some Scottish university, where he graduated M.A. He entered his first ministerial charge on 1 May 1709 at Garsdale, Yorkshire, which he quitted at the end of 1711 to become minister of two small congregations at Newton-in-Bowland and Hesketh Lane, near Chipping, in a poor and sparsely inhabited agricultural part of Lancashire. There he remained until 1738, when he removed to Holcombe, near Bury in the same county. In 1744 he was appointed to the pastorate of the tabernacle, Stockport, Cheshire, and remained there until his death on 5 Nov. 1769. He was buried in his own chapel, and his son Henry wrote a Latin epitaph for his gravestone.

His diary for the years 1725, 1729, and 1730, the only portion which has survived, was published in 1866 by William Dobson of Preston. It presents a vivid and curious picture of the hard life of a poor country minister of the period, and has suggested to Mr. Hall Caine some features of his character of Parson Christian in the ‘Son of Hagar.’ Passages from his correspondence and commonplace books have also been printed by Mr. James Bromley in the ‘Transactions’ of the Historic Society of Lancashire and Cheshire (vols. xxxii. xxxvi. xxxvii.).

He was twice married: first, to Margaret Woodworth, who died in December 1715; his second wife's name is not known. He had eight children, of whom one, Henry, was a minister at Clitheroe, and died there on 2 April 1795.

WALKELIN or WALCHELIN (d. 1098), bishop of Winchester, was a Norman by birth, and is said to have been a kinsman of the Conqueror (Rudborne, in Anglia Sacra, i. 255, who also says that he was a famous doctor of theology of Paris). He was probably one of the clergy of the cathedral church of Rouen, for Maurilius (d. 1067) knew him well and spoke highly of him, and he was one of William's clerks. On the deposition of Archbishop [q. v.] in 1070 he was appointed by the king to the see of Winchester, which Stigand held in


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Smith v. McCool

ERROR to the Circuit Court for the Northern District of Illinois. The case was twice argued in this court: once at December Term, 1869, and now again in December Term, 1872.

Messrs. G. F. Harding and H. M. Weed, for the plaintiff in error; Messrs. J. B. Hawley and G. C. Lanphere, contra.

Mr. Justice SWAYNE stated the case, and delivered the opinion of the court.

title: Smith v. McCool


text: Talk:Smith v. McCool

title: Talk:Smith v. McCool


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Smith v. McCool/Opinion of the Court

The action in the court below was ejectment. The plaintiff in error was the plaintiff there. A like action between the same parties for the same premises was heretofore decided by this court, and is reported in 1st Black, 459. In that case the jury found a special verdict, which is set out in the statement of the case by the reporter. This court held that the plaintiff had no title at the commencement of the suit, and upon that ground reversed the judgment, and remanded the cause with directions to the court below to enter a judgment upon the special verdict for the defendant, which was accordingly done. Smith, the plaintiff in that action, subsequently instituted the case now before us, upon a title alleged to have been acquired since the commencement of the former suit. Upon the trial in this case, he offered in evidence the special verdict in the former case, to prove the heirship of one of the parties under whom he claimed. The evidence was objected to by the counsel for the defendant, and excluded by the court. The plaintiff excepted and has brought this ruling here for review.

A verdict without a judgment in a case like this is of no validity, either as an estoppel or as evidence. To give efficacy to a verdict, general or special, it must be followed by a judgment, and when offered to establish any fact, such fact must have constituted, in whole or in part, the foundation of the judgment which was rendered. Greenleaf says: 'It is only where the point in issue has been determined that the judgment is a bar. If the suit has been discontinued, or the plaintiff becomes nonsuit, or for any other reason there has been no judgment of the court upon the matter in issue, the proceedings are not conclusive.' The matter must have become res judicata.

If the judgment originally rendered upon the special verdict here in question had still subsisted, the case would be a different one. But that judgment was reversed. The reversal took away all efficacy from the verdict. It is true this court ordered a judgment to be entered upon it in favor of the defendant, but that was not upon the ground that the verdict showed title in the defendant, but because it showed there was none in the plaintiff. The judgment for the defendant followed as a matter of course. It was, in effect, a judgment veredicto non-obstante, or of nonsuit. Instead of giving the findings its sanction, and resting upon them as its foundation, the judgment denied their efficacy and repelled them as immaterial. This suit was brought upon an after-acquired title. The causes of action in the two cases are as distinct from each other as if the latter were brought to recover a different tract of land.

