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Olney v. Steamship Falcon

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

A libel was filed in the district court, by Olney, alleging the shipment and non-delivery of a box of merchandise, in consequence of which he was entitled to recover the damages by him sustained, which amounted to the sum of eighteen hundred dollars and upwards.

The district court dismissed the libel, and the circuit court affirmed the decree. The libellant appealed to this court.

Mr. Cutting moved to dismiss the appeal, upon the ground that the amount in controversy appeared, by the record, to be less than two thousand dollars, exclusive of costs.

The motion was argued by Mr. Cutting, in support thereof, and by Mr. Bradley, with whom was Mr. Benedict, in opposition thereto.

The reporter has no notes of Mr. Cutting's argument.

Mr. Bradley filed the following affidavit of value, and then made the following points:-- Affidavit of value.

Charles L. Benedict, of the city of New York, counsellor at law, being sworn, says that he is the proctor for the libellant in this cause.

That the libellant resides out of the city of New York, and deponent has not been able to communicate with him since the notice of the motion to dismiss the appeal in this cause was received. That the amount actually claimed, in good faith, in the original libel in this cause, is one thousand eight hundred dollars, over and above the interest thereafter to accrue, and that, with the interest, the same actually amounted to exclusive of costs, at the time when the appeal in this cause was taken to the decree of the circuit court. And deponent further says, that it is the usual practice, in the southern district of New York, under the 44th rule of this court, in admiralty, to refer questions of damages to a commissioner, to ascertain and compute the amount, after the court shall have given its decree for the plaintiff, so that the full testimony of the amount of damages is not given on the principal hearing.

And deponent further says, that the rules of the district court require libels to be sworn to; so that it is necessary, in stating the amount claimed, to state the same as it actually and in truth exists at the time the libel is sworn to, and on such libels the court, in its final decree, gives such amount as the libellant shall be entitled to recover on his case, whether the same be more or less than the amount in the libel.

CHAS. L. BENEDICT.

Subscribed and sworn to by Charles L. Benedict, this 20th day of December, A. D. 1854, before me,

CHAS. ELIOT SCOVILLE, U.S.C.om'r. Points.

I. It is the matter in dispute in this court, at the time of the appeal, and not the amount in the original libel, which controls the jurisdiction.

In Gordon v. Ogden, 3 Pet. 34, the court says: 'Upon the true construction of the judicial act, the jurisdiction of the court depends upon the sum in dispute between the parties, as the case stands upon the writ of error.' The appeal states that the original claim was for eighteen hundred dollars and upwards, besides the interest; that, on the hearing, the libellant claimed the said principal and the interest, amounting to two thousand two hundred and fifty dollars, and that the libellant was entitled to recover, on his proofs and allegations, two thousand two hundred and fifty dollars, October 14, 1853.

That was our claim at the time of the appeal; another year's interest has since been added.

The libel was sworn to on February 27, 1850, and the amount sworn to, at that time, was eighteen hundred dollars and upwards, a sliding sum, to cover interest as it should accumulate by delay.

II. If the computation of interest will make the amount large enough, then the court has jurisdiction.

In Scott v. Lunt's Administrator, 6 Pet. 351, the court says: 'The court cannot judicially take notice that, by computation, it may possibly be made out, as matter of inference, from the declaration, that plaintiff's claim in reality must be less than one thousand dollars, (the case was from the district); much less can it take such notice in a case where the plaintiff might be allowed interest on his claim by the jury, so as to swell his claim beyond one thousand dollars, (the limit in the district.)'

III. Where the decree is against the plaintiff, then the 'matter in dispute' is the largest amount which he may recover.

In Gordon v. Ogden, 3 Pet. 34, the court say: 'If the writ of error be brought by the plaintiff below, then the sum which his declaration shows to be due, may be still recovered, should the judgment be reversed. And, consequently, the whole sum claimed is still in dispute. It is the uniform practice, in the southern district of New York, to establish, on the hearing only, the liability, and to have the amount of the damages ascertained on a reference to a commissioner; so that the proofs in the record are not the full proofs as to the amount.

IV. Where the matter in dispute is not fixed by the record, it may be shown by affidavit. 4 Dallas, 22; 3 Dallas, 401; 4 Cranch, 216.

V. Under the 24th admiralty rule of the supreme court, the libel may be amended at any time, as of course, on application to the court. If this be necessary, we now move to amend the libel, by inserting, 'together with the interest to the time of the final decree in this court, or any appellate court.'

Mr. Justice McLEAN delivered the opinion of the court.

title: Olney v. Steamship Falcon


text: Talk:Olney v. Steamship Falcon

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

title: Talk:Olney v. Steamship Falcon


text:
Olney v. Steamship Falcon/Opinion of the Court

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

A motion is made by defendants' counsel to dismiss the appeal, for want of jurisdiction.

In the libel, the shipment of a box of merchandise, which was not delivered to the consignee, &c., is alleged, and that the libellant is entitled to recover of said vessel the damages by him sustained, which amount to the sum of eighteen hundred dollars and upwards,' &c.

The district court dismissed the libel, from which decision an appeal was taken to the circuit court, and that court affirmed the decision of the district court. From this last decision, an appeal has been taken to this court.

On the part of the appellant it is stated, that the claim was for eighteen hundred dollars and upwards, besides the interest; that, on the hearing, the libellant claimed the said principal and interest, amounting to two thousand two hundred and fifty dollars, and that he was entitled to recover, on his proofs and allegations, that sum. That this was the claim at the time of the appeal, and that another year's interest has since accrued. And it is contended that the sum sworn to, being eighteen hundred dollars and upwards, was intended to cover the accruing interest.

The right of appeal from the circuit to the supreme court is given, 'where the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs.' The defendant can appeal, where the judgment or decree against him exceeds the sum or value of two thousand dollars; but an appeal may be taken by the plaintiff where his claim of damages, in the declaration or libel, exceeds the above sum, or where the value of the thing claimed exceeds it, as this is held to be the matter in dispute.

The appellant, in this case, claims in his libel, which is sworn to, eighteen hundred dollars and upwards. The words, 'and upwards,' it is said, were intended to embrace the interest, and that, if this be calculated from the time of filing the libel up to the time of the trial, the sum would exceed two thousand dollars.

The interest, in an action of this kind, if taken into view, is considered as a part of the damages, being merged in that claim, and is not estimated as a distinct item. The claim of more than eighteen hundred dollars, is too indefinite to give jurisdiction under the act of Congress; and the interest not being specially claimed, for the reason stated, cannot be computed. The appeal is, therefore, dismissed, for want of jurisdiction. Gordon v. Ogden, 3 Pet. 34; Scott v. Lunt's Administrator, 6 Pet. 349.

This cause came on to be heard, on the transcript of the record, from the circuit court of the United States for the southern district of New York, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that this cause be, and the same is hereby, dismissed, for the want of jurisdiction.


text: Talk:Olney v. Steamship Falcon/Opinion of the Court


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Haydel v. Dufresne

THIS case was brought up from the supreme court of the State of Louisiana, by a writ of error issued under the 25th section of the judiciary act.

The widow Francois Dufresne filed her petition in the fourth judicial district court of the State of Louisiana, in the parish of St. John the Baptist, complaining that the United States deputy surveyor had allotted to her 79 28/100 acres of back land, instead of 121 13/100 and had given to Mrs. widow Marcelin Haydel, 243 20/100 acres, instead of 201 35/100, which was her fair proportion.

It is not necessary to trace the progress of the dispute, or to refer to the surveys. The fourth judicial district court decided that, inasmuch as the deputy surveyor had apportioned the back lands in the manner now complained of, and there was not to be found on the face of the survey such gross preference and unwarrantable proceeding, which alone, in some cases, would require the interposition of a court of justice, the defendant should be quieted in her possession. Other points were raised and decided, which it is not necessary to notice.

It was carried to the supreme court, which reversed the judgment of the court below, holding that the act of the deputy surveyor was merely ministerial, and that he was bound to make an equitable division of the back land between the front owners, in proportion to the respective quantities held by the latter.

The widow Marcelin Haydel brought the case up to this court.

It was argued by Mr. Janin, for the plaintiff in error, and submitted upon a printed argument by Mr. Grailhe, for the defendant in error. Only those parts of the arguments will be noticed which related to the point upon which the decision of their court turned.

Mr. Janin, for plaintiff in error.

