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Abbott v. Essex Company Tenants/Opinion of the Court

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

The part of the will which gave rise to the question is stated in the opinion of the court.

It was admitted by the parties that said testator died in the year 1775; that his will was duly proved August 5, 1776; that his two sons, John Kittredge and Jacob Kittredge, survived him; that said John Kittredge died in the year 1826, never having been married; that said Jacob Kittredge died in the lifetime of his brother John, on July 15, 1807, leaving the following children, namely: John Kittredge, his oldest child, who died, without ever having had issue, on the 10th of January, 1823; Jacob Kittredge, his next oldest child, who died December 18, 1831, having had issue one child, who is the demandant, Hannah Kittredge Abbott; Thomas W. Kittredge, his next child, who is now alive; Hannah Kittredge, his next child, who died intestate on the 28th of October, 1815, never having had issue; George W. Kittredge, his next child, who died July 4, 1836, intestate, having had issue one child, Jacob Kittredge, who is now alive; and William H. Kittredge, his last child, who died intestate on the 1st of October, 1849, never having had issue. The marriage of the demandants was also admitted, and that the surviving son of Jacob Kittredge, the devisee named in said will, and also his surviving grandchild, had, before the commencement of the suit, released and conveyed to demandants all their interest and title in the demanded premises.

The demandants thereupon submitted, and requested the judge to instruct the jury, that, by the said will of John Kittredge, his two sons John and Jacob, therein named, took and became seised as to the real estate therein devised to them in equal moieties of an estate tail general, with cross remainder in fee-simple, it being material and necessary, to enable the demandants to maintain the issue on their part, to prove that estates tail as aforesaid were so devised by the said will. But the judge refused so to instruct the jury, but did instruct them that, under said will, the testator's said sons, John Kittredge and Jacob Kittredge, took and became seised of an estate in fee simple, and that the share of the one of the said sons who should first die without issue in the lifetime of the other of said sons, would in that event go over to said other son by way of executory devise.

A writ of error brought up this ruling for review.

The case was argued by Mr. Abbott and Mr. Fessenden, for the plaintiffs in error, and Mr. Merwin and Mr. Loring, for the defendants.

The points made by the counsel for the plaintiffs in error were the following, namely:--

The plaintiffs in error claim that the estate which the two sons, John and Jacob, took under this will were estates in fee tail general, with cross remainders in fee-simple.

The rule by which this court is to be governed, in the interpretation of this will, is the rule of law which has been established by the highest judicial tribunal of the State or district in which the land lies, or the suit originated. Hinde v. Vattier, 5 Pet. U.S. Rep. 397; Jackson v. Chew, 12 Wheat. 153; Bank of the United States v. Daniels, 12 Pet. 33; Webster v. Cooper, 14 How. 488.

1. The testator, by the first clause in the will, gave to John and Jacob an estate for life only; and, although he directed the executor, John, to see that the debts and legacies were paid out of that part of the estate given to John and Jacob, this was a charge upon the estate or fund given to John and Jacob, and not upon the sole executor personally; and therefore the charge does not enlarge the estate for life to an estate in fee-simple. 2 Jarman on Wills, 126, and note; Denn v. Slater, 5 D. & E. 335; Doe v. Owens, 1 Barn. & Adolph. 318; Denn v. Mellor, 5 D. & E. 558; Clark v. Clark, 1 Crompt. & Mees. 39; Lithgow v. Kavanagh, 9 Mass. 161; Cook v. Holmes, 11 Mass. 528; Wait v. Belding, 24 Pick. 129; Parker v. Parker, 5 Met. 134; Gardner v. Gardner, 3 Mason, 209; Legh v. Warrington, 1 Br. Parl. C. 511; Williams v. Chitty, 3 Ves. jr. 552; Miles v. Leigh, 1 Atk. 573.

2. Having given each of his two sons an estate for life, the next item in the will (namely, the proviso 'that if either of said sons, John or Jacob, should happen to die without any lawful heirs of their own,') enlarges the estate for life to an estate tail in each of the two sons; and, by the use of such language, the testator intended an indefinite failure of issue. Purefoy v. Rogers, 2 Saunders, 380; Sonday's Case, 9 Coke, 127; King v. Rumball, Cro. Jac. 448; Chaddock v. Crowley, Cro. Jac. 695; Holmes v. Meynel, T. Ray. 452; Forth v. Chapman, 1 P. Will. 663; Brice v. Smith, Willes's Rep. 1; Hope v. Taylor, 1 Burr, 268; Doe v. Fonnereau, Doug. 504; Denn v. Slater, 5 Term Rep. 335; Doe v. Rivers, 7 Ibid. 276; Doe v. Ellis, 9 East, 382; Goodridge v. Goodridge, 7 Mod. 453; Tenney v. Agar, 12 East, 253; Kirkpatrick v. Kirkpatrick, 13 Ves. jr. 476; Barlow v. Slater, 17 Ves. 479; Romily v. James, 6 Taunt. 263; Atkinson v. Hutchinson, 3 P. Will. 258; Sheffield v. Orrery, 3 Atk. 282; Lampley v. Blower, Ibid. 396; Shepperd v. Lessingham, Amb. 122; Gordon v. Adolphus, 3 Bro. P. C. 306; Geering v. Shenton, Cowper, 410; Peake v. Pegden, 2 T. R. 720; Cadogan v. Ewart, 7 Ad. & E. 636; Walter v. Drew, Com. Rep. 292; Dansey v. Griffiths, 4 M. & S. 61; Wallers v. Andrews, 2 Bing. 196; Crooke v. De Vandes, 9 Ves. 197; Elton v. Eason, 19 Ves. 77; Todd v. Duesbury, 8 M. & W. 514; Sampson v. Sampson, 4 N. C. 333; 2 Fearne, Ex. Dev. 5 Ed. 200; Bamford v. Lord, 14 Com. Bench, 707; Newton v. Griffiths, 1 Har. & Gill. 111; Bells v. Gillespie, 5 Rand, 273; Broaddus v. Turner, Ibid. 308; Sydnor v. Sydnor, 2 Munf. 263; Cruger v. Hayward, 2 Dessaus, 94; Erwin v. Dunwood, 17 Serg. & Rawle, 61; Caskey v. Brewer, Ibid. 441; Heffner v. Knepper, 6 Watts, 18; Patterson v. Ellis, 11 Wend. 259; Hunter v. Haynes, 1 Wash. 71; Lillebridge v. Adie, 1 Mason, 235; Dallam v. Dallam, 7 Harr. & John. 220; Eichelberger v. Barnitz, 9 Watts, 447; Waples v. Harmon, 1 Harring. 223; Jiggetts v. Davis, 1 Leigh. 368; Ide v. Ide, 5 Mass. 500; Hawley v. Northampton, 8 Mass. 3; Nightingale v. Burrill, 15 Pick. 104; Adams v. Cruft, 14 Pick. 25; Parker v. Parker, 5 Met. 134; Wight v. Thayer, 1 Gray, 286.

3. Where, by one clause in a will, an estate for life, or an estate in fee-simple, is given by plain words, if it appear in other parts of the will, by explanatory words or by implication, that it was the intent of the testator in such devise that the issue should take the estate in succession after him, then the life estate is enlarged in the one case, and the estate in fee reduced in the other, to an estate tail. Nightingale v. Burrill, 15 Pick. 104; Parker v. Parker, 5 Met. 134.

4. The words 'lawful heirs of their own,' mean 'heirs of the body lawfully begotten;' and in this will they are technical, and used as words of limitation, restraining the devise to a certain class of heirs, namely, the heirs of the body of either John or Jacob. See authorities under second proposition.

5. That the meaning and intention of the testator, by the use of the words 'first decease,' was, the one that should so first decease; namely, should first decease without heirs of the body lawfully begotten.

6. The testator, by the use of the words 'other survivor,' meant and intended 'other' simply, and thereby showed his especial reference to the children or heirs of the body of either of the devisees; meaning and intending, if either left heirs of the body at any time, they were to take their father's estate according to the will of the testator. 2 Jarman on Wills, 609, 735; Doe v. Wainewright, 5 Durn. & E. 427; Anderson v. Jackson, 16 Johns. 415; Cole v. Sewall, 2 Conn. & Law. 344; Aiton v. Brooks, 7 Sim. 204; Harmon v. Dickinson, 1 Brown C. C. 82.

7. In a devise of real and personal property, the law makes a distinction as to the two estates, in the construction of devisees; and, when technical language is used, the devisee takes an absolute estate in the personal, and a limited estate, or an estate tail, in the real property. Forth v. Chapman, 1 P. Will. 663; Bamford v. Lord, 14 Com. Bench, 707, in which all the English cases are collated; Hawley v. Northampton, 8 Mass. 3; Nightingale v. Burrill, 15 Pick. 104; Adams v. Cruft, 14 Pick. 25; Parker v. Parker, 5 Met. 134.

8. The use of the word 'estate' in the first clause, or in other parts of the will, is not for any technical or specific purpose, but simply directory and descriptive. It was used to designate the fund only out of which the debts and legacies were to be paid. Gardner v. Gardner, 3 Mason, 209, and other authorities cited under first proposition.

9. If the testator had not referred to John and Jacob any further than to have given them all his land, &c., to be equally divided between them, and directed John to see that the debts and legacies were paid, they might each have taken a fee-simple by implication; but, having controlled this intent by the proviso in the will, that if either should happen to die without heirs of the body, this creates an estate tail in each son, with cross remainders in fee-simple absolute. Parker v. Parker, 5 Met. 134; Bells v. Gillespie, 5 Rand. 273; Caskey v. Brewer, 17 Serg. & Rawle, 441.

10. If the testator's sons, John and Jacob, took and became seised of an estate in fee-simple, the share of him who should first die without issue would, in that event, go to the other, if living, by way of executory devise; and if the other son was not living, it would go to his heirs.

The defendants submit, as the proper construction of this will, that it gave to the two sons a fee-simple conditional, with executory devises over, and not an estate tail general, with cross remainders in fee.

That each son took a fee-simple, upon this single contingency: that if the son who died first left no issue, then that his share was to pass to the surviving brother, by way of executory devise.

I. By the first clause, independent of that which devised the estate over, a fee-simple absolute was given to the two sons.