In the leading case of the Duchess of Kingston, Lord Chief Justice De Grey said:

'From a variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction directly upon the point, is as a plea, a bar, or as evidence conclusive between the same parties, upon the same matter directly in question in another court; secondly, that the judgment of the court of exclusive jurisdiction directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose. But neither the judgment of a concurrent nor exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred from argument.'

The authority of this case it is believed has never been controverted. But what in such cases is 'directly upon the point,' 'what came collaterally in question,' and what was 'incidentally cognizable,' are questions upon which the adjudications are wide asunder. The cases maintaining the broadest, and those the narrowest, views are unmerous. They are collected and ably analyzed in the American note to Doe v. Oliver and The Duchess of Kingston's Case in 2 Smith's Leading Cases.

As the proper determination of the case before us does not require the consideration of this subject, we forbear to enter upon its examination.

Under the circumstances we think the special verdict, and the proceeding upon it in the case in which the verdict was rendered, may be regarded as not unlike a demurrer to evidence. In such cases there is an admission of record of all the facts proved, of those which the evidence tends to prove, and of those which may be fairly inferred from it. The party demurring relies upon the law arising upon the facts thus presented. The facts so spread on the record are never evidence for or against either party in another suit. Here the special verdict performed the same office as such a demurrer.

The defendant's counsel insisted upon the legal proposition ultimately sustained by this court-that, conceding the facts to be as found, the plaintiff was not entitled to recover in that action. He may well have been, and doubtless was, less careful to introduce his full evidence, and to contest the facts found, including the one which the verdict was offered in this case, to prove, than he would have been but for the confident assurance that they were all immaterial in respect to the judgment to be given, which he claimed must be in favor of his client.

As there could be no special plea owing to the form of the action, the verdict, if admissible, must have been held to work an estoppel as to all the facts found. Its effect would have been the same as if it could have been, and had been, specially pleaded. This must have taken the defendant by surprise, and been very harsh in its effect. It would, doubtless, have tended to defeat rather than promote the ends of justice. The ruling of the court which required the plaintiff to prove the heirship aliunde subjected him to no hardship. If the fact were as found by the special verdict there could be no difficulty in his proving it, as it was proved before. If the fact were otherwise, to admit the estoppel would have involved the sacrifice of truth and justice to a technicality, and have subjected the defendant to a grievous loss, which he ought not to be required to bear. The parties were properly allowed to stand in the second action in all respects upon a footing of equality, as they stood in the first.

Upon the whole case we are of opinion that the learned judge decided correctly in rejecting the evidence. There are other grounds disclosed in the record, upon which, in the view of some members of the court, a judgment of affirmance might well be placed; but as we are unanimous in the views expressed, it has been deemed unnecessary fully to consider them.

JUDGMENT AFFIRMED.

title: Smith v. McCool/Opinion of the Court


text: Talk:Smith v. McCool/Opinion of the Court


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Specht v. Howard

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

Mr. D. K. McRae, for the plaintiff i error; Messrs. R. M. Corwine and Quinton Corwine, contra.

Mr. Justice SWAYNE stated the case, and delivered the opinion of the court.

title: Specht v. Howard


text: Talk:Specht v. Howard

title: Talk:Specht v. Howard


text:
Specht v. Howard/Opinion of the Court

The defendants in error were the plaintiffs in the court below. The action was upon a promissory note made by Jehl & Brother to Specht, and by him indorsed to Howard, Sanger & Co., the plaintiffs. The makers and indorser lived in Memphis. The indorsees lived in the city of New York, and the note was made and indorsed there. No place of payment was mentioned in the note. At its maturity the makers were sought in the city of New York, and not being found, the note was protested for non-payment, and notice was given by mail to the indorser. Upon the trial, after proof of the protest and notice, the plaintiffs offered to prove that at the time the note was drawn, it was agreed between the makers, and Howard, Sanger & Co., that it should be made payable in the city of New York, and that the place of payment was omitted by the mistake of the draughtsman. Specht objected to the admission of the testimony. The objection was overruled and he excepted. The agreement and mistake were proved. Specht then offered to prove that he had not consented that the note should be made payable in New York. The testimony was rejected and he excepted. He then asked the court to rule that the plaintiffs' evidence showed such a change in his contract of indorsement as discharged him from liability. The court refused so to rule, and he excepted. The court then withdrew from the jury the evidence relating to the parol agreement, and ruled that the proof of demand and notice was insufficient to create any liability on the part of the defendant. Specht excepted to the withdrawal of the evidence as to the parol agreement. The plaintiffs then proved that, after the maturity of the note, Specht, with a full knowledge of the defective demand and notice, promised to pay the note. No objection was made to the admission of this testimony, nor to the charge of the court upon the subject. The jury found for the plaintiffs and judgment was rendered accordingly.