I. The power of congress over the public lands is unlimited. Bragnell v. Broderick, 13 Pet. 439; Wilcox v. Jackson, Id. 498; Foley v. Harrison, 15 How. 433. Congress had the undoubted right to prescribe the extent to which, and the boundaries within which, portions of the domain might be purchased as back concessions. By the 5th section of the act of March 3, 1811, congress prescribed that this extent and these boundaries should be determined in certain cases, such as this, by the deputy surveyor of the district and the surveyor of the district south of Tennessee River. These officers are, therefore, the exclusive judges of the matters now brought before this court, by the plaintiff, subject only to the supervision of the general land-office. In the case of Wilcox v. Jackson, 13 Pet. 511, the supreme court of the United States held the following language:

'Before we proceed to inquire whether the land in question falls within the scope of any of these prohibitions, it is necessary to examine a preliminary objection which was urged at the bar, which, if sustainable, would render that inquiry wholly unavailing. It is this: that the acts of congress have given to the registers and receivers of the land-offices the power of deciding upon claims to the right of pre-emption-that upon these questions they act judicially-that, no appeal having been given from their decisions, it follows, as a consequence, that it is conclusive and irreversible. This proposition is true in relation to every tribunal acting judicially, whilst acting within the sphere of its jurisdiction, where no appellate tribunal is created; and even where there is such an appellate power, the judgment is conclusive when it only comes collaterally into question, so long as it is unreversed. But directly the reverse of this is true in relation to the judgment of any court acting beyond the pale of its authority. The principle upon this subject is concisely and accurately stated by this court, in the case of Elliot et al. v. Peirsol et al. 1 Pet. 340, in these words: 'Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But, if it act without authority, its judgment and orders are regarded as nullities. They are not voidable, but simply void."

The case of Jourdan v. Barrett, 4 How. 169, is very analogous to this, and conclusive on the authority of the surveyors. See pp. 182-184.

That the surveyors acted within the scope of their authority, is not questioned; and, from the authorities just quoted, it appears that the propriety or correctness of their decision is beyond the reach of courts of law. But were the question open, it would be easy to show that their decision is unassailable, and that a court of justice would decide as the surveyors did. The object of the enactment of congress was to provide for the apportionment of back lands in certain localities, where every front proprietor could not obtain a quantity equal to his front tracts-that is, on points of land. The precise limits of the point, the lands of which are thus to be made to contribute and participate, cannot be determined by legislative language; each point begins in a bend; while one man may suppose it to begin in the middle of the bend, another may be of opinion that it really begins only at its extremity. Under these circumstances, the surveyor followed the most prudent course.

Mr. Grailhe, in reply to the above.

We candidly confess there is some 'simplicity,' if not in the point at issue, at least in the arguments brought forward to mislead the judgment of this court.

They are, in substance, the following: That the 5th section of the act of congress, approved March 3, 1811, takes from the judiciary power the right to determine upon conflicting claims arising under this law, and transfers it over to the ministerial, or executive department.

A more forced conclusion cannot be drawn from the plain language of the section quoted, which, in full, reads as follows:

'And the principal deputy surveyor is hereby authorized to cause to be surveyed the tracts claimed by virtue of this section; and in all cases where by reason of bends in the river, lake, creek, &c., each party cannot obtain a tract equal in quantity to the adjacent tract already owned by him, to divide the vacant land applicable to that object between the several claimants, in such manner as to him may appear most equitable.'

Now are these words exclusive of the concurrent jurisdiction of the judiciary? No; and we repeat that an attempt to impose on them such a construction, is a stretch of imagination and credulity not to be admitted.

And, in fact, in whatever manner the subject may be viewed, can congress derogate from the great principles of the constitution? It is urged that congress, having the primordial possession of the soil, may fix such restrictions as it pleases to its disposal. But congress is only invested with the delegated powers of the original sovereign States, and all powers not expressly granted are admitted to be withheld.

The first section of article 3d of the federal constitution, says that the judiciary power of the United States shall be vested in one supreme court, and in such inferior courts as congress may from time to time ordain and establish; and the following article adds that said power shall extend to all cases arising under the constitution and laws of the United States.

By the 3d section of article 4th, congress is empowered to dispose of, and make all needful regulations relative to, the territory or other property of the United States.

But can these regulations, which in fact are laws of the land as well as land laws, differ from the general principles adopted in the social compact?

The answer is obvious, and though it had been unnecessary to point it out, yet, congress has, on different occasions, answered the query, more especially in the act of March 3, 1831, already quoted, where, referring to similar conflicting claims, it says [sect. 6]: 'That in relation to all confirmed claims as may conflict, the register of the land-office and receiver of public moneys are hereby authorized to decide between the parties, and shall be, in their decision, governed by such lines or boundaries as may be agreed upon between the parties, either verbally or in writing: and in case no boundaries be agreed upon between the parties, said register and receiver are authorized to decide between the parties in such manner as may be consistent with the principles of justice; and it shall be the duty of the surveyor-general of said State to have those claims surveyed and plated in accordance with the decision of the receiver and register. Provided, that said decisions and surveys and the patents that may issue thereon, shall not, in anywise, be considered as precluding a legal investigation and decision by the proper judicial tribunal.'

Does it not now appear that a 'patent' may be inquired into, in any case, where it has improvidently issued?

But one of the boldest attempts to mislead a court of justice is certainly found in the assumption that the case of Jourdan v. Barrett, 4 How. Rep. 169, supports the position of defendant, when in fact it upsets every principle by her invoked. This decision merely establishes that a survey made after the act of May 1, 1831, providing for a surveyor-general of Louisiana, could not be binding if made by the surveyor of lands south of Tennessee, with whom was by former laws vested the right of survey in Louisiana and the adjacent States; but, as to a word relative to the exclusive jurisdiction of executive or ministerial authority, we dare the opposite counsel to quote from that case.

Yet, it is confidently asserted, and we must say that we were struck with astonishment to hear it mentioned, that this exclusive power to decide between conflicting claims could not be questioned, and was universally admitted.

Nothing is so far remote from the real state of things, and we challenge the issue. We here proclaim, and this for the honor of our federal courts, that such a heresy has never been dreamed of by them, and that every misquotation from their decisions to that effect, is made with a view to 'give so much of truth as will suggest an untruth.'Take, for instance, the leading case of Wilcox v. Jackson, 13 Pet., quoted by our adversary.

It would, from the fragment chosen, appear, that the court in that case maintained an entry and survey against any other equity of antecedent date; but not so, however.

Jackson was an officer of the United States army, stationed at a certain place, set aside by congress as a military post. Wilcox had settled himself, as a squatter, on part of the tract, and, after various frustrated attempts, had succeeded in obtaining from the register a certificate of pre emptioner, a located warrant and a 'survey' from the proper officers. Then he sued Jackson, the party in possession.

What did the court decide? That congress was at liberty to dispose of their public lands as they pleased; that having set the land aside for certain purposes, it could not be treated as belonging to the mass of public property, and when, as quoted in defendant's brief, they speak of the power given to registers and receivers to decide upon questions of location, they say that so long as they remain within their duties, their acts are legal; but not so, when transgressing them. And they then set aside the decision which had been rendered in favor of Wilcox, by the land officers.

How could any one be so bold as to give the foregoing case such a misinterpretation as that sought to be forced on the court in the present instance?

We repeat again, that such a heresy is not sanctioned, and we hope never will be sanctioned, by an American tribunal; for it would not only be tainted with illegality and unconstitutionality, but submit, in a free country, the rights of citizens to the whims, caprices, or corruption of the irresponsible recipients of executive favor.

Mr. Justice CATRON delivered the opinion of the court.

title: Haydel v. Dufresne


text: Talk:Haydel v. Dufresne

title: Talk:Haydel v. Dufresne


text:
Haydel v. Dufresne/Opinion of the Court

The plaintiff and defendant are respectively owners of tracts of land forty arpens deep, situate in a concave bend of the Mississippi River, in Louisiana; their tracts front on different sides of the deepest point of land, and when the side lines of each tract are extended perpendicular to a base line corresponding with the bank of the river, the two tracts interfere before the second depth of forty arpens is obtained.

By the 5th section of an act approved the 15th of February, 1811, congress provided 'that every person who, either by virtue of a French or Spanish grant, recognized by the laws of the United States, or under a claim confirmed by the commissioners appointed for the purpose of ascertaining the rights of persons claiming lands in the territory of Orleans, owns a tract bordering on any river, creek, bayou, or watercourse, in the said territory, and not exceeding in depth forty arpens French measure, shall be entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to, and back of his own tract, at the same price and on the same terms and conditions as is or may be provided by law for the public lands in said territory. And the principal deputy surveyor of each district, respectively, shall be, and he is hereby authorized, under the superintendence of the surveyor of the public lands south of the State of Tennessee, to cause to be surveyed the tracts claimed by virtue of this section. And in all cases where, by reason of bends in the river, lake, creek, bayou, or watercourse bordering on the tract, and on adjacent claims of a similar nature, each claimant cannot obtain a tract equal in quantity to the adjacent tract already owned by him, to divide the vacant land applicable to that object between the several claimants in such a manner as to him may appear most equitable.'

Those under whom the plaintiff and defendant hold their lands, respectively, availed themselves of the pre emption accorded by this law. The husband of the plaintiff, having 155 80/100 acres in his front tract, paid into the hands of the receiver of public moneys, $148.75, for a certificate of the entry of 119 acres of the lands in his rear. Nicholas Haydel, under whom the defendants holds, owned a front tract containing 249 54/100 acres, and paid into the hands of the receiver of public moneys the price of 248 acres, for his entry of the back lands, under the law.