1. Although the devising clause contains no words of inheritance, yet it charges personally one of the devisees with the payment of debts and legacies, by reason of the estate devised, and therefore carries a fee by implication. Lithgow v. Kavenagh, 9 Mass. 165, 166; Wait v. Belding, 24 Pick. 139.

And as the intent of the testator is clear, that both sons should take the same estate, if John, the executor, took a fee, then Jacob did also. Roe v. Dow, 3 M. & S. 518. sy(a.) The direction to pay the debts and legacies out of the estate devised, creates a charge upon the devisee personally, as well as upon the estate. Doe v. Richardson, 3 Term R. 356; Doe v. Snelling, 5 Ibid. 87; Spraker v. Van Alystyne, 18 Wend. 205; Gardner v. Gardner, 3 Mason, 178; 2 Jarman on Wills, 172.

(b.) Moreover, the charge is here imposed 'in consideration of what is given the said sons,' clearly importing that a personal liability was intended.

(c.) The rule is the same, although the devisee charged is named as executor. Goodtitle v. Maddern, 4 East, 496; Doe v. Holmes, 8 Term R. 1; Doe v. Phillips, 3 B. & Adolph. 753; Dolton v. Hewer, 6 Madd. Ch. R. 9; 2 Jarman on Wills, 172.

2. One of the legacies given is the maintenance of Sarah Dwinnel, a granddaughter, 'out of that part of my estate I give to my sons, John and Jacob Kittredge, until she arrives to the age of eighteen years.' (Record, p. 6.)

If life estates only were given to the two sons, then the manifest intention of the testator might be defeated, by their dying before she reached that age.

3. The testator directs the legacies to be paid 'out of that part of my estate I have given to my two sons.'

It is well settled, that a devise of one's 'estate' includes all the testator's interest in the subject devised; and this is true, although it is accompanied with words descriptive only of the corpus of the property. Godfrey v. Humphrey, 18 Pick. 537; Paris v. Miller, 5 M. & S. 408; Gardner v. Harding, 3 J. B. Moore, 565; 2 Jarman on Wills, 181, 182.

If then, this expression, 'this part of my estate,' &c., had been used in the clause making the gift, it would clearly have carried a fee.

But the testator's intention to give a fee is as fairly inferable from his subsequently describing what he has given, as 'that part of my estate,' &c., as if he had used those words in making the gift.

If the intention to give a fee appears from any part of the will, a fee will pass.

II. The next inquiry is, whether the fee-simple thus given is reduced by the succeeding clause of the will, to an estate tail by implication: Item, 'It is my will that if either of my said sons should happen to die without any lawful heirs of his own, then the share of him who may first decease, shall accrue to the other survivor and his heirs.'

This depends upon whether the testator has provided for a definite or indefinite failure of issue.

If he intended a failure of issue at the death of the first taker, then the will gives a fee-simple conditional, and not an estate tail; and the limitation over, not being too remote, is good as an executory devise. Pells v. Brown, Cro. Jac. 590, and cases cited post.

The defendants contend that this is the proper construction of the will.

The demandants rely upon this rule of construction, namely, that, in a devise, words referring to the death of a person without issue are construed to import an indefinite failure of issue, instead of a failure at the death of such person. 2 Jarman on Wills, 418.

But this rule, taken with its proper qualifications, will not justify the construction which the demandants seek to give this will. This involves,--

1. A brief examination of the rule itself, and of some of its established qualifications.

2. The inquiry, what, if any, is the rule of construction as settled in Massachusetts; and how far it conforms to the rule as established elsewhere.

3. A consideration of the provisions of this will, and the inquiry whether, under the application of the rule thus ascertained, they do not plainly refer to a definite failure of issue.

I. The rule itself is entirely artificial, giving an arbitrary meaning to certain forms of expression, as 'dying without issue,' and the like. Its application, therefore, should be limited to these settled forms of expression. 2 Jarman on Wills, 418.

1. It is generally conceded that the rule violates the natural meaning of language, and in most cases tends to defeat rather than to give effect to the intentions of testators. 2 Jarman on Wills, 418; Keily v. Fowler, Ch. J. Wilmot Notes, &c. 298; Hall v. Chaffee, 14 N. H. 216, and cases post.

Insomuch, that in England and several of the States, the rule has been abolished by express legislation. 1 Vict. c. 26, § 29, New York R. St.; Virginia, 1819; Miss. 1824; N. C. 1827.

2. Its qualifications.

A limitation 'if T. died without issue, living his brother W., then to W.' refers to a failure of issue at the death of T. Pells v. Brown, Cro. Jac. 590.

So also the words, if one die, 'leaving no issue behind him,' Porter v. Bradley, 3 Term R. 143; and, if one leave no issue, then life estates, 'to the survivor or survivors.' Roe v. Jeffrey, 7 Term R. 585.

The limitation, in bequests, 'to the survivor,' has been uniformly held in England to denote a definite failure of issue. Hughes v. Sayer, 1 P. Wm. 534; Ranelagh v. Ranelagh, 2 M. & K. 441; Radford v. Radford, 1 Keen, 486; Lewis on Perpetuities, 218.

Although it may not have been so held in reference to devisees of real estate. See Lewis on Perp. 221.

In the United States, it is settled by numerous authorities, that a limitation, 'to the survivor,' imports a definite failure of issue, in gifts both of real and personal estate. Fosdick v. Cornell, 1 Johns. R. 440; Anderson v. Jackson, 16 Johns. 382; Jackson v. Chew, 12 Wheat. 153; Wilkes v. Lyon, 2 Cowen, 333; Cutter v. Doughty, 23 Wend. 513; Dawson v. De Forest, 3 Sandf. Ch. R. 456; Heard v. Horton, 1 Denio, 165; Dew v. Schenk, 3 Hals. 29; Cordle v. Cordle, 6 Munf. 455; Rapp v. Kapp, 6 Barr. 45; Johnson v. Currier, 10 Barr. 498; Morgan v. Morgan, 5 Day, 517; Couch v. Gorham, 1 Conn. 36.

II. The rule in Massachusetts is, that although a devise to one and his heirs, and if he die without issue, then to another, will create an estate tail, with remainder over, yet that this construction will be controlled by other words, showing that the testator referred to a failure at the death of the first taker. Hawley v. Northampton, 8 Mass. 41.

And in conformity with the American doctrine, it has been held, that a limitation to the survivor, denotes a definite failure of issue. Richardson v. Noyes, 2 Mass. 56; See Ide v. Ide et al. 5 Mass. 500.

The case of Parker v. Parker, 5 Met. 134, cannot be considered as having established a rule of construction which controls this case, for these reasons. 12 Wheat. 153.

1. The construction of a will by a state court does not constitute a rule of decision for this court, unless it has been long acquiesced in as a rule of real property. Lane et al. v. Vick et al. 3 How. 476; Comer v. Brown, 16 How. 354.

2. That decision was made on the ground that the testator did not intend to give more than an estate tail to the sons; whereas, in this case, as already shown, the sons were intended to have a fee.

3. That decision was based upon erroneous principles, and is obviously the result of inadvertence.

(a.) The rule of Purefroy v. Rogers, 2 Saund. 388, on which the opinion was founded, is not a rule of construction, favoring the presumption that the particular estate is an estate tail, rather than a fee-simple. See also Doe v. Morgan, 3 Term R. 763; Nightingale v. Burrill, 15 Pick. 111.

(b.) The opinion proceeded on the mistaken idea, that a limitation over on the failure of issue, necessarily implied that the first taker was to have an estate tail, without referring to the decisive distinction, whether the limitation was upon a definite or indefinite failure of issue. (p. 139.) But see Nightingale v. Burrill, 15 Pick. 113.

(c.) The conclusion, that the will created an estate tail, was entirely inconsistent with what the court had previously declared, p. 137, to be 'the manifest object of the testator;' and that was, to give a fee-simple conditional.

4. That decision cannot control the construction of this will, because the single question upon which this depends, was neither passed upon, nor adverted to; namely, whether a definite or indefinite failure of issue was intended.

If it had been, it is utterly improbable that the court would have come to the result they did; for it is undoubted law everywhere, that a limitation over upon the first taker's dying without issue, and under twenty-one years of age, is clearly upon a definite failure of issue. Pells v. Brown, Cro. Jac. 590; Glover v. Monckton, 3 Bingh. 13; Doe v. Johnson, 16 L. & E. 550; Lippett v. Hopkins, 1 Gall. 454; Barnitz v. Casey, 7 Cranch, 456; Ray v. Enslin, 2 Mass. 554.

5. The provisions of the will in that case, and of the will in this are materially different.

III. This will provides for a definite failure of issue.

1. The language, 'if either son should happen to die without heirs,' denotes that the testator was contemplating a contingency which would occur, if at all, at the death of such son.

2. The limitation is 'to the other survivor.'

According to the decision supra, a limitation to the 'survivor' denotes a definite failure of issue.

But here the limitation is 'to the other survivor.'

The term survivor, as here employed, cannot be construed to mean 'other;' for, as the term 'other' is also used, such a construction would deprive 'survivor' of all force.

This language shows that the testator referred to the other, personally, as the survivor.

3. It is clear, that a fee-simple, and not an estate tail, is devised over, 'to the survivor and his heirs.'

It is highly improbable that the testator intended, in the event of the limitation over taking effect, that the son should hold one-half the estate in fee-simple, and the other in fee-tail.

4. It is 'the share' of him who may die first, that is devised over.

(a.) The term 'share,' in a devise, denotes all one's interest, and will pass a fee. Paris v. Miller, 5 M. & S. 408; Doe v. Bacon, 4 M. & S. 366.

(b.) Here, a fee-simple is clearly devised over, and it is called 'the share' of the first taker. This certainly implies that that 'share' was a fee-simple.

(c.) The true import of this language is, and the understanding of the testator undoubtedly was, that what is given over, (i. e. a fee-simple,) is just exactly what the first taker would have held, had he not died without issue.

5. The devise includes both real and personal estate.

(a.) It is very certain that the testator did not intend to limit over the personal property, on an indefinite failure of issue, and from uniting the two in the same clause and in the same contingency, the inference is equally as strong as to the real estate. Porter v. Bradley, 3 Term R. 146, and Richardson v. Noyes, 2 Mass. 63, are direct authorities.