The error complained of is, that the court withdrew from the jury the evidence touching the parol agreement as to the place of payment made contemporaneously with the drawing and execution of the note. The plaintiff in error insists that, being a surety, it altered and discharged his contract.

The evidence was improperly admitted and was properly withdrawn. The agreement was a nullity and could not in any wise affect the rights of either of the parties. 'It is a firmly settled principle that parol evidence of an oral agreement alleged to have been made at the time of the drawing, making, or indorsing of a bill or note, cannot be permitted to vary, qualify, or contradict, to add to or subtract from the absolute terms of the written contract.' An agreement between the creditor and principal must, to exonerate the surety, be one 'binding in law upon the parties.'

JUDGMENT AFFIRMED.

title: Specht v. Howard/Opinion of the Court


text: Talk:Specht v. Howard/Opinion of the Court


text:
Water Company v. Ware

ERROR to the Circuit Court for Minnesota; the case being thus:

The city of St. Paul, desiring to have water-pipes laid along the streets of the city, passed an ordinance authorizing the St. Paul Water Company, an incorporated company, so to lay them. But as it was necessary that large excavations of the earth should be made along the streets, and considerable blasting of rock below, the ordinance in one of its sections, the 6th, thus provided:

'The said water company expressly agrees to protect all persons against damages by reason of excavations made by them in the said city, in laying pipes, and to keep the said excavations properly guarded by day and night, and to become responsible for all damages which may occur by reason of the neglect of their employees in the premises, and that the streets and highways in said city shall not be unnecessarily obstructe or incumbered in laying said pipes.'

The water company accepted the ordinance. It did not, however, do any work itself or by its own servants, but made a contract in writing with one Gilfillan to do the work for them. Under this contract, Gilfillan himself superintending the work every day, certain excavations, drillings, and blastings were made in different streets of the city.

While these operations were going on in one of the streets, a certain Ware, driving his horse and wagon in it, was much injured, owing to his horse taking fright at a steam-drill in the street, put there to drill the rocks that it was necessary to remove, and suddenly and without notice set in motion. He accordingly sued the company for damages.

His witnesses having given evidence tending to show that the accident was owing to the fact that the excavations were not 'properly guarded' and that the highways were 'unnecessarily obstructed and incumbered,' disclosed in cross-examination the fact above mentioned, to wit, that the company did not do any work itself or by its servants, but that it had farmed out its engagement to lay the pipes, and that all that had happened, had happened while the contractor was thus in the discharge of his contract.

Thereupon (the plaintiff resting) the defendant asked the court

'To direct the jury to return a verdict for the defendant, without requiring the defendant to enter upon a defence, upon the ground that the negligence, if any, found as the cause of injury to plaintiff, was the negligence of the servants and employees of said contractor, and not of the defendant or any of its servants and employees.'

This motion the court denied, saying:

'The action is brought upon the principle which is settled, at least in the Federal courts, that when a person (company or corporation included) is engaged in a work, in the ordinary doing of which a nuisance necessarily occurs, the person is liable for any injury that may result to third parties from carelessness or negligence, though the work may be done by a contractor, and although the plaintiff might have sustained an action against the city of St. Paul, it is his right to seek his remedy against the party who created the nuisance.'

The defendant then gave evidence to show that the plaintiff had been driving carelessly, and, the case being rested, asked the court to charge—

'1. That under the evidence in the case they must find a verdict for the defendant.

'2. That if the injury complained of was caused solely by the negligence or misconduct in the manner of doing the work of the employees of the contractor, then the defendant is entitled to a verdict.'