The whole quantity of land in the rear, subject to their entries, was 322 48/100 acres, as to which there was no conflict between them and any other proprietors. Of this quantity the principal deputy surveyor of the United States allotted to Haydel 243 20/100 acres, and Dufresne 79 28/100. His survey dividing the land in dispute was part of a township survey, and was approved in March, 1831, by the surveyor of public lands south of the State of Tennessee, and a patent was issued to Haydel for 243 20/100 acres of the land, in 1845.

The petition charges error in the division, but nothing more, and asks a redivision of the land by the district court, on the sole ground of a vested equity in the plaintiff to forty acres of the land granted to Haydel. It is not alleged that Haydel controlled the surveyor, or had any connection with, or even knowledge of, the alleged error when the survey was made.

On this state of pleading and fact, the district court decided for the defendant, and dismissed the petition; and an appeal was prosecuted to the supreme court of Louisiana, which reversed the judgment of the district court, and ordered that court to cause the land in dispute to be divided by a resurvey, so as to give Dufresne forty acres of the land for which Haydel had obtained a patent. This judgment was given on the assumption that, by their respective entries in the district land-office, each party took an equity in the back land in proportion to the quantity of his front tract, when compared with the contending tract; and that thus the respective equities stood before and at the time when the lands were officially surveyed; and that the principal deputy who laid off the lands, under the supervision of his principal, acted in a merely ministerial capacity, and had no discretion to divide them so as to give Dufresne less than a full proportion of the whole. If it be true, that irregular entries of unsurveyed back lands, which entries were allowed by courtesy of the general land-office, vested an equity in the enterer, and divested the United States of title, as the state court held, then it must follow, that after the entries were generally made in this loose form, throughout the coast of the Mississippi River, in Louisiana, that the courts of justice might have decreed partitions among front proprietors, in all instances, and have had the lands surveyed by judicial authority, and superseded the action of the United States altogether, as required by the act of 1811.

These anomalous entries were conditional, and made subject to a future public survey; to this effect the receipt for the money was given by the receiver, and the register was instructed not to transmit the certificate of purchase until the survey was completed.

The constitution vested congress with power to dispose of the public lands, and to make all needful regulations for this purpose; and as respects the class of lands under consideration, the proper department ordered, as a rule having few exceptions, that they should be laid down as part of a general plan of township surveys, and in connection with the public lands and private claims adjoining; and that this general survey should settle the quantity and form of each tract of back land to which a front owner had a preference of entry.

In this instance the survey was made by the principal deputy of the proper district, under the superintendence of the surveyor of public lands south of the State of Tennessee, as required by law; by this survey, it was ascertained that neither of the claimants here litigating could obtain a tract equal in quantity to his front tract; and therefore it became necessary for the surveyor, assisted by his immediate superior, to divide the vacant land between these two front owners, 'in such manner as might seem to him most equitable.' When the survey was approved, if the party here suing supposed himself aggrieved, he was authorized to appeal from the decision of the principal deputy, and the surveyor-general south of Tennessee, to the Commissioner of the general land-office; and from his decision, if unfavorable, to the secretary of the treasury.

Congress contemplated that these lands should be divided among front proprietors, by a surveyor on the ground, aided by his principal; these officers were bound to act according to their best judgment, and deoide as judges on the equities of these claimants; nor could the courts of justice interfere to control their acts, if they were honestly performed; the contrary of which is not alleged in this case.

This construction of the law is altogether necessary, as great confusion and litigation would ensue if the judicial tribunals, state and federal, were permitted to interfere and overthrow the public surveys on no other ground than an opinion that they could have the work in the field better done, and divisions more equitably made, than the department of public lands could do.

It is ordered that the judgment of the supreme court of Louisiana be reversed.

This cause came on to be heard, on the transcript of the record, from the supreme court of the State of Louisiana, and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said supreme court in this cause be, and the same is hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded to the said supreme court, with directions for further proceedings to be had therein, in conformity to the opinion of this court, as to law and justice shall appertain.

title: Haydel v. Dufresne/Opinion of the Court


text: Talk:Haydel v. Dufresne/Opinion of the Court


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Page:Dictionary of National Biography volume 58.djvu/33

 (Gesta, p. 32). During the famous retreat northwards he shared with Sir John Cornwall the command of the van, and on 18 Oct. first effected the dangerous passage over the Somme (ib. p. 43). He fought well at Agincourt, where the ransom of two prisoners fell to his share (, Battle of Agincourt, p. lxi, App.) In 1416 he was again fighting at Calais under Warwick (Gesta, p. 96).

In the Norman campaign of 1417 Umfraville was captain of fifty-four lances (ib. p. 271), and one hundred and twenty-five archers. On 20 Aug. power was given to him and to Gilbert Talbot to take possession of all castles and towns in Normandy (Fœdera, ix. 486), and on 30 Sept. he was made captain of Caen, and afterwards of Gournay. On 25 March 1418 he was justice in the diocese of Bayeux. He received very liberal grants of forfeited Norman estates, which included, among other places, Amfreville, the cradle of his race. He was with Warwick at the siege of Neuilly l'Évêque (, ii. 328). He was at the siege of Rouen in 1418–19, being stationed, under John Holland, earl of Huntingdon, on the left bank of the Seine (, i. 344;, Siège de Rouen, p. 86). On the besieged opening negotiations, Umfraville was sent by Huntingdon to treat with them on 1 Jan. 1419. The Rouennais welcomed him as of an ancient Norman stock, and persuaded him to intervene on their behalf through the Duke of Clarence with the king (details in in Memorials of Henry V, pp. 53–6, but much more elaborate particulars in the English poem, ‘The Sege of Roan,’ printed in Archæologia, vols. xxi. and xxii., and translated by, pp. 235–72, and pp. 162–3). Afterwards he was one of the commission of sixteen who drew up the terms of the capitulation of the city. In February 1419 he was appointed in rapid succession captain of Pontoise, Eu, and Neufchâtel. He also took part in the long siege of Château Gaillard (, i. 368–9;, iii. 338).

On 28 March 1419 Umfraville was made member of an embassy accredited to the French king, and on 8 May was put on the commission empowered to negotiate for the marriage of Henry V with Catharine, and to arrange for an interview between the two kings (Fœdera, ix. 747–50). The negotiations at first were hollow, and on their way to Provins, where Charles VI was, the ambassadors were attacked by Tanneguy Duchâtel, the Armagnac, at Chaumes in Brie (, iii. 313;, i. 359). After the murder of the Duke of Burgundy at Montereau, Umfraville helped to arrange the Anglo-Burgundian alliance. On 24 Oct. he was authorised to declare that Henry would accept the hand of Catharine with the reversion of the French crown as the price of his alliance. He accompanied Henry on his march to Troyes in the spring of 1420 (, iii. 388;, i. 130). He took a conspicuous part in the great tournaments with which Henry celebrated Christmas in 1420 at Paris (ib. p. 380). On Henry's return to England Umfraville remained in France, being constituted captain of Melun by the king (, p. 379;, ii. 27, 379). In January 1421 he was made marshal of France (ib. p. 383). He joined the expedition of Clarence to Anjou against his old enemies, the Scots, accompanied, if Hardyng can be trusted, with ten men only. Hardyng (pp. 384–5) tells a long story how Umfraville, seeing that the army was not ready, urged Clarence to delay fighting until holy week was over; and how Clarence, who envied his fame, reproached him with cloaking cowardice under religious scruples. Against his advice Clarence fought at Baugé on 22 March (Easter Eve), but the Scotto-Armagnac host was two to one, and he suffered a complete defeat. Umfraville, like Clarence, fell on the field. His body was recovered and taken to England to be buried (, p. 385).

Umfraville is described by his panegyrist, Hardyng, as of ‘goodly port, full gentle,’ while the Burgundian Chastellain calls him ‘vaillant chevalier et bien à douter’ (i. 225). He married Anne Neville, seventh child of his old protector, Ralph Neville, first earl of Westmorland (, Durham, iv. 159;, Complete Peerage, i. 95, says that he died unmarried). He left no issue, so that while his uncle Robert succeeded under the entail to Harbottle and Redesdale—and also apparently to Kyme—his personal representatives were his five sisters, between whose descendants the Umfraville barony, according to later legal doctrine, would still remain in abeyance.

(d. 1436) now became lord of Redesdale and Kyme. Apart from his possible share in the 1415 campaign, he remained under Henry V, as under Henry IV, mainly occupied on Scottish affairs. The Scots called him Robin Mendmarket, because of his burning Peebles on market day (, p. 366). He was sheriff of Northumberland, vice-admiral of the north, chamberlain of Berwick, warden of Roxburgh Castle, and finally of Berwick; and in 1417 helped in checking the Scots while Henry fought the French (cf. ,


text: York and Maryland Line Railroad Company v. Winans


text: Talk:York and Maryland Line Railroad Company v. Winans


text:
York and Maryland Line Railroad Company v. Winans/Opinion of the Court

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

The case is stated in the opinion of the court.

It was argued by Mr. J. Mason Campbell, and Mr. Johnson, for the plaintiff in error, and by Mr. St. George T. Campbell, and Mr. Latrobe, for the defendant.