(b.) A distinction has indeed been sometimes made between real and personal estate, but the soundness of this distinction is denied by the weight of authority. Vide cases Supra.

6. Lastly, it is the share of him 'who may first decease,' that is devised over.

(a.) This language cannot be taken literally, for then the share of the one dying first would go over, although he left issue.

(b.) Nor does it mean merely the share of him who may die without issue; for this would disregard the plain provision of the will, that it must be the share of him who dies first.

(c.) The testator's meaning is clear; the share of him 'who may first decease,' is devised over, 'if he happens to die without lawful heirs,' (i. e. issue;) but in no event is any other share devised over, but his who may first decease.

These words, in connection with the fact that the limitation is to the survivor, demonstrate that the testator referred to the period of the death of the first taker.

Mr. Justice GRIER delivered the opinion of the court.

The questions submitted to our consideration in this case arise on the construction of the will of John Kittredge, deceased, and on the following devise to his sons:--

'Item. I give to my two sons, namely, John and Jacob Kittredge, all my lands and buildings in Andover aforesaid, excepting the land I gave to my son Thomas aforesaid, which buildings consist of dwelling-houses, barns, corn-house, grist-mill, and cider-mill, all of every denomination; also, all my live stock of cattle, horses, sheep and swine, and all my husbandry utensils of every denomination, and all my tools that may be useful for tending the mills aforesaid; and also all my bonds and notes of hand and book accounts, together with what money I may leave at my decease; and my wearing apparel, I give the same to my said sons, John and Jacob Kittredge, to be equally divided between them; and in consideration of what I have given my said sons, John and Jacob Kittredge, the executor of this testament, hereinafter named, is hereby ordered to see that all my just debts and funeral charges, together with all the legacies in this will mentioned, be paid out of that part of my estate I have given to my two sons, John and Jacob Kittredge, to whom I give each one bed and bedding.

'Item. It is my will, that if either of my said sons, namely, John and Jacob Kittredge, should happen to die without any lawful heirs of their own, then the share of him who may first decease shall accrue to the other survivor and his heirs.'

On the trial, the demandants requested the court to instruct the jury, 'that John and Jacob took the real estate therein devised in equal moieties of an estate tail general, with cross-remainders in fee-simple.' But the court instructed the jury, 'that the testator's said sons, John and Jacob, took an estate in fee-simple, and that the share of the one of the sons, who should first die without issue, in the lifetime of the other, should, in that event, go over to the other son, by way of executory devise.' To this instruction the plaintiffs excepted, and now contend:--

1. That the testator, by the first clause of his will, gave to John and Jacob an estate for life only.

2. That the next clause of the will enlarges the estate for life to an estate-tail in each of the two sons, and, by the use of such language, the testator intended an indefinite failure of issue.

The defendants, on the contrary, maintain that, independent of the last clause, by which the estate is given over, the sons took a fee-simple. And, secondly, that the clear intention of the testator is, that both real and personal estate should pass on a definite contingency, namely, the decease of one brother without issue in the lifetime of the other.

There is, perhaps, no point of testamentary construction which has undergone such frequent discussion, and is so fruitful in cases not easily reconciled, as that now brought under our consideration. This has arisen, in a great measure, from the discrepancy between the popular acceptation of the phrases, 'if he die without issue,' 'in default of issue,' and similar expressions, from the established legal acceptation of them in courts of justice. It is often necessary to construe these expressions as conveying an estate tail by implication, in order to carry out the evident general intent of the testator. Such is, or ought to be, the object of all rules of interpretation; but court rules, however convenient in the disposition of cases where the intention is doubtful, cannot claim to be absolute or of universal application. Hence it has been said, 'that courts have been astute to defeat the application of this rule of construction, harsh in itself, and often producing results contrary to the testator's intention.' If wills were always drawn by counsel learned in the law, it would be highly proper that courts should rigidly adhere to precedents, because every such instrument might justly be presumed to have been drawn with reference to them. But, in a country where, from necessity or choice, every man acts as his own scrivener, his will is subject to be perverted by the application of rules of construction of which he was wholly ignorant.

The rule laid down in Purefoy v. Rogers, 2 Saund. 388, 'that where a contingency is limited to depend on an estate of freehold which is capable of supporting a remainder, it shall never be construed to be an executory devise,' has been received and adopted in Massachusetts.

In England, and in some of the States here, it has been abolished by legislative interposition, as harsh and injurious. This rule, however, has never been construed, either in England or this country, to include cases where the title of the first taker is a fee-simple, and the contingency is definite.

In the case of Pells v. Brown, Cro. Jac. 590, where there was a devise 'to A in fee, and, if he die without issue living, then C shall have the land,' it was held to be an executory devise to C, on the contingency of A dying in the lifetime of C without issue. There is no necessary conflict between this case and that of Purefoy v. Rogers. It is true, also, that this rule has been applied where the first taker had an estate in fee; and it is conceded, 'that, unless there are expressions or circumstances from which it can be collected that these words, 'without issue,' are used in a more confined sense, they are to have their legal sense of an indefinite failure of issue;' but whenever such 'expressions or circumstances' show the intention of the testator that the estate is to go over only on a definite contingency, courts will give effect to such intention. Notwithstanding the expressions in Plunket v. Holmes, Sid. 47, derogatory of the case of Pells v. Brown, it has always been considered 'a leading case, and the foundation of this branch of the law.' See Williams's Saunders, 388, b, in note.

In Porter v. Bradley, 3 T. R. 143, where lands were devised to A and his heirs, and if he die leaving no issue behind him, then over, it was decided that the limitation over was good by way of executory devise; and Lord Kenyou acknowledges the case of Pells v. Brown to be 'the foundation and magna charta of this branch of the laid' deciding that the words, 'leaving no issue behind him,' showed clearly that the testator did not contemplate an indefinite failure of issue.

In the case of Roe v. Jeffery, 7 T. R. 589, where the devise was 'to A and his heirs, and in case he should depart this life and leave no issue, then to B, C, and D, and the survivor or survivors of them, share and share alike,' it was held that the devise to B, C, and D, was a good executory devise. In delivering the opinion of the court in that case, Lord Kenyou observes: 'This is a question of construction, depending on the intention of the party; and nothing can be clearer than if an estate be given to A in fee, and by way of an executory devise, an estate be given over, which may take place within a life or lives in being, &c., the latter is good by way of executory devise. The question, therefore, in this and similar cases is, whether, from the whole context of the will, we can collect when an estate is given to A and his heirs forever, but if he die without issue, then over, the testator meant without issue living at the death of the first taker. The rule was settled as long ago as in the reign of James I., in the case of Pells v. Brown. That case has never been questioned or shaken, and is considered as a cardinal point on this head of the law.'

Without referring to any more of the numerous English and American cases brought to our notice by the learned counsel, of like tenor, it will be sufficient to notice the case of Richardson v. Noyes, 2 Mass. 56. There the devise was 'to my three sons, A, B, and C, all my other lands, &c.; also my will is, that if either of them should die without children, the survivor or survivors of them to hold the interest or share of each or any of them so dying without children as aforesaid;' and it was held to pass an estate in fee-simple, determinable on the contingency of either of them dying without issue, and vesting by way of executory devise. See also the case of Ray v. Enslen, 2 Mass. 554. These cases fully adopt the principles of the English cases we have just referred to. The case of Parker v. Parker, 5 Metc. 134, has been quoted as containing a contrary doctrine; but it does not appear that the question of definite or indefinite failure of issue was made by the counsel or adverted to by the court in the decision.

Our inquiry must be, therefore, from an examination of the whole context of this will:--

1. Whether, independent of the second clause, by which the estate is limited over, the sons took an estate in fee-simple, or only a life estate; and,

2. Whether he intended to give over the share of each son to the other, on the contingency of his death, without issue living at the time of his decease, or upon an indefinite failure of issue.

1. There are no words of inheritance, in this first clause of the devise, to John and Jacob; but such words are not absolutely necessary in a will to the gift of a fee. The subject of this devise is described as 'that part of my estate.' The word 'estate,' or 'that part of my estate,' has always been construed to describe not only the land devised, but the whole interest of the testator in the subject of the devise; thus, a devise of 'my estate, consisting of thirty acres of land, situate, &c.,' will carry a fee. Moreover, the legacy given for the maintenance of Sarah Devinny, 'to be paid out of that part of my estate given to John and Jacob,' would be defeated by their death before she arrived at the age of eighteen, if the devise to them was a life estate only. The intention of a testator must be drawn from the whole context of his will. And it is not necessary to look alone at the words of the gift itself to ascertain the intention of the testator as to the quantum of the estate devised, if it can be gathered, from expressions used in any part of it, what he supposed or intended to be the nature and extent of it. It will not admit of a doubt, also, that the testator intended that both of his sons should have the same estate in the devised premises, which were 'to be equally divided between them.' John is charged personally, in respect of the estate given him, with the payment of all the debts and legacies. The testator calls it the 'consideration' to be paid for that part of his estate given to his two sons; and though John was appointed executor, whose duty it became, as such, to see to the payment of the debts and legacies, the charges are to be paid by him at all events out of the estate devised to him and Jacob, and not out of the rents and profits only. By their acceptance of the devise, they became personally liable. In such cases, it is well settled that the devisee takes a fee, without words of inheritance.

On this point, therefore, we are of opinion that John and Jacob each took a fee in their respective 'share' or moiety of the estate devised to them.

2. It remains to consider the effect of the second clause of the will, which is in these words: 'It is my will, that, if either of my said sons, namely, John or Jacob, should happen to die without any lawful heirs of their own, then the share of him who may first decease shall accrue to the other survivor and his heirs.'

Viewing this clause free from the confusion of mind produced by the numerous conflicting decisions of courts, and untrammelled by artificial rules of construction, we think that no two minds could differ as to the clear intention of the testator. By 'lawful heirs of their own,' he evidently meant lineal descendants or 'issue.'

The contingency contemplated is as definite as language can make it-'if either son should happen to die without heirs of their own during the life of the other.' The person to take, on the happening of this contingency, is precisely described-'the other survivor.' It is true, that cases may be found which decide that the term 'survivor' does not of itself necessarily import a definite failure of issue, and no doubt there are many cases where it would be necessary to disregard the obvious import of this term, in order to carry out the general intent of a testator, otherwise apparent; but a large number of English, and nearly all the American, cases acknowledge the force of this term as evidence of the testator's intending a definite contingency. The other words of this clause, connected with it, clearly describe a definite contingency, and the individual who is to take on its happening: 'the share of him who shall first decease without heirs shall accrue to the other survivor;'-on the death of one, the other is to take-a definite contingency and a definite individual.