The court refused to give either charge, and the defendant excepted. Verdict and judgment having been given for the plaintiff, $2200, the defendant brought the case here.

Mr. W. H. Peckham, for the plaintiff in error:

The court below proceeded upon the theory either that under the contract between the water company and its contractor, the persons employed by the contractor to do the work, were the servants of the company, and that the company was therefore liable for their misconduct or negligence; or that having caused the work to be done, it was liable for such misconduct or negligence, though the relation of master and servants did not exist between it and the persons doing the work.

But the legal relation of master and servants did not exist between the water company and the persons in charge of the machinery and doing the work. They were in the employ of the contractor. He was exercising an independent employment, and was their superior. A party is not liable for the misconduct or negligent acts of the employees of one to whom he lets a job of work to be done by contract. This is settled by the New York case of Blake v. Ferris, and by other cases.

Mr. M. Lamprey, contra:

The case of Storrs v. The City of Utica is in point, and the reasoning of the court seems particularly applicable to this case. Blake v. Ferris, cited on the other side, is reviewed, and the doctrine that the city is not liable for injuries caused by negligence in the improvement of streets, because it has employed a contractor to do the work, is distinctly overruled.

But we need not enter on any discussion whatever of that formerly vexed question. Such a discussion is wholly unnecessary, and in view of other grounds on which the court below doubtless rested its views-grounds alike obvious and impregnable-such a discussion might be called irrelative.

The effect of section six of the ordinance, which is both an agreement with the public and a law, is to make the water company liable, when injury results from negligence of an employ e, whether such employ e is a contractor or workman. The company agrees to protect all persons against damages by means of excavations; to keep the excavations properly guarded; to become responsible for all damages; and not to unnecessarily obstruct the streets. It cannot rid itself from the primary liability imposed by this ordinance, by letting the work to a contractor. The liability exists, no matter how the work is done. The contractor is an employ e of the company within the meaning of this section.

Reply: 1. The ordinance was intended solely for the indemnity of the city, and one not a party to it can derive no rights under it.

2. The water company, under the ordinance, did not agree to become responsible for the misconduct of the persons doing the work, but only for damages by reason of excavations,' and to keep such excavations properly guarded,' and to become responsible for all damages which might occur by reason of the neglect of their employees in the premises; that is, by reason of the neglect of its employees to keep its excavations properly guarded. The object of the provision was to bind the company to do, in respect to the public streets, what, as between the city and the public, would be primarily the duty of the city to do. The only change it made between the city and the company was to give to the city a contract right to hold the company for any damages it might be compelled to pay, by reason of the existence of the excavations in the street.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Water Company v. Ware


text: Talk:Water Company v. Ware

title: Talk:Water Company v. Ware


text:
Water Company v. Ware/Opinion of the Court

Injuries of a physical nature were received by the plaintiff through an obstruction in one of the public streets of the city of St. Paul, occasioned, as he alleges, by an employ e of the corporation defendants, for whose acts they are responsible, and he instituted the present suit to recover compensation for those injuries. Service was made, and the defendants appeared, and the parties went to trial, and the verdict and judgment were for the plaintiff; and the defendants excepted and sued out this writ of error.

Evidence was introduced by the plaintiff tending to show that where the accident occurred was a public street of the city; that the defendants entered into an engagement with the authorities of the city to make the necessary excavations in the streets, and to lay therein suitable pipes and complete the work as stipulated in a certain contract, to introduce a supply of water into the city for the use of the inhabitants, and that their employ e or contractor was at work at the time making the excavations and laying the pipes; that the excavations in the street where the plaintiff was injured extended from the intersection of Eighth Street to the intersection of Ninth Street, and that the excavation with the embankments made on the sides of the same by throwing out the earth, occupied the greater part of the w dth of the street, leaving on the east side little more than a passageway of sufficient width for a one-horse carriage; that in making the excavation the workmen found it necessary to drill and blast, employing the steam drill for drilling, and blasting, as usual, with gunpowder; that the engine which propelled the drill was three feet in diameter and was elevated six or seven feet above the surface of the ground, and at the time of the accident to the plaintiff it stood near the intersection of Eighth Street with the street in which the plaintiff was passing; that the plaintiff, with one other person, was riding in a carriage drawn by one horse, and having turned from Ninth Street into the street where the accident occurred, the plaintiff, with the other person in the carriage, was driving along down the narrow passageway, on the east side of the street, when the persons in charge of the engine suddenly, and without giving any notice or warning of their intention, set the engine and drill in operation, causing a loud noise which frightened the plaintiff's horse and caused him to shy and turn upon the sidewalk, overturning the carriage and injured the plaintiff.