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

The court below (Judge Kane) charged the jury, in substance, that, as the infraction complained of was committed on the road of the plaintiff in error, though the cars were owned by the Baltimore and Susquehanna Railroad Company, the plaintiff in error was responsible in this action, because the profits accruing from the use of the cars were divided between the two companies.

He also charged the jury, that in estimating the amount of damages, they were to be guided by the sum which had been fixed by the witnesses as the fair compensation for an annual license for each car, and were to allow such sum annually, for each car, for a period of six years antecedently to the institution of the suit.

The plaintiff in error will contend that the learned judge below erred in both parts of his charge:--

1. As to the liability of the plaintiff in error. The cars, which were assumed to be made in violation of the patent of the defendant in error, were not built by, and did not belong to, the plaintiff in error. It is not liable, therefore, for their construction, nor is it pretended that it has sold any. If liable at all, it is for a use of the cars.

Now, in point of fact, it did not run the cars in question over its road.

The whole transportation was done by the Baltimore and Susquehanna Railroad Company; and if there has been any user by the plaintiff in error of cars, in violation of the patent of the defendant in error, it is a constructive user, growing out of the agreement between it and the Baltimore and Susquehanna Railroad Company, by which one third of the net revenue from transportation is credited to it, and a user in fact, under that agreement, by the Baltimore and Susquehanna Railroad Company.

This agreement is supposed, by the learned judge below, to do one of two things; either to constitute the relation of principal and agent between the two corporations, or to make them partners.

As to the first view, it may be observed, that the subject of the agency being the running of the cars, and the plaintiff in error having nothing to do with the running, it can hardly be deemed an agent, in the face of the fact that it does nothing in the agency. With still less plausibility can it be regarded as a principal; its supposed agent in that case, the Baltimore and Susquehanna Railroad Company, not only owning and running the obnoxious cars itself, but doing so by force of its own power in the premises.

As to the other view, to wit, that of a partnership between the plaintiff in error and the Baltimore and Susquehanna Railroad Company, a more extended examination is necessary.

In the first place, it seems impossible to establish this hypothesis, without conceding that these two corporations would have had a right to form a partnership expressly. Whether the partnership be express or implied, only relates to the nature of the evidence by which it is shown. The thing is the same, however proved. Now, the power to form a partnership is one which corporations do not possess, unless it be given in express terms, or by necessary implication. Sharon Canal Co. v. Fulton Bank, 7 Wend. 412; Canal Bridge v. Gordon, 1 Pick. 305.

There are neither such words nor implication in the present instance, and, of consequence, no partnership can be deduced where the power to create that relation is wanting.

If, however, the power be conceded, and no partnership has been in terms formed, it is only to be implied, in law, from the division of the net profits of transportation between the two corporations, provided for by their agreement.

But the reception of a part of the profits is not always attended with this consequence. Seamen and clerks may receive their pay in this form without becoming partners thereby, either inter se or as to third persons. So a landlord may get his rent in the shape of profits, and not be made a partner by such receipt. The test seems to be in the animus of the parties as to the reservation of profits, and not in the reservation itself. If their purpose be compensation, merely, to one furnishing something necessary to the business, a partnership is not held to be created. Such is the present case, where it is plain that the object was merely to compensate the plaintiff in error for the use of its road, and to make the rent therefor commensurate with the use. Story on Part. §§ 36, 38; 3 Kent's Comm. 33; Perrine v. Hankenson, 6 Halsted, 181; Heimstreet v. Howland, 5 Denio, 68; Heckert v. Fegely, 6 Watts and Serg. 143; Boyer v. Anderson, 2 Leigh, 550; Loomis v. Marshall, 12 Conn. 69; Collyer on Part. § 44, and note.

Conceding, however, argumenti grati a, that the relation of principal and agent, or of partners, existed between the two corporations, it cannot be denied that the infringements complained of were not committed by the plaintiff in error, but by the Baltimore and Susquehanna Railroad Company.

Now, the tortious acts of the company last named cannot be considered as acts done in the ordinary course of the business between it and the plaintiff in error, whatever be the relation between these parties; and to make the plaintiff in error responsible, it must be shown to be privy to their commission, before or after. Story on Agency, § 455; Collyer on Part. § 457; Keplinger v. Young, 10 Wheat. 358, 363.

But the learned judge below excludes altogether this element of accountability, and makes the plaintiff in error liable, without putting the fact of privity to the jury.

2. The charge below is also erroneous as to the amount of damages recoverable.

It gave the jury to understand, that they could find against the plaintiff in error for a user of the patent of the defendant in error, for six years preceding the commencement of the suit.

But the declaration only charged (Record 4) a user during the term of seven years, for which the extension of the patent had been granted.

Now, the seven years' extension began only on the 1st October, 1848, and all, therefore, that was recoverable under the declaration, was for a user from the 1st October, 1848, to the time of suit brought, (April, 1851,) a period of less than three years, instead of six, as charged.

3. The suit being only for infringements committed during the extension of the patent, it is further submitted, that the extension being by the acting commissioner of patents, is unavailing to give the defendant in error any rights.

If this court, in 4 How. 646, meant to affirm the validity of the acts of such a functionary, as is supposed by Mr. Justice Woodbury, in 1 Woodbury and Minot, 248, this point is not now open; but if it be open, the plaintiff in error relies on the first and second sections of the patent act of 1846, as governing the patent-office, to the exclusion of the acts of 1792 and 1795. 1 Stat. at Large, 281, 415.

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

1. The extension of the patent by the acting commissioner, &c. (The argument upon this head is omitted.)The remaining exceptions to the charge of the judge, were:--

1. 'That the York and Maryland Line Railroad Company, and the Baltimore and Susquehanna Railroad Company, were two distinct companies as to third persons.' The force of this exception is not clearly apprehended. If it is meant to convey the idea, that the judge should have charged, that the two companies were the same, and not 'two distinct companies as to third persons,' it is difficult to perceive, first, how it could have been sustained in point of law; or, second, how it would serve the defendants below. They were two corporations, had two charters, from different sovereignties, and had never been united by law. How could the judge say, then, that they were not two distinct companies?

But if they were the same company as to third persons, the judge should (as this exception supposes) have so charged; and then the main point of defence, that the use by one was not the use by the other, would have utterly failed.

In fact, however, upon this point, all the judge said was, that if there were two tort feasors, a suit could be maintained against either,-for which proposition no authority is needed.

2. The second exception to the charge is:--

In charging, further, that, whether the relation between them was that of agency or partnership, the liability of defendants was the same.

As a legal proposition, standing singly, this can hardly be questioned.

One of two partners is liable to an action for an infringement, as for any other tort committed by his authority, or participated in by him. This was all the judge said. He was not asked to charge,

1. That two corporations cannot form a contract of copartnership.

2. Or, that, under the evidence in this cause, there was no proof of partnership.

3. Or, that there was no evidence of agency by which the defendants could be held liable.

Not being asked, he expressed no opinion on the point, but simply said, whether the relations were those of partners, or principal and agent, neither would affect the plaintiff's right. In this, there was, it is admitted, no error. If the defendant desired specific instructions, they should have been prayed.

The judge, by limiting his illustration to partnership or agency, actually favored the defendants; for he might have charged, that, under the facts, no matter by what name the relation of the companies was called, the defendants were liable, participating, as they did, in the tort. Grant that no copartnership contract can lawfully be made between two corporations; yet, if they did make it, shall they be allowed to allege its unlawfulness against a third party, whose property is tortiously used for their profit?

If they do make such a bargain, whether lawful or otherwise, and it result in a use by them of the patented improvement, the unlawfulness of the contract by which the use was accomplished can be no defence.

They are complained of for one unlawful act, and this would be to defend it by showing another.

If they participated in the use of the patented thing, no matter how, whether under a lawful or unlawful contract, they are liable. It is the doing of the thing, and not the mode in which it is done, that is complained of.

Without defining the relations of the parties, the defendants, upon this view, are clearly liable.

Whether the contract was lawful or unlawful, its effect was to make the act of one the act of the other; the use by one the use by the other.

If, however, the relation of the two companies is here to be considered, and its character, not made the subject of an express point in the court below, is to be argued, it will be contended, that such a use of the thing patented was proved as made the defendants liable, in any view that can be taken of the case.

1. Whether the use proved was to be regarded as a direct and independent use by the defendants below.

2. Or, as a use through their agents, (the Maryland company,) with their knowledge, by their authority, upon their property, and of which use they directly received a portion of the profits.

3. Or, as a use, as a partner, with the Maryland company, paying a proportion of losses by, and receiving a proportion of the profits, as such, from, the use.

4. Or, whether contributing, as they did, their road, which was essential to the availability of the cars of the Susquehanna company, the defendants below were to be looked upon, as suggested by the judge's charge, as the agents of the former company.

1. There was evidence of a direct and independent use by the defendants below, to the prejudice of the patentee.

The defendants were a Pennsylvania company, fully organized, and having possession of their road.