Again, it is the 'share,' or the estate previously given, not of him who dies without issue, generally, but of him who may first decease, that is given over to the other survivor. This 'share' also consisted of personal and real property. As to the former, the testator could certainly not mean an indefinite failure of issue, yet both, personalty and realty, are within the same category, and, as one 'share,' they are subject to the same contingency. It is said to be a rule of construction, that the words 'dying without issue,' will be construed to mean 'an indefinite failure of issue' as to real estate; but with regard to personalty, it shall be taken to mean 'a failure at the death.' There are several cases to this effect. Lord Kenyon, in speaking of them in Roe v. Jeffery, very justly remarks that 'the distinction taken in Forth v. Chapman, 1 P. Wms. 663, that the very same words in a will should receive one construction when applied to one portion of the devise, and another construction as applied to another, is not reconcilable with reason.' Without making an array of cases, we may state that many of the English, and nearly all the American cases, seem to concur in the truth and force of this observation; and consider a 'share' of an estate, consisting of both realty and personalty, given over on a contingency to the 'survivor,' as clear evidence that the testator did not intend an indefinite failure of issue. A rule of construction which would give different meanings to the same words, in the same sentence, could only be tolerated where, from the whole context of the will, it is evident that without such construction the general intent of the testator as to the disposition of his realty would be frustrated.

Lastly, construing this clause as providing for an indefinite failure of issue, and as vesting each of the sons with an estate tail by implication, the survivor would take an estate in fee-simple in his brother's share, while he had an estate in tail in his own; a result most improbable, which could hardly have been contemplated by the testator, and which ought not to be imputed to him without clear expressions indicating such an intention.

On the whole, we are of opinion that the instructions given to the jury by the court below are correct, and that the judgment should be affirmed.


text: Talk:Abbott v. Essex Company Tenants/Opinion of the Court

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


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Rh particle of evidence that any of them received idolatrous worship. Bowerman's Nose is the most remarkable, perhaps. Carrington, the poet of Dartmoor, thus describes it:— It stands up, a core of hard granite, forty feet high, in five layers above a "clitter," the softer masses that have fallen off from it. Had it ever been venerated as an idol, the worshippers would assuredly have done something towards clearing this clitter away, so as to give themselves a means of easy access to their idol, and some turf on which to kneel in adoration.

Another remarkable pile is Vixen Tor, presenting from one point a resemblance to the Sphinx. Not a single relic of early man is in its immediate neighbourhood. We can hardly doubt that prehistoric man was not as big a fool as we suppose him, and that he was quite able to see that Bowerman's Nose and Vixen Tor were natural objects as truly as the tors on the hilltops. The logan stones on the moor are numerous, and these, also, are natural formations. The granite weathers irregularly; a hard bed alternates with one that is soft, and the wind and rain eat into the more crumbling layer and gnaw it away, till the

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McLaughlin v. Swann

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

The case is stated in the opinion of the court.

The instructions given by the circuit court to the jury, and which were excepted to by the plaintiff, were as follows:--

And the court directed the jury that the plaintiff was not entitled to recover, and their verdict must be for the defendants:

1. Because the rights of the parties claiming as cestui que trusts, under the deed of April 15, 1840, and the rights of those claiming an interest in the surplus after the cestui que trusts are satisfied, cannot be adjusted and determined in the proceeding by attachment against the trustees in a court of law, and there is no evidence that any specified sum ascertained by the accounts of the trustees, or by judicial decision, was due to the Chesapeake and Ohio Canal Company at the time this attachment was laid, or at any time since, after satisfying all legal or equitable claims on the fund placed in the hands of the trustees.

2. Because there is no evidence that anything remained in the hands of the trustees, after satisfying the trust mentioned in the deed, more than sufficient to satisfy the claim of the Alexandria Canal Company and others, having prior and superior claims on the fund to the plaintiff in this attachment.

3. The plaintiff having become a party to the proceedings in the chancery court of Maryland, in the suit in which this fund was in litigation, and the trustees in the fund being all before the court, he is concluded by its decision while the decree remains in force.

It was argued in this court by Mr. Davis, for the plaintiff in error, and by Mr. Campbell, for the defendants.

Mr. Davis made the following points:--

1. That under the circumstance of this case, the process of attachment was a proper process to reach, and affect any surplus in the hands of the trustees remaining after gratifying the trusts of the deed, and not needed to satisfy the demands of others having prior and superior claims on the fund.

2. That there was evidence of a large surplus existing in the hands of the trustees, after satisfying the trusts of the deed, the claim of the Bank of Potomac, and all others superior and prior to the claim of the present plaintiff.

3. That the decree of the court of chancery of Maryland alluded to, cannot prejudice the plaintiff's right to recover, if it can be shown that at the time of passing the decree, the trustees had in hand a surplus, which was liable to be affected by process of attachment.

Under the first head he cited 5 Har. & John. 312-5; 3 Har. & McH. 535, and maintained that every equitable interest in Maryland, except a trust in process of execution, is liable to be attached under the act of 1715. See act of 1831, c. 321, which is a declaratory act.

The trust had expired in this case, and an action for money had and received could have been maintained against the trustees.

Mr. Campbell contended, that when the attachment was issued, the whole surplus was in controversy between the Chesapeake Bank and the Bank of Potomac.

How could the court below settle the conflict between these rival claimants, neither of them before it, or weigh in legal scales their respective equities?

Case v. Roberts, 3 Eng. Comm. Law, 172. The action for money had and received, must not be turned into a bill of equity for the purpose of discovery. While the matter remains in account and is charged with the specific trust, the action for money had and received will not lie. Roper v. Holland, 30 Eng. Comm. Law, 37; Edwards v. Bates, 49 Ib. 598; Pardoe v. Price, 13 Mees. & Welsby, 282, 283; Bartlett v. Dimmond, 14 Ib. 49; Tiernan v. Jackson, 5 Pet. 597; Duvall v. Craig, 2 Wheat. 56; Rathbone v. Stocking, 2 Barb. Sup. Ct. R. 135, and the cases referred to in the court's opinion.

The second instruction of the circuit court was correct, for the evidence showed that the surplus, after the redemption of the script, was all claimed by the Bank of Potomac and Chesapeake Bank.

McLaughlin was made a party to the proceeding in chancery and answered. The reservation avails nothing under the circumstances. This cause began in 1841, and was continued from term to term till 1851. He might have claimed the surplus in chancery. If he did not choose to assert his rights the decree must bind him.

Mr. Justice CURTIS delivered the opinion of the court.

title: McLaughlin v. Swann


text: Talk:McLaughlin v. Swann

title: Talk:McLaughlin v. Swann


text:
McLaughlin v. Swann/Opinion of the Court

This is a writ of error to the circuit court of the United States for the district of Maryland.

The plaintiff in error having recovered a judgment in that court against the Chesapeake and Ohio Canal Company, sued out a writ of foreign attachment against the lands and tenements, goods, chattels, and credits of that company, and on the 4th day of June, 1841, it was laid in the hands of James Swann and John S. Gittings. The garnishees having appeared and answered certain interrogatories, pleaded that at the time of laying the attachment they had not any goods, chattels, or credits of the company in their hands, and upon the trial a bill of exceptions was taken, from which it appears that the plaintiff offered evidence tending to prove, that, by an indenture, bearing date on the 15th day of April, 1840, between the company of the first part, and the garnishees, together with William Gunton, (who, residing out of the district, was not served with process,) of the second part, the party of the first part transferred to the party of the second part, two hundred and forty-eight bonds of the State of Maryland, each for two hundred and fifty pounds sterling, in trust to pay, from the proceeds thereof, such promissory notes of the company, described in a schedule annexed to the indenture, as should be presented to the trustees at the Chesapeake Bank in Baltimore, within six months from the date of the indenture; and at the end of the six months, to pay to the company any money, and to deliver to the company any of the bonds which might then remain in their hands, whether all the notes mentioned in the schedule should then be paid or not.

The plaintiff further offered evidence to prove, that Gittings, with the assent of the other trustees, sold the bonds prior to the 28th day of February, 1841, for the aggregate sum of $344,117 26/100; and that the sums received by him for interest on the bonds amounted to $16,958 62/100, amounting in the whole to the sum of $361,075 88/100. The disbursements and payments made by the trustees in the execution of the trust, appeared to have been $324,825 18/100, leaving a balance due from the trustees, after the complete execution of the trust declared in the indenture, of $36,250 70/100.

Upon this state of facts, we think the plaintiff entitled to a verdict.

The trust was for the payment of specified debts, which should be presented to the trustees before a fixed day. The payments made, and the sums received in execution of the trust, were liquidated sums ascertained with entire precision. The trust was completely executed, and the balance remaining in the hands of the trustees was a sum certain.

Under these circumstances, an action at law for money had and received could be sustained by the canal company against the trustees, they not having sealed the deed.

In Case v. Roberts, (Holt's N. P. C. 500,) Burrough, J., states the rule on this subject to be: 'If money is paid into the hands of a trustee for a specific purpose, it cannot be recovered in an action for money had and received, until that specific purpose is shown to be at an end. If the plaintiff show that the specific purpose has been satisfied, that it has absorbed a certain sum only, and left a balance, such balance (the trust being closed) becomes a clear and liquidated sum, for which an action will lie at law.' This statement of the rule has been approved, and in conformity with it many cases decided. See, among others, English v. Blundell, 8 Car. & P. 332; Edwards v. Bates, 7 Man. & Gr. 590; Allen v. Impett, 8 Taunt. 263; Weston v. Barker, 12 Johns. R. 276.

This case, thus presented, comes within that rule; and as an action at law could have been sustained by the canal company to recover the liquidated balance remaining in the hands of the trustees, the plaintiff could subject that balance to the satisfaction of his judgment, by attaching it as a credit in the hands of the trustees.