Due care, it is alleged, was used by the plaintiff, as when he left the intersecting street and passed into the street where the accident occurred the engine and drill were not in operation, nor was there any barricade or signal of any kind to indicate that there was any danger, or that any special precaution was necessary except what was suggested by the embankment and the narrowness of the street; and the evidence also tended to prove that neither the engine nor the drill was seen by the plaintiff or by the person in the carriage with him until the horse of the plaintiff was within ten feet of the place where the engine and drill were situated, and that it was at that moment that they were put in operation by those in charge of the work, and that one of the workmen ran into the street and threw up his arms as if to stop the horse, which had the effect to make him still more unmanageable.

Having introduced evidence tending to prove the foregoing facts the plaintiff rested, and the defendants moved the court to direct the jury to return a verdict in their favor upon the ground that the negligence proved, if any, as the cause of the injury to the plaintiff was the negligence of the contractor in charge of the work, or his servants or employees, and not of the defendants, or their servants or employees, which motion the court then and there denied, and remarked that 'the action is brought upon the principle, which is well settled in the Federal courts, that where a person or corporation is engaged in a work in the ordinary doing of which a nuisance necessarily occurs, the party is liable for any injury that may result to third parties from carelessness or negligence, even though the work may be done by a contractor,' and it makes no difference even if the party, in a case like the present, might sustain an action against the municipal corporation, as it is his right to seek his remedy against the party who created the nuisance or his immediate employees, to which ruling and decision the defendants then and there excepted.

Testimony was then introduced by the defendants tending to show that the injury mentioned in the declaration was not caused by any neglect or misconduct of the persons in charge of the work, but wholly by the reckless and negligent driving of the plaintiff, and the person with him in the carriage.

Prayers for instruction to the jury were presented by the defendants in substance and effect as follows:

(1.) That the court instruct the jury that upon the whole evidence they must find their verdict for the defendants.

(2.) That if the injury to the plaintiff was caused solely by the negligence or misconduct of the employees of the contractor in doing the work, then the defendants are not liable.

Both of those requests were refused, and the rulings of the court in that behalf, together with the refus l of the court at the close of the plaintiff's case to direct a verdict for the defendants, present the principal questions in the case for the decision of the court. Other prayers for instruction, involving the same principles, were also presented by the defendants, which were also refused, and the rulings are embraced in the exceptions.

Cities and towns are usually required by statute to keep their streets and highways safe and convenient for travellers, and if they neglect so to do, in a case where that duty is imposed by law, and suffer the same to get out of repair and defective, and any person as a traveller receives injury through such defect, either to his person or property, the delinquent corporation is responsible in damages to the injured party. Such a party, however, cannot maintain an action against the corporation grounded solely on the defect and want of repair in the highway, but he must also allege and prove that the corporation had notice of the defect or want of repair and that he was injured, either in person or property, in consequence of the unsafe and inconvenient state of the highway, as the duty to repair in such cases is a duty owed to the public, and consequently if one person might sue for his propertion of the damages for the nonperformance of the duty, then every other member of the community would have the same right of action, which would be ruinous to the corporation, and for that reason it was held at common law, that no action founded merely on the neglect to repair would lie.

Nor will an action lie in such a case at the present time; but it is settled law, by the highest authority of the country from which the common law is derived, that where it appears that the corporation is under a legal obligation to repair the way in question, and that such obligation is a matter of general and public concern, and also that the place in question is out of repair and that the plaintiff has sustained some peculiar damage in his person or property by means of such defect or want of repair, that the corporation, if the means of performing the duty to make the repairs are within their control, is liable to compensate the injured party for the injury which he suffered from their neglect. Since the decision in Mayor of Lyme-Regis v. Henley, the case last referred to, many decisions to the same effect have been made by the State courts in this country approving that rule and applying it in all similar controversies.