The uses made of their road, were their own uses. The road and the cars upon it are a single machine, the use of a part of which involves the use of all other parts. The cars are useless without the road. The road is useless without the cars. The terms upon which the cars are permitted to be used are immaterial. The injury complained of is the use.

It is this which distinguishes this case from the case of Keplinger v. Young, in 10 Wheaton, 358. There Young was held not to be liable, because he only purchased the product of a machine; but it would have been different, had he taken the machine into his own keeping, and used it.

Indeed, in that case, the court intimate, that had the facts, from which it might fairly have been inferred that Young used the machine, been before them, the result might have been different.

2. Even if the fact of the ownership of the cars by the Maryland company is inconsistent with this view, yet the Maryland company using the defendants' road, only through their consent, can occupy no other position than that of agents, for whose acts, done in the course of their business, the principals must be responsible, especially as they are directly benefited by them.

The Pennsylvania company may, by law, run cars on their own road. The Maryland company has no right to do so, by law, within Pennsylvania. Their charter gives and can give no such authority, and such running would be a nuisance, if done by them in Pennsylvania, and could not be justified under their own charter. The Pennsylvania company, duly chartered, built a road; they need rolling stock, and the patented cars are used as such, and they receive one third of the net profits of the earnings thereof. Without this, the Maryland company could not use the Pennsylvania road; by it, they become, for a fluctuating compensation, the agents of the Pennsylvania company, to stock and run their road. If there can be no partnership, they enter Pennsylvania by virtue of this agency alone. A portion of the things done by them in the fulfilment of that agency, by the authority, with the sanction, and upon the property of the defendants, is to use the patented improvement. A proportion of the repairs upon it are charged to the principal; a portion of the profits from its use is paid to the principal. No authorities are needed to show, that, for an injury by an agent, the principal or the agent may be sued. The ownership of the infringing machine is immaterial; its use alone is in controversy; and it will be submitted, that such an use, by an agent, as is here proved, will render the principal liable.

3. Or, regarding the use as the result of a partnership, with the Maryland company, the defendants paying a proportion of losses and receiving a proportion of the profits, as such, from the use, the latter must be liable to the patentee.

Under this head, the second of the exceptions to the charge of the judge will be properly considered.

There was some relation between the companies, surely. What was it? If in fact, it be, that the Maryland company were simply using a Pennsylvania charter to carry on their business-a change of name merely-the stock, property, and every thing being owned by the same parties, then, in Pennsylvania, the Maryland company's use was the Pennsylvania company's use.

The judge does not, however, define the character of this relation; he was not called upon to do so.

If it were needful, it might be well contended that the relation of the companies was that of partnership. Corporations may form partnerships under circumstances, so far, at least, as to preclude them from setting up separate rights to the prejudice of third persons.

In the case of Canal Bridge v. Gordon, 1 Pick. 297, which was a case where a bridge and an embankment leading to it were owned by different corporations, Parker, C. J., after referring to the technical difficulties of considering several corporations as copartners, goes on to say, what covers precisely the present controversy, 'and yet, if they are all composed of the same individuals using several corporate powers for the same end and purpose, with nothing but the form of a record to distinguish them, equity would seem to require that they should not be allowed to sever to the prejudice of any person with whom either might contract.'

And, for the same reason, where both are benefited by the wrong done by one of them, they should not be allowed to sever.

That contracts of the same nature are looked upon and treated as partnerships, will further appear by reference to the following authorities: 4 Law and Equity Reports, 171; 2 Law and Equity Reports, 319.

In the present case, there was every element required to form a partnership contract.

It is not the case where a portion of the gross receipts was used as a mode of calculating rent, as in 5 Denio, 68, cited by plaintiff in error, but a right to a share of the net profits, as such, which that case decides to be a criterion of partnership. Nor is it the case in 17 Wendell, 412, where it was held that two corporations cannot sue jointly, as corporations, in contract; but where it was not held that if, in fact, such copartnership existed, either could escape liability for a tort arising in that relation, by alleging its unlawfulness.

The law of New York, upon this question of partnership liability to third persons, is clearly settled in Bostwick v. Champion, 11 Wend. 571, where it was held that where A, B, and C run a line of coaches, the route being divided between them into sections, each furnishing his own horses and coaches, and hiring drivers, and paying the expenses of his own section, the fare, less the tolls, being divided in proportion to the number of miles run, that a passenger injured by negligence of the drivers of A's coach, might sue them all.

The court is referred to the opinion of Judge Nelson, at page 584, and to same case, Chancellor Walworth's opinion, 18 Wendell, 175.

A division of profits, as profits, and a right to file a bill for an account, may be regarded as conclusive evidence of a copartnership contract.

Both, it is submitted, concur here.

The distinction, which it is believed will reconcile all the cases, is between a stipulation for a compensation proportioned to the profits, and one for an interest in such profits.

To this effect the cases are numerous. See Carey on Part. 9; Story on Part. 36; Bissett on Part. 4; Collyer on Part. 44, and the cases here cited.

Every element referred to by these authorities exists here.

If they may so contract as partners, it will be contended, that the evidence exhibits every feature required by law for that relation.

If not liable as joint tort feasors, or partners, from want of legal authority to make such a contract, or if the contract as made does not by law create this relation, still, the defendants are liable by reason of the use made of this road by the Susquehanna company.

Mr. Justice CAMPBELL delivered the opinion of the court.

The plaintiff is a corporation existing under a charter from the State of Pennsylvania, and authorized to construct a railroad from the town of York to the Maryland line. Its stock was subscribed for by the Baltimore and Susquehanna railroad company, a Maryland corporation, and their joint capital is vested in a continuous railroad from the city of Baltimore to York. The management of the road is committed to the Maryland company, which appointes the officers and agents upon it, and furnishes the rolling stock necessary for its operation. The president and secretary of the two companies are the same. The directors of the Pennsylvania corporation (plaintiff) are selected by the Maryland company, and are qualified by a transfer of one or more shares of its stock to them, shortly before an election, and which they return on vacating their office. This nominal organization is made necessary by the charter, which requires that the majority of the officers shall be citizens of Pennsylvania, and that annual reports of the condition and business of the company shall be rendered to the legislature. To preserve appearances with the legislature, an annual statement is made.

In this, the gross receipts of the entire road for the year are ascertained, and the expenses deducted; the balance is then divided, one third being assigned to the plaintiff; but no money passes between the corporations. In these expense accounts, the salaries of officers, conductors, and engineers, the cost of locomotives and fuel, of the repairs and insurance of cars, and the losses of business, enter as constituent items. It was admitted upon the trial of the cause, that a number of cars made according to the specification of the patent of the defendant, had been used upon the road without his license, and for which he brought this suit. A verdict was rendered in his favor, and the judgment thereon is brought to this court, upon exceptions to the instructions of the circuit court, to the jury.

The court charged the jury, that the road on which the infraction was committed was held under a Pennsylvania charter to the defendant in that court; that the transportation on the road was carried on by the Maryland corporation; and that the profits acruing from the use of the cars upon the road, that is, the profits of the infraction, are nominally divided between the two companies. That, upon these facts, the plaintiff is entitled to recover against the present defendants, whether they are to be regarded as partners, or as principal, or agent of the Maryland corporation.

The plaintiff complains here of this charge, for that the cars employed were not built by, and did not belong to the company; that they were the exclusive property of the Maryland corporation; and that the agreement to divide the profits did not constitute a partnership, nor evince a relation of principal or agent to impose a liability. This conclusion implies, that the duties imposed upon the plaintiff by the charter, are fulfilled by the construction of the road, and that by alienating its right to use, and its powers of control and supervision, it may avoid further responsibility. But those acts involve an overturn of the relations which the charter has arranged between the corporation and the community. Important franchises were conferred upon the corporation to enable it to provide the facilities to communication and intercouse, required for the public convenience. Corporate management and control over these were prescribed, and corporate responsibility for their insufficiency provided, as a remuneration to the community for their grant. The corporation cannot absolve itself from the performance of its obligations, without the consent of the legislature. Beman v. Rufford, 1 Simon, N. S. 550. Winch v. B. and L. Railway Company, 13 L. and E. 506.

If, then, the case had terminated with the facts that the infringement of the defendant's patent had taken place, by the acts of persons using the corporate name of the plaintiff, with the assent of the corporate authorities, their liability would have been fixed.

But the case before us is, that the motive power on the road partly belongs to the plaintiff; that the agents and officers employed are in its service and are paid by it; and that the cars are fitted and repaired at the common expense of the two corporations. It follows, therefore, that the plaintiff is a principal, cooperating with another corporation, in the infliction of a wrong, and is directly responsible for the resulting damage.

Nor will the plea that the corporation has no independent nor responsible existence, as regards the Maryland company, and that its display of a president and directors, of conductors, engineers, and agents, of annual elections and annual statements, import only a formal and illusive representation before the legislature of Pennsylvania, or their constituents, of a compliance with the conditions of the charter, avail the plaintiff. It is certainly true that the law will strip a corporation or individual of every disguise, and enforce a responsibility according to the very right, in despite of their artifices. And it is equally certain that, in favor of the right, it will hold them to maintain the truth of the representations to which the public has trusted, and estop them from using their simulation as a covering or defence. Walland Canal Co. v. Hathaway, 8 Wend. 480.

