text:
Ex parte in the Matter of Secombe

THIS was a motion for a mandamus to be directed to the judges of the Supreme Court of the Territory of Minnesota, commanding them to vacate and set aside an order of the court, passed at January term, 1856, whereby the said Secombe was removed from his office as an attorney and counsellor of that court.

The subject was brought before this court by the following petition and documents in support of it:

To the Hon. the Judges of the Supreme Court of the United States:

The petition of David A. Secombe respectfully showeth:

That he resides in the city of St. Anthony, in the Territory of Minnesota; that on the ninth day of July, 1852, he was July admitted and sworn to practice as an attorney and counseller at law and solicitor in chancery of the said Supreme Court of the Territory of Minnesota, and was thereby entitled also to practice as such in the various District Courts of said Territory, as will appear by the certificate of the clerk of the said Supreme Court, hereunto annexed and made part of this petition; that from the said time up to the 5th day of February, 1856, he was a practising attorney and counsellor as aforesaid in the said courts, and solely thereby obtained the means of support for himself and his family; that on the said 5th day of February, an order of the said Supreme Court was made, and entered of record, to remove him from his said office of attorney and counsellor, and to forbid and prohibit him from practising as such attorney and counsellor in any of the said courts, an exemplification of which said order, with the certificate of the clerk of the said court accompanying the same, is hereunto annexed, and made part of this petition; that, previously to the making and entry of said order, no notice or information whatever was given to or had by him, that any accusation whatever had been made or entertained, or any proceedings had or were about to be made, entertained, or had, against or in relation to him, in the said premises; that he was not present in court at the time of the making and entry of said order, not did he have any knowledge whatever of the same until several days thereafter, and then only by rumor; that there existed no good cause whatever, as your petitioner believes, for the making of the said order; that he has no knowledge or information, or means of obtaining either, save by rumor, of the alleged cause of the making of the said order; that in consequence of the making and entry of the said order, he has been and now is hindered and prevented from practising as such attorney and counsellor in any of the said courts, and thereby has lost the said means of providing for the support of himself and his family; that he believes that the said order of court is not only in fact entirely without cause, but also in law wholly null and void; and that in the said premises 'he has been deprived of his liberty and property without due process of law.'

Wherefore, your petitioner prays that this honorable court will allow and cause to be issued the United States writ of mandamus to the judges of the Supreme Court of the Territory of Minnesota aforesaid, commanding them to vacate, set aside, and disregard, the said order of court by them made and entered, that thereby speedy justice may be done to your petitioner in this behalf; and thus will your petitioner, as in duty bound, ever pray.

title: Ex parte in the Matter of Secombe


text: Talk:Ex parte in the Matter of Secombe

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

title: Talk:Ex parte in the Matter of Secombe


text:
Ex parte in the Matter of Secombe/Opinion of the Court

DAVID A. SECOMBE.

Dated May 30, 1856DISTRICT OF COLUMBIA,

Then comes before me, personally, David A. Secombe, the above and foregoing named petitioner, and being by me duly sworn, deposes and says, that the statements made in the above and foregoing petition, by him subscribed, are true of his own knowledge, except to those matters therein stated on his information or belief; and as to those matters, that he believes them to be true.

[SEAL.] N. CALLAN, J. P.

SUPREME COURT,

Ordered, That Isaac Van Etten, Theodore Parker, De Witt C. Cooley, David A. Secombe, William H. Welch, Charles L. Willis, Lucas R. Stannard, Edward L. Hall, Warren Bristol, and William H. Wood, be sworn and admitted to practice as attorneys and counsellors at law and solicitors in chancery of this court.

I, George W. Prescott, clerk of the Supreme Court above named, certify that the above is a true copy of an order of said court, entered of record upon the 'minutes of court' for and upon the 9th day of July, A. D. 1852, being the 4th day of the general term of said court for said year.

In testimony whereof, I have hereunto set my hand and affixed the seal of said Supreme Court, at St. Paul aforesaid, this 7th day of May, A. D. 1856.

GEORGE W. PRESCOTT, Clerk.

[SEAL.]

SUPREME COURT,

JANUARY GENERAL TERM, A. D. 1856, 17TH DAY, TUESDAY MORNING, FRBRUARY 5, 1856.

Court met pursuant to adjournment.

Present, Chief Justice Welch and Justice Chatfield.

It appearing to this court that David A. Secombe, one of the attorneys thereof, has by his acts as such in open court, at the present term thereof, been guilty of a wilful violation of the second subdivision of section seven by chapter ninety-three of the revised statutes of this Territory, and also of a violation of that part of his official oath as such attorney by which he was sworn to conduct himself with fidelity to the court: It is therefore

Ordered, That the said David A. Secombe be and he hereby is removed from his office as an attorney and counseller of this court, and of the several District Courts of this Territory, and that he be henceforth forbidden and prohibited from practising as such attorney in any of said courts. It is further

Ordered, That the clerk of this court deliver to said David A. Secombe a copy of this order.

A true record. Attest: GEORGE W. PRESCOTT, Clerk.