Grant all that and still the defendants deny that the rule established by those authorities furnishes any support to the rulings of the Circuit Court, as they, the defendants, were mere contractors to make the excavations and lay the pipes, and they insist that the persons responsible to the plaintiff, if any, are the persons whom they employed to do the work and who were in charge of it at the time the plaintiff was injured, and they deny that they in any view of the case can be held answerable for the neglect and carelessness of those who had contracted with them to make the excavations and lay the pipes, and who had charge of the engine and steam drill, the operation of which frightened the horse of the plaintiff.

Concede that proposition and it would follow that the rulings in question are incorrect; but the evidence exhibited in the record shows that the defendants agreed with the municipal authorities to protect all persons against damages by reason of the excavations made by them preparatory to laying the pipes, and to keep the work proper y guarded by day and night, and to be responsible for all damages which 'may occur by reason of neglect of their employees in the premises,' and that the streets should not be unnecessarily obstructed or incumbered in doing the work. Such an agreement would not acquit the municipality of an obligation, otherwise attaching, to keep the streets safe and convenient for travellers, but it may well be held that a party injured through a defect or want of repair in such a street, occasioned by the neglect or carelessness of such a contractor in doing the work, or of those for whose acts he is responsible, may, at his election, sue the contractor for redress or pursue his remedy against the municipality, as it is clear that the contractor, in case of a recovery against the latter, would be answerable to the municipality as stipulated in his agreement. Improvements of the kind, such as making excavations and laying pipes for gas or for sewers, are made by municipal corporations, under circumstances where the corporation is immediately responsible for the defect or want of repair in the street, without any other party being answerable over to them for any damages they may have to pay to a traveller who may be injured through such a defect or want of repair, as where they appoint their own superintendent and the work is done by their order and directions. Other cases arise where improvements are constructed by contractors, in which the municipality is not responsible at all, at where the improvement is of such a character that a prudent man would not find it necessary to incumber or obstruct the street in any respect or for any purpose, as in that case it would be clear that the defect or want of repair which occasioned the injury was solely the result of neglect and carelessness on the part of the contractor, and not of any culpable fault of the officers of the municipality. Contractors with such a corporation for such a purpose may or may not be responsible to a third party, in a case like the present, according to the circumstances, but it is not necessary to enter much into the discussion of that topic in this case, as the evidence shows that the defendants agreed to become responsible for all damages which may occur by reason of neglect of their employees in the premises. Tested by these considerations it is quite clear that the case must be viewed just as it would be if the work had been done by the defendants, and not by the sub-contractors, or as if the work had in all respects been done under the directions of the defendants as the immediate contractors with the municipal corporation.

Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agreed and was authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party. Exactly the same view was advanced by this court when that case was brought here by the first writ of error, in which the court said that if the nuisance necessarily occurs in the ordinary mode of doing the work the occupant or owner is liable, but if it is from the negligence of the contractor or his servants, then he should alone be responsible. Common justice requires the enforcement of that rule, as if the contractor does the thing which he is employed to do the employer is as responsible for the thing as if he had done it himself, but if the act which is the subject of complaint is purely collateral to the matter contracted to be done, and arises indirectly in the course of the performance of the work, the employer is not liable, because he never authorized the work to be done. It would be monstrous, said Lord Campbell, if a party causing another to do a thing were exempted from lia ility for the act merely because there was a contract between him and the person immediately causing the act to be done, which may be accepted as correct if applied in a case where the work contracted to be done will necessarily, in its progress, render the street unsafe and inconvenient for public travel. More than one party may be liable in such a case, nor can one who employs another to make such an excavation relieve himself from liability for such damages as those involved in the case before the court by any stipulation with his employ e, as both the person who procured the nuisance to be made and the immediate author of it are liable.

Apply these rules to the case before the court, and it is clear that they are sufficient to dispose of all the exceptions and to show that there is no error in the record.

JUDGMENT AFFIRMED.


text: Talk:Water Company v. Ware/Opinion of the Court


text:
Walbrun v. Babbitt

ERROR to the Circuit Court for the District of Missouri.