The supreme court of Pennsylvania, in Peters v. Ryland, 8 Harris, 497, has announced principles decisive of this case.

The court held that the owner of a passenger car employed on a railroad belonging to the State, and the motive power and superintendence of which is furnished by the State, is responsible for the misconduct of the public agents. It says: 'The case before them is sui generis; but it comes much nearer to that class of decisions in which it has been held, that several parties engaged in carrying over different portions of the same line of conveyance, each sharing in the profits of the whole route, and of course of each section of it, are all responsible for the faithful discharge of their duty, and liable to respond in damages for any injury which results from the negligence or unskilfulness of any of the proprietors and servants.' 11 Wend. 571; 18 Ib. 175; 19 Ib. 534.

'The State, as well as the carrier, is paid for every passenger transported on this railroad, which shows their community of interest; and if there be a common liability, that of the State cannot be enforced by action; and this circumstance does not diminish that of the carrier; because they have a common interest, however, and share the business of transportation, it is apparent that in holding the party before us to answer for the negligence of the State's agents, we do not punish one man for the misfeasance of another's servants.'

The objection taken to the patent, that it is signed by 'an acting commissioner of patents,' and that the record contains no averment nor proof of his title to the office, is not tenable. The court will take notice judicially of the persons who from time to time preside over the patent office, whether permanently or transiently, and the production of their commission is not necessary to support their official acts. Wilson v. Rousseau, 4 How. 686.

The judgment of the circuit court is affirmed.

This cause came on to be heard, on the transcript of the record, from the circuit court of the United States for the eastern district of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby, affirmed with costs, and interest until paid, at the same rate per annum that similar judgments bear in the State of Pennsylvania.


text: Talk:York and Maryland Line Railroad Company v. Winans/Opinion of the Court


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United States v. Coxe (58 U.S. 41)

THIS was an appeal from the district court of the United States for the eastern district of Louisiana.

In June, 1846, Coxe and thirteen others filed a petition in the district court, under the acts of Congress passed in 1824 and 1844, the purport of which acts has been so often explained in the preceding volumes of these reports, that it is unnecessary now to recapitulate it.

The United States pleaded the general issue; and the cause was tried, without the intervention of a jury, and judgment rendered in favor of the petitioners, on the 30th of May, 1849.

The United States prayed an appeal in open court, which was allowed on the 6th of June, 1849.

It was argued by Mr. Cushing, (attorney-general,) for the United States, who made only the following points, viz:--

Without any more particular statement of the law or the evidence of these cases, it is supposed that it will be sufficient to state, that the claim alleged by the petitioners was derived solely from the same 'Maison Rouge grant,' which has heretofore been fully considered and decided by this court, in the case of the United States v. King, &c., reported in 3 How. 773, and 7 How. 833.

This court having finally adjudged and determined in that case, that the 'Maison Rouge grant,' as it was called, conveyed no private right or property to the said Maison Rouge, and the petitioners claiming from him as the proprietors, in virtue of said grant, it must follow that the decrees in favor of the petitioners are erroneous, and ought to be reversed.

Mr. Coxe, for the appellees, filed an elaborate argument, in which he contended that the record was imperfect, and did not contain sufficient grounds for a reversal; that this imperfection was owing to the fault of the United States; that documents, which were necessary for the verification of the appellee's title, ought to be in the record, and were not there; that the rules of this court prescribe that no cause shall be heard until a complete record is filed; that, under the acts of 1824 and 1844, the proceedings in this case were to be conducted according to the rules of a court of equity, which require the entire case to be presented here as it was exhibited to the court below; that the presumption must be, where no error can be assigned on the face of the record, that the judgment of the court below was right; and that looking to evidence dehors the record, if such course is allowable, the facts and circumstances of the case require an affirmance of the decree.

In commenting upon the preceding decisions of this court, Mr. Coxe contended that they were pronounced upon a case at law, and made the following points:--

1. That we are now in a court of equity, and not of strict common law-a system unknown in Louisiana.

2. We are now entitled to the right, of showing that if by such a document as that bearing date in June, 1797, a title did not pass to the Marquis de Maison Rouge, as his private property, according to the laws of Spain; yet that, in conformity with the established usages of the Spanish government, it did.

3. That if the preceding position is denied, we have still the right to show that, under the circumstances now brought to the notice of this court, sitting as a court of equity, we are warranted in making it the foundation of an argument in favor of the present title of the appellees, wholly unaffected by any previous decision or even dictum of this court, of an adverse character.

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

title: United States v. Coxe (58 U.S. 41)


text: Talk:United States v. Coxe (58 U.S. 41)

title: Talk:United States v. Coxe (58 U.S. 41)


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United States v. Coxe (58 U.S. 41)/Opinion of the Court

This case cannot be distinguished from the case of United States v. King et al. 7 How. 833, and of United States v. Turner's Heirs, 11 How. 663.

The decree of the district court must therefore be reversed, and a mandate issued to the court below to dismiss the petition.

This cause came on to be heard, on the transcript of the record, from the district court of the United States for the eastern district of Louisiana; and it appearing to the court that this case cannot be distinguished from the case of the United States v. King et al. 7 How. 833, and of the United States v. Turner's Heirs, 11 How. 663, it is thereupon now here ordered, adjudged, and decreed by this court, that the decree of the said district court in this cause be, and the same is hereby, reversed and annulled, and that this cause be, and the same is hereby, remanded to the said district court, with directions to dismiss the petition.


text: Talk:United States v. Coxe (58 U.S. 41)/Opinion of the Court


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Barribeau v. Brant

This was an appeal from the circuit court of the United States for the district of Missouri.

The case is stated in the opinion of the court.

It was argued by Mr Bradley, for the appellants, and by Mr Lawrence, for the appellees.

The argument consisted, upon both sides, in the application of well-established principles of law to the facts in the case, as disclosed by the evidence. There being no principle of law disputed, it is not necessary to state the contradictory testimony which furnished the basis of the respective arguments.

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

title: Barribeau v. Brant


text: Talk:Barribeau v. Brant

title: Talk:Barribeau v. Brant


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Barribeau v. Brant/Opinion of the Court

This is an appeal from the decree of the circuit court of the United States for the district of Missouri, sitting as a court of Equity.

The case is this: Pierre Barribeau was seised in fee-simple of a lot of ground in the town of St. Louis; and, by deed dated May 8, 1829, conveyed it to Joseph White, in trust for the grantor, during his life, and after his death for his two sons. Adrian and Pierre, and his adopted daughter, Euphrasie, who had grown up in his family.

After the death of the grantor, his sons, Adrian and Pierre, and White, the trustee, joined in a deed to Brant, the appellee, for all the interest of the two sons in the lot. But at the time this deed was made, Pierre had not attained the age of twenty-one years. Subsequently, however, he executed a deed of confirmation, and in that deed professed to convey two undivided third parts of the premises.

Euphrasie, the adopted daughter, executed a deed to Amaranth Loiselle, purporting to convey the whole of this lot. And, afterwards, she and Amaranth made separate deeds, on the same day, to Samuel Merry, for her third part of the premises; and Merry afterwards conveyed to Brant. If, therefore, the several deeds above mentioned are valid, Brant is entitled to the whole lot.

Adrian died intestate, and without issue. And, after his death, Pierre and Euphrasie filed this bill, charging that all of the deeds made by them respectively, and by Adrian in his lifetime, were obtained by misrepresentation and fraud; that they were illiterate, and did not understand the object and effect of these instruments when they were executed; and that the consideration paid was far below the real value of the property. The bill further charged that Pierre was still under the age of twenty-one when he made the deed of confirmation.

The answer of Brant denies all fraud and misrepresentation, and avers that the parties were perfectly aware of the contents of the several instruments when they were executed, and that the price was a fair one, according to the value of the property at that time; and that Pierre was of full age when he made the deed of confirmation.

Many witnesses were examined by the parties in support of their respective allegations, and, at the final hearing, the bill of the complainants was dismissed by the circuit court. And from this decree the complainants have brought this appeal.

It would be tedious and useless, in this opinion, to go into an examination of the testimony given by the different witnesses. Much of it has very little if any bearing upon the question in dispute. It is very evident, indeed, that the complainants were illiterate and weak-minded. But there is abundant proof that they were perfectly aware of the contents of the several instruments, and of the object and purpose for which they were executed. And, although the prices paid for the different interests were undoubtedly very moderate; yet they were not so inadequate as to authorize the court to declare the deeds void on that ground. The inadequacy must be tested by the value of the property at the time of the sales, and not by its present value. The first deed from the two Barribeaus and White to the respondents, was made September 3, 1833. The deed of confirmation from Pierre, August 7, 1836; and the deeds from Euphrasie, and Amaranth Loiselle to Merry, February 1, 1836. The complainants did not seek to disturb these conveyances, or take any measures to impeach them, until March 20, 1849, when this bill was filed, and when property in St. Louis was greatly enhanced in value, as compared with its value in 1833 and 1836. It is, perhaps, the great increase in the value of this property between the time of the several sales and the time of filing this bill, that has led to this controversy. But upon the evidence in the record, we think the charge of fraud and misrepresentation is not sustained; and that there is sufficient proof, that Pierre was of full age at the time the deed of confirmation was executed.