But, in addition to the evidence above referred to, the bill of exceptions contains the following statement concerning evidence introduced by the defendants:--

'That on the 25th of June, 1841, a bill was filed in the court of chancery, in Maryland, against the said garnishees and the Chesapeake and Ohio Canal Company, and others, by the Bank of Potomac, claiming as assignee of the surplus which remained after satisfying the trusts under the deed of April, 1840, and praying an account and settlement of the trust, which bill is in the following words: It being agreed between the parties that the said bill and other portions of the pleadings or proceedings in that case, hereinafter mentioned to have been produced and read, shall be received in evidence and have the same effect as if the whole record was produced, and such pleadings or proceedings read from it.'

Then follows a copy of the bill, of an opinion of the acting chancellor, and of the final decree in the cause. McLaughlin, the present plaintiff in error, is not made a party to this bill. How he came into the cause as a party does not appear. If by the amended bill, he ceased to be a party before the final decree, because that decree recites that the amended bill was dismissed by the complainants before the final submission of the cause to the chancellor. Nor does it appear for what purpose McLaughlin was made a party, or whether he at any time submitted his rights, as an attaching creditor, by a process out of the circuit court of the United States, to a court of the State of Maryland, in a suit in equity, begun after his attachment was laid. But it does not appear to be material to consider either of these particulars, because the final decree concludes with this clause:--

'And it is further adjudged, ordered, and decreed, that this cause be, and the same is hereby dismissed as against the defendant, Patrick McLaughlin, and this decree is passed without prejudice to the rights of the said McLaughlin against any and every of the parties to this suit.'

Either because the chancellor deemed it improper to pass on his rights acquired by an attachment under process of a court of the United States, or for some other reason, he has made a decree, which in express terms leaves McLaughlin in all respects unaffected by that suit.

We think, also, that so much of the record of the chancery suit as is in this record, though it was properly read in evidence to prove that such proceedings were had, and such decree made, is not evidence of any facts found by the chancellor, either in his opinion or in the decree.

The bill having been dismissed as against him, and all his rights, as against any and every of the parties, expressly saved, there has been no matter tried or adjudicated as between him and any other party, and he stands, in all respects, as if he had never been a party to the suit.

It was insisted at the argument, that the stipulation already extracted from the bill of exceptions made the chancellor's opinion evidence, as against McLaughlin, of the facts it finds. This was denied by the plaintiff's counsel; and, however probable we may think the inference, that the chancellor's opinion was treated as evidence by the circuit court, with the consent of the plaintiff, yet we cannot say this appears to us judicially, by the bill of exceptions. The stipulation only extends so far as to make the parts of the record, which were read, have the same effect as if the whole record had been put in. The whole record might have properly been put in, to prove what was done and decreed in that suit, valeat quantum. But when it appeared that, so far as respected the plaintiff and his rights, nothing was done or decreed, his rights in this suit could not be affected by anything appearing therein, or deducible therefrom. In our opinion, therefore, the case is presented to us upon the evidence, exptraneous to the record of the state court. Upon that evidence, we think the jury would have been authorized and required to find for the plaintiff; and, consequently, that the instruction given in the court below, that their verdict must be for the defendants, was erroneous.

We express no opinion upon the defences supposed to arise out of the facts found in the opinion of the chancellor. If the facts, which may be proved in defence, on another trial, should amount to a legal defence to an action for money had and received, if brought by the Canal Company, they would also amount to a defence to this attachment. If they only show outstanding equities, in third persons, of such a character that a court of law cannot take notice of them, they must be availed of, if valid, by a bill brought by such third persons against McLaughlin, or by a bill of interpleader by the trustees. The attachment invests in plaintiff with the same right to action which belonged to the Canal Company; and no defence, which could not have been made at law to an action by the company, can be made to the attachment, which is but a substituted mode of pursuing the same right. Wanzer v. Truly, 17 How. 584. So far as respects equitable rights of set-off by the garnishee, a different rule has been followed in Massachusetts. Boston Type Co. v. Mortimer, 7 Pick. 166; Hathaway v. Russell, 16 Mass. 473; Green v. Nelson, 12 Met. 567. And, in the absence of an equitable jurisdiction in that State, there has been, until recently, no mode of giving effect to the equitable rights of the garnishee, or of third persons, save in the process of garnishment, or possibly by an action on the case in some instances. Foster v. Sinkler, 4 Mass. 450; Hawes v. Langton, 8 Pick. 67; Adams v. Cordis, 8 Pick. 260.

But, in other States, it has been held that only legal defences can be made to the attachment. Pennell v. Grubb, 13 Penn. R. 552; Taylor v. Gardner, 2 Wash. C. C. Rep. 488; Loftin v. Shackelford, 17 Alabama, 455; Edwards v. Delaplaine, 2 Harrington, 322; Watkins v. Field, 1 English, 391.

We are not aware that this subject has come under the examination amination of the courts of Maryland in any reported case. But in a State where the legal and equitable jurisdictions are distinct, and in a court of the United States, having full equity powers, we consider that a garnishee should stand as nearly as possible in the same position he would have occupied if sued at law by his creditor; and if he, or any third person, has equitable rights to the fund in his hands, they should be asserted in that jurisdiction which alone can suitably examine and completely protect them.

The judgment of the circuit court is to be reversed, and the cause remanded, with directions to issue a venire facias de novo.


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 1820 and maintained by the British government. Rondebosch, 5 m. from the city, contains some of the finest of the Dutch mansions in South Africa. Less than a mile from the station is Groote Schuur, a typical specimen of the country houses built by the Dutch settlers in the 17th century. The house was the property of Cecil Rhodes, and was bequeathed by him for the use of the prime minister of Federated South Africa. The grounds of the estate extend up the slopes of Table Mountain. At Newlands is Bishop’s Court, the home of the archbishop of Cape Town. More distant suburbs to the south-east are Constantia, with a famous Dutch farm-house and wine farm, and Muizenberg and Kalk Bay, the two last villages on the shore of False Bay. At Muizenberg Cecil Rhodes died, 1902. Facing the Atlantic is Hout’s Bay, 10 m. south-south-west of Wynberg.

Most of the suburbs and the city itself are exposed to the south-east winds which, passing over the flats which join the Cape Peninsula to the mainland, reach the city sand-laden. From its bracing qualities this wind, which blows in the summer, is known as the “Cape Doctor.” During its prevalence Table Mountain is covered by a dense whitish-grey cloud, overlapping its side like a tablecloth.

The Harbour.—Table Bay, 20 m. wide at its entrance, is fully exposed to north and north-west gales. The harbour works, begun in 1860, afford sheltered accommodation for a large number of vessels. From the west end of the bay a breakwater extends north-east for some 4000 ft. East of the breakwater and parallel to it for 2700 ft. is the South pier. From breakwater and pier arms project laterally. In the area enclosed are the Victoria basin, covering 64 acres, the Alfred basin of 8 acres, a graving dock 529 ft. long and a patent slip for vessels up to 1500 tons. There is good anchorage outside the Victoria basin under the lee of the breakwater, and since 1904 the foreshore east of the south pier has been reclaimed and additional wharfage provided. Altogether there are 2 m. of quay walls, the wharfs being provided with electrical cranage. Cargo can be transferred direct from the ship into railway trucks. Vessels of the deepest draught can enter into the Victoria basin, the depth of water at low tide ranging from 24 to 36 ft.

Trade and Communication.—The port has a practical monopoly of the passenger traffic between the Cape and England. Several lines of steamers—chiefly British and German—maintain regular communication with Europe, the British mail boats taking sixteen days on the journey. By its railway connexions Cape Town affords the quickest means of reaching, from western Europe, every other town in South Africa. In the import trade Cape Town is closely rivalled by Port Elizabeth, but its export trade, which includes diamonds and bar gold, is fully 70% of that of the entire colony. In 1898, the year before the beginning of the Anglo-Boer war, the volume of trade was:—Imports £5,128,292, exports £15,881,952. In 1904, two years after the conclusion of the war the figures were:—imports £9,070,757; exports £17,471,760. In 1907 during a period of severe and prolonged trade depression the imports had fallen to £5,263,930, but the exports owing entirely to the increased output of gold from the Rand mines had increased to £37,994,658; gold and diamonds represented over £37,000,000 of this total. The tonnage of ships entering the harbour in 1887 was 801,033. In 1904 it had risen to 4,846,012 and in 1907 was 4,671,146. The trade of the port in tons was 1,276,350 in 1899 and 1,413,471 in 1904. In 1907 it had fallen to 658,721.

Defence.—Cape Town, being in the event of the closing of the Suez Canal on the main route of ships from Europe to the East, is of considerable strategic importance. It is defended by several batteries armed with modern heavy guns. It is garrisoned by Imperial and local troops, and is connected by railway with the naval station at Simon’s Town on the east of the Cape Peninsula.

Population.—The Cape electoral division, which includes Cape Town, had in 1865 a population of 50,064, in 1875 57,319, in 1891 97,238, and in 1904 213,167, of whom 120,475 were whites. Cape Town itself had a population in 1875 of 33,000, in 1891 of 51,251 and in 1904 of 77,668. Inclusive of the nearer suburbs the population was 78,866 in 1891 and 170,083 in 1904. Of the inhabitants of the city proper 44,203 were white (1904). Of the coloured inhabitants 6561 were Malays; the remainder being chiefly of mixed blood. The most populous suburbs in 1904 were Woodstock with 28,990 inhabitants, and Wynberg with 18,477.

History and Local Government.—Cape Town was founded in 1652 by settlers sent from Holland by the Netherlands East India Co., under Jan van Riebeek. It came definitely into the possession of Great Britain in 1806. Its political history is indistinguishable from that of (q.v.). The town was granted municipal institutions in 1836. (Among the councillors returned at the election of 1904 was Dr Abdurrahman, a Mahommedan and a graduate of Edinburgh, this being, it is believed, the first instance of the election of a man of colour to any European representative body in South Africa.) The municipality owns the water and lighting services. The municipal rating value was, in 1880 £2,054,204, in 1901 £9,475,260, in 1908 (when the rate levied was 3d. in the £) £14,129,439. The total rateable value of the suburbs, not included in the above figures, is over £8,000,000. Rates are based on capital, not annual, value. The control of the port is vested in the Harbour and Railway Board of the Union.