Babbitt, assignee in bankruptcy of Marks Mendelson, brought trover against Walbrun & Co. in the court below, to recover the value of a stock of merchandise sold by the bankrupt to one Summerfield, and by the latter to the said defendants. The ground of the action was that the several transfers were frauds on the bankrupt law under the 35th section thereof-a section in these words:

'If any person, being insolvent or in contemplation of insolvency or bankruptcy, within six months before the filing of the petition by or against him, makes any payment, sale, assignment, transfer, conveyance, or other disposition of any part of his property to any person who then has reasonable cause to believe him to be insolvent, or to be acting in contemplation of insolvency, and that such payment, sale, assignment, transfer, or other conveyance, is made with a view to prevent his property from coming to his assignee in bankruptcy, or to prevent the same from being distributed under this act, or to defeat the object of, or in any way impair, hinder, impede, or delay the operation and effect of, or to evade any of the provisions of this act, the sale, assignment, transfer, or conveyance shall be void, and the assignee may recover the property or the value thereof as assets of the bankrupt; and if such sale, assignment, transfer, or conveyance is not made in the usual and ordinary course of business of the debtor, the fact shall be prim a facie evidence of fraud.'

The facts of the case which were undisputed, were thus:

In November, 1868, Mendelson, doing business in Kingsville, a small town in the interior of Missouri, as a retail country merchant, wrote to one Summerfield, who was his brother-in-law, living in St. Louis and engaged there in the furniture business, to bring some money and come and buy him out. Summerfield at once went to Kingsville, and took, in currency, money enough for the purpose. On his arrival there Mendelson told him he was desirous of selling his stock, because he could not succeed in the business in which he was engaged, and wished to deal in furniture and hardware. An account of stock was taken, and Summerfield paid Mendelson for it after deducting 25 per cent. off the cost price. Soon after this purchase Summerfield, leaving Mendelson in possession of the store, went to Chillicothe, Missouri, and told Walbrun & Co., a firm there with which he had some acquaintance, of his pur hase of the stock of goods at 25 per cent. below cost, because the owner wanted to go into the furniture business, and that, as he only desired to make 5 per cent., he would resell to them at 20 per cent. below cost. They agreed to take the goods at his offer, as they needed some of the articles to replenish their stock, if they came up to the account that was given of them. Accordingly, one Ritter, a member of the firm, went back of Kingsville with Summerfield. They found Mendelson still in charge of the store. Some of the goods were boxed up and some on the shelves. In making his purchase, Ritter made no inquiry of the pecuniary condition of either Mendelson or Summerfield. Both parties lodged at Mendelson's house. The morning after arriving they commenced examining the goods at the store, and found some of them in bad condition, of which Ritter complained. After measuring several pieces, to see if the stock conformed to the inventory, Summerfield excused himself from further service on the ground that he had to return to St. Louis, as he had just learned of the sickness of his wife, and told Ritter to take the goods home with him, and if the inventory was defective he would make it right. Ritter replied that he thought that if they would work hard they could soon get through, but finally yielded to Summerfield's persuasions, and, with the assistance of Mendelson, boxed the goods up and shipped them to Chillicothe. Ritter paid the full inventory price at the agreed rate, and both parties left Kingsville that night for their respective homes. Mendelson's debts at the time of this sale were about $9000. This stock of goods was all the property worth naming that he had. The price given by Summerfield for it was $5373.

On the 24th of December, 1868, on petition of his creditors, Mendelson was adjudicated a bankrupt. The money received by him from Summerfield for the goods did not reach his creditors, as, according to his own statement, he lost it.

There were other facts and circumstances connected with the transactions which invited inquiry, but, as they were represented differently in the sworn testimony of the different witnesses, they are not given as any part of the case. All the witnesses agreed in the case as stated above, and as this court considered, there was no necessity, for the purposes of this suit, of going beyond it.

The court below gave several instructions bearing, some of them, on these disputed parts of the case. These instructions were assigned for error, though in several points not unfavorable to the defendant. But on the whole case, embracing the undisputed parts of the suit (the case as above given), the court directed the jury to find for the plaintiff. Verdict and judgment went accordingly. The defendants now brought the case here.

Mr. T. J. Durant, for the plaintiff in error; Mr. Nathaniel Myers, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Walbrun v. Babbitt


text: Talk:Walbrun v. Babbitt

title: Talk:Walbrun v. Babbitt