It has been contended, on the part of the complainants, that under the deed from Pierre Barribeau, the elder, to White, the three cestui que trusts took a joint interest, and that, upon the death of one or more of them without lawful issue, the share of the deceased was limited over to the survivors or survivor. And as Adrian died before the filing of the bill, and Pierre has died pending this appeal, and both of them without lawful issue, Euphrasie, the surviving complainant, claims the entire lot, by virtue of the limitations over in the deed of trust. And if this be the construction of the deed, she is entitled to a decree for the shares of the two sons, although she has sold and conveyed her own one third, as above stated.

But this construction cannot be maintained. The trust deed, it is true, is unskilfully drawn. But is very clear, upon the whole instrument, that an equitable interest, as tenants in common in fee-simple, was secured to them by the deed; and that their conveyances, together with that of the trustee, passed the whole interest, legal and equitable, to the respective purchasers.

It appears that shortly after this bill was filed, Pierre, the complainant, conveyed all his interest in the property to Benjamin A. Massey, in trust for a natural daughter, born of an Indian mother, and living in the Indian country; and a motion has been made to make him a party in this court, as the representative of Pierre.

The decision of this motion, either way, could have no influence upon the rights of the parties. For as the court is of opinion that the deed of confirmation made by Pierre was valid, and conveyed his one third to the appellee, the decree in the court below dismissing the bill, must be affirmed, even if Massey was permitted to appear.

But in this stage of the proceedings he cannot be permitted to become a party, as the representative of Pierre. The bill was filed by Pierre, and this appeal taken by him. He has died pending this appeal; and the only persons who, upon principles of law and the rules of this court, can be permitted to appear in his stead, are those who, upon his death, succeed to the interest he then had, and upon whom the estate then devolves.

But the interest of Massey was acquired in the lifetime of Pierre, and no new interest accrued to him upon Pierre's death; and if he desired to become a party, in order to maintain his rights as trustee, he should have applied for leave to become a complainant while the case was pending in the circuit court. The estate has not devolved upon him by the death of Pierre, and he has the same interest now which he had upon the execution of the deed; and has no greater right to become a party here, after Pierre's death, than he had before.

In the opinion of the court, therefore, as Pierre's death was suggested at December term, 1851, and his legal representatives have not appeared by the tenth day of this term, the bill must, as to him, be entered, abated under the 61st rule of this court. And, as regards Euphrasie, the other complainant, it must be dismissed, with costs.

This cause came on to be heard, on the transcript of the record, from the circuit court of the United States for the district of Missouri, and was argued by counsel. On consideration whereof, it is now here ordered and decreed, by this court, that this appeal, as to Pierre Barribeau, be, and the same is hereby, abated, pursuant to the 61st rule of this court; and it is further ordered and decreed that this appeal, as to Euphrasie T. Perry, be, and the same is hereby dismissed, with costs.

title: Barribeau v. Brant/Opinion of the Court


text: Talk:Barribeau v. Brant/Opinion of the Court


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Wickliffe v. Owings

THIS was an appeal from the circuit court of the United States for the district of Kentucky, sitting as a court of equity.

It was a bill filed by Wickliffe, under a statute of Kentucky, to quiet the title to sundry tracts of land of which the complainant was in possession, and to which he alleged that he had the legal title. Owings, it was averred, had removed to Texas, and become a citizen of that State; but had visited Kentucky, and set up a claim to the lands, threatening to institute suits against the complainant.

Owings, in his answer, denied the jurisdiction of the court, upon the ground that he was not a citizen of Texas; denied that the complainant had any title to the land, or, that if he had one, asserted that it was obtained by fraud; and alleged, that prior to the institution of this suit, he, himself, had filed a bill against Wickliffe, in the Bath circuit court of Kentucky, and relied on the priority of his bill in bar of Wickliffe's suit.

The district judge, who tried the cause in the court below, dismissed the bill, from which decree Wickliffe appealed to this court.

It was argued for the appellant by Mr. Preston, and a brief was also filed upon the same side by Mr. Charles A. Wickliffe. No counsel appeared for the appellee.

The arguments consisted chiefly in examinations of the testimony respecting the citizenship of Owings, in Texas, and of the various muniments of the title of Wickliffe to the lands; and also of a comparison of the dates of the institution of the respective suits in the state court and in the circuit court of the United States. As these involved no general principles of law, it is unnecessary to introduce them into the report of the case.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Wickliffe v. Owings


text: Talk:Wickliffe v. Owings

title: Talk:Wickliffe v. Owings


text:
Wickliffe v. Owings/Opinion of the Court

The plaintiff filed his bill in the circuit court of the United States for Kentucky, against Thomas Deye Owings, by which he assumes to be the owner, and in the lawful possession, of a number of tracts of land, lying in different counties of that State, which had at one time been the property of the defendant, but of which he had been legally divested, and notwithstanding claims, by the instigation and advice of other persons, to the prejudice and vexation of the plaintiff. The object of the bill is to establish the title and to quiet the possession of the plaintiff.

The facts disclosed by the record are: that, in the years 1817 and 1818, the defendant was possessed of a very large estate in lands, but was indebted beyond his means of payment. During those years, two of his creditors (Luke Tiernan and Samuel Smith) respectively recovered, in the circuit court of the United States for Kentucky, judgments for the aggregate sum of twenty-five thousand dollars and upwards; the one by default, the other by confession. Immediately thereafter, the defendant adopted a system of legal proceedings, to postpone the day of payment of those judgments, which terminated in the augmentation of the debt, and the introduction of other persons, in the character of sureties, to share in the entanglements of the debtor. By the interposition of injunctions, replevin, and stay bonds, and for the want of bidders at execution sales, the defendant withstood his creditors until 1824.

In November, 1824, Tiernan purchased a number of the tracts in dispute, and others in 1827 and 1834, under the executions, and for which he has the deeds of the marshal.

In 1820, Samuel Smith assigned his judgment to Ellicott and Meredith, in trust for creditors, and these persons, between 1826 and 1829, purchased nearly, if not all, of the tracts for which Tiernan had acquired a title.

In 1824, before any of these sales, Owings had conveyed the lands to the sureties whom he had involved upon the bonds before referred to in these and other cases, for their indemnity, and delivered to them the possession of the property, and ceased to have any control of it. He gave to them authority to 'sell, dispose of, and convey any of the estate, whenever it might be necessary for their protection,' and in such cases as a majority of them might consider as most beneficial to all concerned, in case their principal was in default. Tiernan, and Meredith and Ellicott, in 1827, commenced suits for various parcels of the lands they had purchased at the marshal's sales, in the circuit court of the United States, and recovered judgments. The questions involved in the issues, appear to be the regularity of the sales by which they acquired title. In 1829, after a portion of these trials, the sureties and assignees of Owings executed a deed to Ellicott and Meredith, for the tracts of land described in the bill, upon 'a general compromise' with them, by which the debt to Samuel Smith, with the various bonds taken to secure it, were surrendered to be cancelled. The record shows that Owings was advised of this settlement, and expressed approbation of it. Some time after this settlement with the assignees of Owings, an arrangement was concluded between Tiernan, Ellicott, and Meredith, and the Bank of the United States, by which the bank agreed to reimburse Tiernan for his debt and advances, and to cancel an indebtedness of Smith, and to take the title to the property they had acquired by these proceedings. This arrangement was carried into effect by a suit in the circuit court of the United States, in which a sale was ordered, at which, in 1834 and 1835, the bank became the purchaser.

In 1836, the bank sold its title to the plaintiff in this suit. In order to free the title from any imperfections, a bill was filed in the circuit court of Bath county, Kentucky; and in that suit, the titles of Tiernan, Ellicott, and Meredith, and the bank, were, in 1848, conveyed to him.

In the course of these proceedings, a number of confirmatory deeds were taken from purchasers of portions of the property at the marshal's sales, which it is unimportant to describe. To appreciate fully the case of the plaintiff, it is proper to notice a transaction between him and Mr. Bascom, the son-in-law and attorney in fact of Owings, in 1837. The plaintiff, after the acquisition of his titles from the bank, instituted suits for the recovery of the family residence and other lands of the defendant, in the courts of Kentucky. At the trial term of these suits, a proposal for an adjustment was submitted to the plaintiff, by Mr. Bascom, (under the advice of counsel,) which was accepted by him. He agreed to convey to Mrs. Bascom the family residence and other lots, a balance due on the judgment of Tiernan, to release the claim for mesne profits, and to dismiss the suits pending, each party to pay costs. Owings and Bascom were to confirm the title acquired by the plaintiff, to the lands described in the bill. This settlement was executed by the delivery of the proper evidences of title. Those in the name of Owings were executed by Bascom, as his attorney in fact.