Cape Town is the seat of the legislature of the Union of South Africa, of the provincial government, of the provincial division of the Supreme Court of South Africa, and of the Cape University; also of an archbishop of the Anglican and a bishop of the Roman Catholic churches.

 CAPE VERDE ISLANDS (Ilhas do Cabo Verde), an archipelago belonging to Portugal; off the West African coast, between 17° 13′ and 14° 47′ N. and 22° 40′ and 25° 22′ W. Pop. (1905) about 138,620; area, 1475 sq. m. The archipelago consists of ten islands:—Santo Antão (commonly miswritten St Antonio), São Vicente, Santa Luzia, São Nicolao, Sal, Boa Vista, Maio, São Thiago (the St Jago of the English), Fogo, and Brava, besides four uninhabited islets. It forms a sort of broken crescent, with the concavity towards the west. The last four islands constitute the leeward (Sotavento) group and the other six the windward (Barlavento). The distance between the coast of Africa and the nearest island (Boa Vista) is about 300 m. The islands derive their name, frequently but erroneously written “Cape Verd,” or “Cape de Verd” Islands, from the African promontory off which they lie, known as Cape Verde, or the Green Cape. The entire archipelago is of volcanic origin, and on the island of Fogo there is an active volcano. No serious eruption has taken place since 1680, and the craters from which the streams of basalt issued have lost their outline.

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Steamboat New York v. Rea

THIS was an appeal from the circuit court of the United States, for the southern district of New York.

The district court decreed that the libellant should recover against the steamboat the sum of $3,875 and costs.

The circuit court affirmed this decree, and gave judgment for $4,174 and costs.

It was submitted upon printed arguments in this court by Mr. Morton and Mr. Cutting, for the appellants, and Mr. Betts, for the appellee.

The arguments upon both sides consisted chiefly in comments upon the evidence.

Mr. Justice NELSON delivered the opinion of the court.

title: Steamboat New York v. Rea


text: Talk:Steamboat New York v. Rea

title: Talk:Steamboat New York v. Rea


text:
Steamboat New York v. Rea/Opinion of the Court

This is an appeal in admiralty from a decree of the circuit court of the United States for the southern district of New York.

The libel was filed by the owner of the Brig Sarah Johanna against the steamboat, for a collision in the harbor of the city of New York. The brig was lying at anchor in the North River, off pier No. 6, nearer to the Jersey than the New York shore, her bow heading up the river, there being at the time a strong ebb-tide, and wind heavy from the northwest. The collision occurred between four and five o'clock in the morning of the 4th of November, 1850, the river at this place being filled with vessels at anchor in the vicinity of the brig. The morning considerably dark.

The steamboat was passing down the North River to get round to her berth in the East River. She had in tow eleven heavily loaded barges and canal boats, the first tier being three abreast on each side of her, the other boats astern, towed by lines attached to this first tier. The steamer, with the tows, occupied a breadth of some three hundred feet, and from three hundred and fifty of four hundred feet in length, her bows projecting some sixty feet ahead of the tows. She entered this thicket of vessels, at anchor in the river, at a rate of speed from eight to ten miles an hour, and, as we have seen, with a strong ebb-tide and heavy northwest wind; and, while passing through them, the centre tow-boat of the tier on the starboard side struck the bow of the brig, smashing her timbers, cut-water, and bowsprit, and otherwise doing great damage to the vessel.

The captain of the steamboat admits that he saw the brig from three to five hundred feet off before the collision, but, as he could not stop his boat in less than within ten or fifteen of her lengths, the collision was inevitable. He admits, also, that it would have required all her power to have stopped within that distance, as it would have depended upon the way the tow-boats were managed. The rear tows were not so fastened, he observes, as to prevent their swinging, and could not have been. He gave orders instantly, on discerning the brig, to starboard the helm, and passed the same order to the tow-boats. This was undoubtedly the proper order at the time, under the circumstances, but with the rate of speed of the steamer, and encumbered as she was with her tows, it was unavailing.

Upon this statement of the facts in the case, it is manifest the steamer was grossly in fault in entering this crowd of vessels at anchor in the harbor, at the rate of speed with which she was moving, especially in the night time. A collision with some of them thus lying in her trail was the natural, if not inevitable, result. Lying at anchor, they were disabled from adopting any measure to get out of her way, and encumbered as she was with tows, she was not in a condition to adopt any prompt and effective manoeuvre to avoid the danger. The continuance of the speed, therefore, under the circumstances of wind and tide, and encumbrance and embarrassment of the tows, was the grossest carelessness and neglect of duty, without the semblance of excuse. Indeed, the term carelessness hardly expresses the degree of fault; under the circumstances, it seems almost to have been wilful, or what, in degree, should be regarded as equally criminal.

The steamboat was also in fault in not having a look-out at the time, properly stationed. The captain admits that no person was stationed on the deck as a look-out. He claims to have been on that duty himself, although he stood upon the upper deck, some fifteen feet above the water, and sixty feet from the bow of the steamer, and was at the time engaged in giving directions for the management of her and her tows.

We have had occasion frequently to lay down the rule, that it is the duty of steamboats traversing waters where sailing vessels are often met with, to have a trustworthy and constant look-out, stationed at a part of the vessel best adapted for that purpose, and whose whole business was to discern vessels ahead, or approaching, so as to give the earliest notice to those in charge of the navigation of the vessel; and that the omission, in case of a collision, would be prima facie evidence of fault on the part of the steamer. 12 How. 459; 10 Ib. 585.

It is insisted, however, on the part of the steamboat, that the brig was also in fault, in not showing a light while lying at anchor. We have looked carefully into the evidence on this branch of the case, and are satisfied that the clear weight of it is in favor of the libellants, and that a proper light was kept constantly in the fore-rigging, some seventeen feet above the deck.

Again, it is claimed that, admitting the brig had a light sufficient, within the requirements of the admiralty rule, still, she was in fault in not showing a light, in conformity with the statutes of New York, which required it should be suspended in the rigging, at least twenty feet above deck. 1 Rev. Stats. p. 685, § 12; also Sess. Laws, 1839, p. 322.

This is a rule of navigation prescribed by the laws of New York, and is doubtless binding upon her own courts, but cannot regulate the decisions of the federal courts, administering the general admiralty law. They can be governed only by the principles peculiar to that system, as generally recognized in maritime countries, modified by acts of congress independently of local legislation. The Johanna was a foreign ship, engaged in the general commerce of the country, not in the purely internal trade of a State. The Bark Chusan, 2 Story, 456.

We agree, an exception to this general principle is, the regulation of steamboats and other water-craft in the ports and harbors of the States, which is required for the accommodation and safety of vessels resorting thither in the pursuits of business and commerce. These are police regulations in aid and furtherance of commerce, enacted by the local authorities, who have a knowledge of the wants of the locality, and a deep interest in properly providing for them.

We are satisfied, the decree of the court below is right, and should be affirmed.


text: Talk:Steamboat New York v. Rea/Opinion of the Court


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Howard v. Wissman

THIS was an appeal from the circuit court of the United States, for the southern district of New York.

The facts are stated in the opinion of the court.

The case was argued by Mr. Johnson, for the appellants, upon which side there was also a brief filed by Mr. Donohue, and by Mr. Betts, for the appellees, upon which side there was also a brief filed by Mr. Cutting.

The points of law upon both sides were so connected with the testimony that they could not be explained without giving an abstract of the evidence.

Mr. Justice CATRON delivered the opinion of the court.

title: Howard v. Wissman


text: Talk:Howard v. Wissman

title: Talk:Howard v. Wissman


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Howard v. Wissman/Opinion of the Court

This is a proceeding in rem, against a foreign vessel, by libel; charging that the libellant shipped on her, at Hamburg, in Germany, 5,004 bushels of potatoes in good order and well conditioned for the purpose of shipping, and that, by the long and wilful delay of the vessel at Hamburg, and on her voyage to New York, (the port of destination,) and through the carelessness and misconduct of the master and owner, the potatoes became and were injured, decayed, and wholly lost to the libellant.

To this charge the respondents answer, that the decay of the potatoes was caused by their lying in port for some time before they were put on board; and that they were delivered to the vessel in a damp and wet state, and were not in a sound condition. The alleged negligence is denied generally.

On the foregoing issue the district court made an interlocutory decree, declaring that 'the libellant recover in this action against the ship, the value of the potatoes at Hamburg at the time they were laden on board, together with charges and expenses, unless it be proved by the claimants that they were not then in a good, sound condition; or that they perished afterwards, in consequence of inherent disease or defects existing at the time of lading the same, and not from the prolonged detention in their transportation; and it is further ordered, that it be referred to a commissioner to ascertain and report the cause of the destruction and loss of the potatoes, and their value at the time of shipment.' The commissioner reported that he had heard the parties and their testimony, and found that the potatoes were in a sound condition, and that they did not perish afterwards in consequence of inherent disease or defects existing at the time of loading the same, but that the cause of their destruction and loss was the long and protracted voyage of one hundred and nine days; and that they were worth, when shipped, (including charges,) $2,256 77/100.

This report was adopted by the district court, and a decree made accordingly.

An appeal was prosecuted by the claimants to the circuit court, where the decree below was affirmed.

The potatoes were shipped in bulk in the hold of the vessel, which mode of shipment was adopted at the instance of the libellants' agent, who superintended their stowage.

It appears that much rain fell during the time the potatoes were lying in lighters, awaiting an opportunity to ship them, being about a month; and it rained when they were alongside, and putting into the vessel; and in our opinion it is satisfactorily established, that the potatoes were wet to a considerable extent when delivered and stowed in the hold. Wulff, the stevedore, under whose immediate supervision they were stowed, deposes that they were wet, 'and considering their condition, and their being shipped in bulk, he thinks they should not have been shipped across the Atlantic; for said potatoes began to steam before the sailing of the ship Howard.'

The pilot of The Howard deposes, that he saw them steam out of the fore-hatch, during the passage down the river, before the vessel got outside.

Kumpel deposes, that he saw the potatoes in the lighters and on board, and that they were wet. So the other witnesses prove.

Kundsten, mate of The Howard, deposes that the potatoes began to have a bad smell when the vessel was fourteen days out. The captain says, he smelt them when they were only eight days at sea.