The land conveyed to Mrs. Bascom has remained in the family till this time, and in 1847 was divided among the children of Owings, in a suit to which he was a party. The validity of the conveyance of Wickliffe to her, was asserted in that suit, and admitted in the decree of the court, as the basis upon which it was founded. Owings, in 1836 or 1837, left the United States for Texas; during the interval, from 1837 to 1849, the plaintiff was in the open possession of the property. Before the departure of Owings, the plaintiff had offered to reconvey to him the whole of his purchases, upon an extended credit and a reduced rate of interest, for the consideration of the debts and costs they represented; which proposal Owings acknowledged his inability to accept, and fulfil the obligations he would thus incur. In 1849, he was induced to return to the United States, and to renew the controversy which had been so long pending, by the assertion of pretensions hostile to the title of the plaintiff, and prejudicial to his useful and peaceful enjoyment.

The evidence shows that the lands are in the possession of the plaintiff, occupied by a numerous body of tenantry; that sales have been obstructed and rents diminished by the assertion of these claims.

The right of the plaintiff to relief is rested upon the general principles of equity, as well as a statute of Kentucky, to the effect 'that any person having both the legal title to, and the possession of land, may institute a suit against any other person setting up a claim thereto, and if the complainant shall establish his title the defendant shall be decreed to release his claim.' 1 Bro. and More, Stat. 294.

The jurisdiction of a court of chancery to grant perpetual injunctions for quieting inheritances, after the right and matter in question has been fairly settled by concurring verdicts, has been long established; and, in addition to this general ground for equitable interference, this case presents a strong claim for the interposition of the court, arising from the settlement between Bascom, as the attorney in fact of the defendant, and the plaintiff. The consideration of that settlement has been enjoyed for many years, by the family of Owings. We conclude that this arrangement, embracing the fact that a confirmatory deed to the plaintiff had been executed in his name, under the letter of attorney to Bascom, was communicated to him, and that it received his approbation. If additional assurances were, therefore, required to perfect the title of the plaintiff, and to maintain his quiet enjoyment, it is the duty of the court to exact them.

But if a question might arise upon the facts of this case, upon this branch of it, there will be none when we connect it with the statute of Kentucky:

'When the nature of our conflicting titles,' says the supreme court of that State, 'whether derived from the laws of Virginia or of this State, are considered, there is an apparent necessity of permitting the holder of the legal estate to call his adversary to the test when it cannot be otherwise reached. This act ought to be liberally expounded as a remedial statute.' Cates v. Loftus, 4 Mon. 439.

And in accordance with this view, that court decreed a release to one, having the legal title and possession from one who 'pretended a claim under a vague and void entry, without equity.' 1 Mon. 97.

And in another case, where the party in possession with title averred 'that the defendants pretended to have a claim upon it, and thereby disparaged his title, and obstructed him in the full enjoyment of his property.' Armitage v. Wickliffe, 12 B. Mon. 488.

This statute is too important a portion of the law of property in Kentucky, to be disregarded in the exercise of the equitable powers of the courts of the United States in that State; and without affirming that it can be so fully applied under the constitution of those courts as by the State tribunals, we are satisfied that its protection may be properly invoked in cases like the present. Clark v. Smith, 13 Pet. 195. The statement of the plaintiff's title shows that the lands described in his bill were sold as the property of the defendant, by a public officer, with legal process, issued upon valid judgments, and that the title of the purchasers have vested in him; that this title has been submitted to a court of law, and maintained in a succession of trials; that besides, the sureties who were bound for these judgments, and to whom the lands were delivered by the defendant for their indemnity, with powers to use them for that purpose, have transferred them, to relieve themselves and their principal, to the grantors of the plaintiff; that, in addition, the son-in-law, agent, and attorney of the defendant, to preserve a portion of his estate for his family, has confirmed in his name the title of the plaintiff, as we are bound to believe, with the knowledge and acquiescence of his principal, and that family still retains the consideration of this deed; finally, that the plaintiff, and those whose title he has, has been in possession since 1824.

The defendant resists the suit of the plaintiff for relief, by a denial, in his answer, of the averment that he is a citizen of Texas, and consequently the jurisdiction of the court. 2. By the plea that before this suit was commenced he had instituted one in the circuit court of Bath, Kentucky, contesting the plaintiff's title and provoking a full investigation into its validity, and that he could not be restrained from its prosecution there. 3. That the sales by the marshal were invalid, and that the conveyance executed by Bascom in his name to the plaintiff is void, for misrepresentation, fraud, and the want of consideration.

The doctrine of this court is settled, that when the jurisdiction of the circuit court appears, by proper averments, on the record, the defendant can only impugh it in a special plea. The 39th rule of practice for courts of equity in the United States, adopted by this court, excludes 'matters of abatement, objections to the character of parties and to matters of form,' from the answer, and confines its operation to 'matters in bar, or to the merits of the bill.' It is proper to say, that if the fact of citizenship was open to inquiry, the evidence sustains the allegation of the bill.

2. Whether we consider the commencement of the suit as dependent upon the filing of the bill with the clerk of the court, or the issue, service, or return of process upon it, there is no sanction in the evidence for the plea by the defendant of a prior suit pending in the circuit court of Bath county. The plaintiff's bill was filed and process issued before that of the defendant was entered, and the process from the court of the United States was executed more than a year before the service of a subpoena to answer, on the plaintiff. Nor are the imputations of fraud, oppression, and injustice, upon the conduct of the plaintiff, nor the charges that he acquired his titles by corrupt and champertous contracts, better supported. No evidence has been taken which authorizes the crimination of the plaintiff by such allegations, in any part of the complicated and involved controversies which he seeks by this bill to close.

Our conclusion is, that the plaintiff is entitled to the relief he asks for, and that the decree of the circuit court must be reversed, and a decree entered here conformable to this opinion.

This cause came on to be heard, on the transcript of the record, from the circuit court of the United States for the district of Kentucky, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said circuit court in this cause be, and the same is hereby, reversed and annulled.

And this court, proceeding to render such decree as the said circuit court ought to have rendered, doth order, adjudge, and decree, that the complainant has shown a legal title to all those tracts or parcels of land which are described and set forth in the two deeds in the record, executed by Owings and Bascom, dated 6th April, 1837, and marked No. 54, and by A. Trombo, commissioner, dated 25th day of September, 1848, and marked No. 58, in both of which the said complainant is the grantee, but excepting from this decree the lands which were conveyed to Mary N. Bascomb, by the said complainant, the 6th April, 1837, and as to which this decree has no application.

And it is further ordered, adjudged, and decreed by this court, that the said complainant has shown sufficient matter of equity to entitle him to a release, by Thomas D. Owings, or his heirs at law or devisees, or other legal representatives, of all their claim, and to be quieted in the possession and enjoyment of the said parcels of land.

And it is further ordered, adjudged, and decreed, that the said complainant do recover his costs in this cause in this court, of and from the said defendant.

It is therefore further ordered, adjudged, and decreed, by this court, that this cause be and the same is hereby, remanded to the said circuit court, with instructions to cause an appropriate deed of release and quitclaim to be prepared and executed by the said defendant, or his heirs at law or devisees, or other legal representatives of their rights, as aforesaid, and also that the said court issue an injunction to them commanding their agents, and attorneys, aiders and abettors, to refrain perpetually, from any molestation or disturbance of the right and possession of the said complainant, under any title of the said Thomas D. Owings, and that the said circuit court do execute and carry into effect all the provisions of the aforesaid decree of this court.


text: Talk:Wickliffe v. Owings/Opinion of the Court


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Page:Copyright, Its History And Its Law (1912).djvu/171

 a mere clipping does not comply with the statute. (C. O. Rule 37.) The date of publication of a periodical is not necessarily the printed date of issue, and the actual day of publication should be stated in the application, whether for the registration of the periodical itself or a contribution to it.

The Copyright Ofifice has prepared blank forms in library card shape, which are furnished applicants free of charge, for the several classes of applications mentioned in the law, the cards being in pink, except as hereafter stated, lettered and numbered as follows: (A) book by citizen or resident of the United States; (A New ed.) new edition of book by citizen or resident of the United States; (A for.) book by citizen or resident of a foreign country, but manufactured in the United States; (A) edition printed in the United States of book originally published abroad in the English language, all these being double cards including affidavit of American manufacture — supplemented by blue cards providing with specific instructions, (A) for separate affidavit of American manufacture from type set or plates made in the United States, and (A) for lithographic or photoengraving process within the United States; (A) book by foreign author in foreign language; (A) ad interim copyright — book published abroad in the English language; (A contribution to a newspaper or periodical; (B) periodical, — for registration of single issue; (B) periodical, — general application and deposit, supplemented by a white blank for depositing single subsequent issues; (C) lecture, sermon, or address prepared for oral delivery; (D) published dramatic composition; (D) dramatic composition not reproduced for sale; (D') dramatico-musical composition; (E) published musical composition; (E) musical composition not reproduced for sale —