It is proved by all the witnesses of both sides, that the potato crop of 1849 was much blighted and diseased, all over Germany; and several witnesses declare, that potatoes grown that year were generally unfit for shipment across the ocean.

The libellants' witness, Heidpriein, answers to cross interrogatories, that he purchased and sold that year 7,200,000 pounds of potatoes; that the crop was generally unsound, and would not stand being shipped in bulk for so long a voyage as from Hamburg to New York; says he shipped to Hamburg-about forty German miles, (160 of ours)-by water, and that no cargo arrived, after being on the way from four to fourteen days, without the potatoes being in a bad condition. And respecting those shipped on The Howard, he states that Mr. Rawalle, Mr. Wissman's agent, applied to him to purchase potatoes; and he, having none to sell, told Mr. Rawalle of some for sale by Lehman and Cleve-which, not being sound, the deponent had refused to buy-and he understood Rawalle purchased them. Rawalle deposes that he got the potatoes he shipped of Deven and Lehman, but declares they were not sick or diseased.

Baalmann deposes that he saw the potatoes in the lighters; they were in a bad condition and diseased, he having made examination by cutting them with a knife, and found they were not in good shipping order; and he knows that potatoes of that year's growth, shipped in bulk to England, arrived there in a worthless state, and had to be thrown overboard.

Wulff, the stevedore, says, that when he stowed the potatoes he examined them, by breaking and cutting; they appeared to be unsound and diseased.

The master of The Howard deposes, that the ship Miles took a cargo of the potatoes purchased by Rawalle for Wissman, and what The Miles did not take were taken by The Howard; that, he the master, purchased some of the potatoes that were going to The Miles, for use on The Howard, which proved to be diseased and unfit for use on being cooked.

The mate declares that the potatoes looked well outside, but when cut open they had sickness in them; that the potatoes loaded on both vessels came from the same man.

Arianson, master of the bark Miles, deposes, that more potatoes were sent to The Miles, when loading at Hamburg, than he could take on board, and that the balance were sent to The Howard; that the potatoes that he brought rotted. He discovered it five or six weeks after going to sea, by the smell, which was two or three weeks before arriving at New York.

The owner having been committed to the prim a facie facts of soundness and good condition by his contract of affreightment, it was properly imposed on him by the district court to establish the contrary by due proof; and our opinion is, that the proof produced by him does overcome the prim a facie presumption, and shows the potatoes of the libellant to have been unsound and unfit for shipment, and especially unfit to be shipped in bulk and wet, as was done by the libellant's agent.

Rawalle was examined for the libellant several times. He deposes, that the potatoes were put on board in good order: that they were dry and sound; and in his opinion, if The Howard had sailed in due time, according to her advertisement, they would have arrived at New York in a sound condition.

As a dealer in this article, the witness had very small experience compared with various others examined; none of whom express the belief that this cargo, stowed in bulk, could have reached the port of destination uninjured. But what appears to us far more satisfactory than the speculations of witnesses is, that the cargo of The Miles was lost by decay, she being loaded at the same time and in the same manner as was The Howard, and with part of the potatoes taken from the same lighters-although The Miles made her voyage in due time.

Our conclusion is, that the libellant's case has no merits. It is therefore ordered, that the decree of the circuit court be reversed, and the cause remanded to that court, with directions to dismiss the libel with costs.

title: Howard v. Wissman/Opinion of the Court


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


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McKinney v. Saviego

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

The case is stated in the opinion of the court.

It was submitted on printed arguments by Mr. Hale, for the plaintiff in error, and by Mr. Hughes, for the defendants.

The arguments involved many points of the old Mexican law, but the principal one was thus stated by Mr. Hale, in his additional brief:--

The plaintiffs, in their petition, describe themselves as aliens; and in the thirteenth instruction which they requested, they assume that both the female plaintiff and her mother were aliens to the republic of Texas, and that the former is still an alien to the United States. It is evident, therefore, that at the time of the death of Gertrudis Barrera, the female plaintiff was, with respect to the land in Texas, the alien child of an alien, and the first question is, could she take the estate by inheritance?

The tenth article of the general provisions of the constitution of the republic of Texas, Hart. Dig. p. 38, provides that 'no alien shall hold land in Texas, except by titles emanating directly from the government of this republic. But if any citizen of this republic should die intestate or otherwise, his children or heirs shall inherit his estate, and aliens shall have a reasonable time to take possession and dispose of the same in a manner hereafter to be pointed out by law,' &c. It is clear that the latter part of this provision, which gives to aliens a reasonable time to take possession and dispose of 'the same,' relates to the estate of a citizen of the republic, and not to that of an alien; and that the power given to the congress of the republic to point out the manner in which this disposition should be made, authorizes only laws relating to the estates of citizens. The 14th section of the act of January 28, 1840, cited in the original brief, should, therefore, be restricted to this case; and of this opinion were the supreme court of Texas, in the case of Cryer v. Andrews, 11 Texas, 181, where this clause of the constitution and this act are said to be 'in relation to the alien heirs of a deceased citizen.' The capacity of the alien children of an alien is thus left to be determined by the general prohibition of the constitution and by the principles of the common law, introduced into Texas, as a body, by the act of January 20, 1840, before the death of the plaintiff's ancestor. Hart. Dig. art. 127. And upon these, there can be no question that the female plaintiff, Pilar, being an alien, did not take the land in Texas, by descent, from her mother; and that the district court erred in giving the thirteenth instruction requested by her counsel.

Mr. Hughes contended that Gertrudis Barrera did not lose her land by removing to Tamaulipas before the declaration of independence, because the 8th section of that instrument was prospective. 'All persons who shall leave the country,' &c. Hart. Dig. 37.

Even if the land were liable to forfeiture, the 13th article, § 4, declared that 'the legislature shall, by law, provide a method for determining what lands may have been forfeited or escheated.' Until this was done, the title remained as it was.

The articles 585, 600, (Hart. Dig.) allowed an alien to take by descent. The 38th article allowed the alien heirs of citizens a reasonable time to dispose of their property; but this included alien heirs of an alien, because the section provides that it shall be no bar to a descent that one of the ancestors of the claimant was an alien.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: McKinney v. Saviego


text: Talk:McKinney v. Saviego

title: Talk:McKinney v. Saviego


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McKinney v. Saviego/Opinion of the Court

The defendants (Saviego and wife) claimed, in the district court, two and one half leagues of land lying in the counties of Goliad and Refugio, in Texas, as an inheritance of Madame Saviego, from her mother, Gertrudis Barrera, who died in Matamoros, in Mexico, in 1842.

Gertrudis Barrera acquired, in 1834, one league of the locus in quo by donation, and the remainder by purchase under the colonization laws of the State of Coahuila and Texas, while it formed a part of the republic of Mexico. She occupied and improved the land until the commencement of the revolutionary movements in Texas, in 1835, but prior to the declaration of independence in that year she emigrated and became a resident of Matamoros, where she continued until her death. The plaintiffs were also citizens of Coahuila and Texas, but abandoned their connection with Texas in company with their ancestress, and have retained their status as Mexican citizens.

They are described on the record as aliens and citizens, and residents of the city of Matamoros, in the State of Tamaulipas, in the republic of Mexico. The defendant claimed the land by virtue of locations and surveys of valid land certificates, which had been regularly returned to the general land-office, in Texas, before the 31st August, 1853.

A number of questions are presented in the bill of exceptions, but the opinion the court has formed upon the 12th, 13th, and 14th instructions, given at the instance of the plaintiffs, in the district court, renders it unnecessary for us to consider any others. These instructions are as follows:--

'12. If Gertrudis Barrera was a citizen of the republic of Mexico, domiciliated within the State of Coahuila and Texas when the land in question was granted to her, her abandonment of the State of Coahuila and Texas, and settlement in Matamoros, in the State of Tamaulipas, after the commencement of the revolution in Texas, and before the declaration of Texan independence, was not a forfeiture of the land so granted, nor did the land thereby become vacant; and after the close of the revolution in Texas, she would have been authorized to enforce her right, had she then been living.

'13. If Madame Barrera died in Tamaulipas, in 1842, then being a citizen of the said State of Tamaulipas, domiciliated there, and the female plaintiff was her only heir, she too being a citizen of, and domiciliated in Tamaulipas, said heir could and did take, by the law here, the land in contest, by descent, and had a right to enforce her title by descent, to the same extent that her ancestor could have done, but subject, as she is an alien, to forfeiture by proceedings on the part of the State.

'14. But if no proceedings were instituted and perfected before the late treaty between the United States and Mexico, the right in said heir becomes perfect, and not subject to forfeiture, by virtue of the 8th article of said treaty.' It is settled, in the jurisprudence of Texas, that the colonization laws of Coahuila and Texas annex, as an enduring and peremptory condition, to all titles issued by their authority, that the grantee, so long as he remains the proprietor, shall continue his domicile within the republic of Mexico, of which that State formed a part. A change of domicile operated to defeat the estate of the grantee, and to restore the land without encumbrance to the public domain, so that, without a judicial or other inquiry, it might be regranted. The same jurisprudence recognizes the prohibition upon foreigners to inherit lands in Mexico, for the owners of lands were subject to charges and obligations which citizens could alone perform. Halleman v. Peebles, 1 Texas, 673; Horton v. Brown, 2 ibid. 78; Yates v. James, 10 ibid. 168.

The conduct of Gertrudis Barrera and her children, the defendants in this suit, after the commencement of the revolutionary movements in Texas, and which separated that State from Mexico, deprived them of all claim to political rights in the new republic, and placed them under the civil disabilities of foreigners under its laws. The constitution of Texas, of 1836, identified as citizens only such persons as were residing in Texas on the day of the declaration of independence, or should be naturalized according to its provisions. Hart. Dig. 35, 38; Inglis v. Trustees of the Sailors' Snug Harbor, 3 Pet. 99. The same instrument provided that 'no alien shall hold land in Texas, except by titles emanating directly from the government of this republic,' (Hart. Dig. 38, § 10,) and provided that congress should, as early as practicable, introduce by statute the common law of England, with such modifications as the circumstances of the State might require. This duty was performed in 1840, by an enactment that 'the common law of England, so far as it is not inconsistent with the constitution or acts of congress now in force, shall, together with such acts, be the rule of decision in this republic, and shall continue in full force until altered or repealed by congress.' The common-law authorities clearly establish that Madame Saviego, under the circumstances, is not deemed to be an heir at law, having no inheritable blood, and, in the absence of such heirs, the estate would be cast immediately upon the State, without inquest of office. Orr v. Hodgson, 4 Wheat. 453; Hardy v. De Leon, 5 Texas, 211, 242.

We shall now examine if there are other provisions in the laws of Texas to relieve the defendants from the apparent disability.

The constitution of Texas, by way of exception to the general inhibition upon aliens to 'hold lands except by titles emanating directly from the republic,' declares, that 'if any citizen should die intestate or otherwise, his children or heirs shall inherit his estate, and aliens shall have a reasonable time to take possession of and dispose of the same in a manner hereafter to be pointed out by law.' The 10th section of the law of distribution and descent, (Hart. Dig. art. 585,) provides: 'In making title to land by descent, it shall be no bar to a party that any ancestor, through whom he derives his descent from the intestate, is or hath been an alien; and every alien to whom any land may be devised or may descend, shall have nine years to become a citizen of the republic and take possession of such land; or shall have nine years to sell the same, before it shall be declared forfeited, or before it shall escheat to the government.' The first clause of this section is substantially a re enactment of the statute of 11 and 12 William III. c. 6, and removes no other defect than the want of inheritable blood arising from the alienage of some person through whom the heir must deduce his claim. McCreery v. Somerville, 9 Wheat. 354.

The second clause modifies the existing laws which regulate the capacities of aliens to take or hold real property in the State, whether by devise or descent.

But the remedial effect of the act does not extend beyond the disability of an alien heir. It contains no enactment in favor of an alien who may have acquired possession or property in lands, whereby he could make a valid bequest or transmit it to his heirs, whether aliens or citizens by descent.

The act of which this section forms a part is framed for the disposal of the estates of those having 'title to any estate in inheritance, and regulates its descent or distribution.' The prohibition in the constitution upon aliens to hold lands in Texas, and the limited powers of congress to introduce favorable conditions in favor of alien heirs, must be remembered in ascertaining its meaning. The constitution had provided for the transmission of the estates of citizens to their children or heirs, (being citizens,) and then provides that congress shall legislate to give to aliens a reasonable time to take possession and to dispose of such an inheritance. Neither the language of the act nor the policy of the State, as it may be discovered from its constitutions and laws, authorizes the conclusion that an alien, claiming real property in Texas, can transmit it, by descent, to an heir who is also an alien.

The subject-matter to which these provisions all relate is the estates of citizens; and we cannot apply their conditions to the special and peculiar case of an inheritance claimed by an alien heir in the right of an alien intestate. The question has not arisen, so far as we can discover, in the courts of Texas; but in the case of Cryer v. Andrews, 11 Texas, 170, the court seems to assume that the act we have considered was a legislative compliance with the constitutional guarantees in favor of the alien heirs of deceased citizens; and that the alien heir must, within nine years, sell the lands or become a citizen. In the present instance, citizenship has not been acquired, which that court seems to treat as a prerequisite to an entry on the inheritance.

The last question remaining for consideration arises on the 8th section of the treaty with the republic of Mexico of the 2d February, 1848, (9 Stats. at Large, 923,) called the treaty of Guadaloupe Hidalgo. The first clause of that article provides 'for the Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States.' The second clause provides for those who shall prefer to remain in the said territories, and they are authorized to retain the title of Mexican citizens or acquire the rights of citizens of the United States. The third clause prescribes, 'that in the said territories property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States.' To what territories did the high contracting parties refer to in this article? We think it clear that they did not refer to any portion of the acknowledged limits of Texas. The territories alluded to are those which had, previously to the treaty, belonged to Mexico, and which, after the treaty, should remain within the limits of the United States. The republic of Texas had been many years before acknowledged by the United States as existing separately and independently of Mexico; and as a separate and independent State it had been admitted to the Union. The government of the United States, by that act, had conferred upon the population established there all the privileges within their constitutional competency to grant.

The various stipulations contained in this article are wholly inapplicable to the persons who, before the revolution in Texas, had been citizens of Mexico, and who, by that revolution, had been separated from it.

The right of property, to which this article of the treaty was designed to afford a guarantee, extended to property of every kind which, at its date, belonged to Mexican citizens, ('now belonging to Mexicans,') not established within the territories then ceded to the United States. In the present instance, the republic of Texas had acquired title many years before, and the land at the date formed a part of its public domain.

Our conclusion is, that the judgment of the district court should be reversed, and the cause remanded to that court for further proceedings.


text: Talk:McKinney v. Saviego/Opinion of the Court


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United States v. Minnesota and Northwestern Railroad Company

THIS was a motion by Mr. Cushing, (attorney-general,) to withdraw the writ of error, and discontinue the appeal to this court, to which the case had been brought up, by writ of error, from the supreme court of the Territory of Minnesota.

The motion was argued by Mr. Cushing, and opposed by Mr. Barbour and Mr. Johnson. Much matter of general interest was introduced by both sides into the discussion, which it is not deemed necessary to report, because the decision of the court turned upon a single legal point.

Mr. Justice NELSON delivered the opinion of the court.


text: Talk:United States v. Minnesota and Northwestern Railroad Company


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United States v. Minnesota and Northwestern Railroad Company/Opinion of the Court

This is a writ of error to the supreme court of the Territory of Minnesota.

An action of trespass was brought by the United States against the defendants before the district court of the first district, in the county of Goodhue, in said Territory, for an alleged trespass committed on section 3, in township No. 112 north, of the public lands.

The defendants justified under an act of incorporation by the legislature of the said Territory, passed March 4, 1854, and by which they were empowered to construct a railroad from a point on the northwest shore of Lake Superior, and near the mouth of the St. Louis River, across the said Territory of Minnesota, by the way of St. Anthony and St. Paul, over the Mississippi at St. Paul, and to such point on the northern boundary line of the State of Iowa, as the board of directors might designate, which point should be selected with reference to the best route to the city of Dubuque, provided the location of the road should conform in all respects to such route as might be designated in any act of congress granting lands for the construction of a railroad through the Territory.

The act of incorporation also provided that any lands granted to the Territory in aid of the construction of this road, should be deemed vested in fee-simple in the company; and further, it is alleged that by an act of congress, passed June 29, 1854, for the purpose of aiding in the construction of the road, every alternate section of land designated by odd numbers, for six sections in width on each side of the road along the line, was granted to the Territory upon the terms and conditions specified in the said act; and also, that the said defendants caused a survey and location of the road as contemplated by the act of incorporation, and that said road includes the land upon which the trespass complained of was committed, and which is a portion of one of the sections granted to the Territory of Minnesota by the act of congress aforesaid.

The plaintiff to this defence set up, by way of replication, that before the trespasses complained of were committed, namely, on the 4th of August, 1854, an act was passed by congress repealing the act previously passed on the 29th of June, granting land in aid of the construction of said road.

To this replication the defendants demurred, and the plaintiff joined in the demurrer.

The district court gave judgment for the defendants on the demurrer.

An appeal was taken from this judgment to the supreme court of the Territory, where, after argument, the judgment was affirmed. From this judgment the plaintiff has appealed to this court by writ of error.

The writ of error was made returnable to this court on the fourth Monday of December, 1854, and the record was brought up by the defendants in error, and filed and docketed on the 21st of the same month.

The attorney-general now moves, on behalf of the United States, to withdraw his writ of error, and discontinue the appeal to this court, which motion is resisted by the counsel for the defendants.

After an appeal brought to the appellate court, the withdrawal or discontinuance of the same is not a matter of course, but, if the plaintiff finds it expedient to discontinue, he must first obtain leave of the court. 2 Daniel's Pr. 1644; 11 Pet. 55. The discontinuance is usually granted on the application, unless some special reason be shown by the defendant for retaining the case with a view to a determination on the merits. Usually, the courts will not allow it, if the party intend at some future time to bring a new appeal, as the allowance under such circumstances would be unjust to the defendant. There is no such ground of objection here, as the attorney-general disclaims trying the questions involved upon the present pleadings. These pleadings, with the exception of some questions arising upon the powers conferred upon the defendants under their act of incorporation, confine the issue to the effect and operation of the act of congress granting the lands in aid of the construction of the road, and of the subsequent repealing act. And these, doubtless, comprised all the questions which the counsel in the court below, representing the United States, supposed could be material. They are presented very fully and lawyer-like upon the record, and are involved in the judgment rendered in the court below.

The attorney-general, however, avers, that there are other questions than those appearing on the record, which he deems material to be brought to the consideration of the court in deciding upon the force and effect of these acts of congress referred to, and without which he is unwilling to submit the case to the final determination of this court; and asks, therefore, for a withdrawal of the appeal. Without expressing any opinion whether there may or may not be questions presented, other than those appearing upon this record, bearing upon the general matters involved in the litigation, the court are of opinion that the grounds stated by the attorney-general, and his opinion expressed as the legal representative of the government, are sufficient to justify us in granting leave for the discontinuance.

Some technical grounds have been presented, depending upon the rules and practice of the court for the dismissal of the case from the docket, and of the writ of error, which we have not deemed it important to notice, as we think the motion should be granted upon the general ground stated.

Motion to withdraw and discontinue the appeal by writ of error in this case granted.


text: Talk:United States v. Minnesota and Northwestern Railroad Company/Opinion of the Court


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Calcote v. Stanton

THIS case was brought up from the high court of errors and appeals of the State of Mississippi, by a writ of error issued under the 25th section of the judiciary act.

Mr. Benjamin moved to dismiss it for want of jurisdiction, none of the cases provided for in the 25th section being applicable here. He then examined the provisions of the section, and contended that the construction placed by the court of appeals of Mississippi upon the fourth and fifth sections of the bankrupt act was not such as to give this court jurisdiction to review its decision. Besides, that court considered the claim to be barred by the statute of limitations.

The motion was opposed by Mr. Day and Mr. Johnson, who entered into an elaborate review of the judgment of the Mississippi Court with a view of showing that, by necessary inference, that court must have decided against the right and title set up under the bankrupt act, because there was no other sufficient ground upon which to rest their judgment.

Mr. Justice GRIER delivered the opinion of the court.

title: Calcote v. Stanton


text: Talk:Calcote v. Stanton

title: Talk:Calcote v. Stanton