I, George W. Prescott, clerk of the Supreme Court in and for the Territory of Minnesota, certify the foregoing to be a true and complete copy of the order of court made and entered of record as above set forth on said 5th day of said February, A. D. 1856; and I further certify, that the above and foregoing is the whole and entire record in any way or manner relating to the said order of court at the said term or at any other term; and that the said order was made and entered of record in the following and no other manner, to wit: On the said day, the said David A. Secombe not being present in court, as the said judges rose to leave the court room after having fixed the adjournment day for holding said court, one of the said judges delivered to the undersigned clerk the said order in writing, directing the same to be entered of record as the order of said court, and the said court was thereupon immediately adjourned to the 15th day of July then next. And no further or other order whatever in relation to the subject matter of the said order was made at the said term.

In testimony whereof, I have hereunto set my hand and affixed the seal of said court, at St. Paul, this 7th day of May, A. D. 1856.

GEORGE W. PRESCOTT, Clerk.

[SEAL.]

THE UNITED STATES ex relatione DAVID A. SECOMBE v. THE JUDGES OF THE SUPREME COURT OF MINNESOTA TERRITORY.

To the Judges of the Supreme Court of the Territory of Minnesota:

Please to take notice, that I shall move the Supreme Court of the United States, on Friday of the first week of the next term thereof, to be held at the Capitol in the city of Washington, in the District of Columbia, on the first Monday of December next, at the going in of the court, or as soon thereafter as counsel can be heard, for a rule, or order, upon the judges of the Territory of Minnesota, requiring them to vacate, annul, an order made by that court on the 5th day of February, 1856, removing David A. Secombe from his office as attorney and counsellor of said court and of the District Courts of said Territory, or show cause before the said Supreme Court of the United States why a writ of mandamus should not be issued to compel the said judges so to do.

And the said motion will be made upon the petition of the said David A. Secombe, hereto annexed.

C. CUSHING, Attorney for Petitioner.

Dated May 30, 1856.

The case was argued by Mr. Badger in support of the motion.

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

A mandamus has been moved for, by David A. Secombe, to be directed to the judges of the Supreme Court of the Territory of Minnesota, commanding them to vacate and set aside an order of the court, passed at January term, 1856, whereby the said Secombe was removed from his office as an attorney and counsellor of that court.

In the case of Tillinghast v. Conkling, which came before this court at January term, 1829, a similar motion was overruled by this court. The case is not reported; but a brief written opinion remains on the files of the court, in which the court says that the motion is overruled, upon the ground that it had not jurisdiction in the case.

The removal of the attorney and counsellor, in that case, took place in a District Court of the United States, exercising the powers of a Circuit Court; and, in a court of that character, the relations between the court and the attorneys and counsellors who practise in it, and their respective rights and duties, are regulated by the common law. And it has been well settled, by the rules and practice of common-law courts, that it rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed. The power, however, is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility; but it is the duty of the court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the court, as the rights and dignity of the court itself.

It has, however, been urged at the bar, that a much broader discretionary power is exercised in courts acting upon the rules of the common law than can be lawfully exercised in the Territorial court of Minnesota; because the Legislature of the Territory has, by statute, prescribed the conditions upon which a person may entitle himself to admission as an attorney and counsellor in its courts, and also enumerated the offences for which he may be removed, and prescribed the mode of proceeding against him. And the relator complains that it appears by the transcript from the record, and the certificate of the clerk, which he filed with his petition for a mandamus, that in the sentence of removal he is not found guilty of any specific offence which would, under the statute of the Territory, justify his removal, and had no notice of any charge against him, and no opportunity of being heard in his defence.

It is true that, in the statutes of Minnesota, rules are prescribed for the admission of attorneys and counsellors, and also for their removal. But it will appear, upon examination, that, in describing some of the offences for which they may be removed, the statute has done but little, if anything, more than enact the general rules upon which the courts of common law have always acted; and have not, in any material degree, narrowed the discretion they exercised. Indeed, it is difficult, if not impossible, to enumerate and define, with legal precision, every offence for which an attorney or counsellor ought to be removed. And the Legislature, for the most part, can only prescribe general rules and principles to be carried into execution by the court with judicial discretion and justice as cases may arise.

The revised code of Minnesota, (ch. 93, sec. 7, subdivision 2,) makes it the duty of the attorney and counsellor 'to maintain the respect due to courts of justice and judicial officers.'

The 19th section of the same chapter enumerates certain offences for which an attorney or counsellor may be removed; and, among others, enacts that he may be removed for a wilful violation of any of the provisions of section 7, above mentioned. And, in its sentence of removal, the court say that the relator, being one of the attorneys and counsellors of the court, had, by his acts as such, in open court, at the term at which he was removed, been guilty of a wilful violation of the provision above mentioned, and also of a violation of that part of his official oath by which he was sworn to conduct himself with fidelity to the court.

The statute, it will be observed, does not attempt to specify the acts which shall be deemed disrespectful to the court or the judicial officers. It must therefore rest with the court to determine what acts amount to a violation of this provision; and this is a judicial power vested in the court by the Legislature. The removal of the relator, therefore, for the cause above mentioned, was the act of a court done in the exercise of a judicial discretion which the law authorized and required it to exercise. And the other cause assigned for the removal stands on the same ground.

It is not necessary to inquire whether this decision of the Territorial court can be reviewed here in any other form of proceeding. But the court are of opinion that he is not entitled to a remedy by mandamus. Undoubtedly the judgment of an inferior court may be reversed in a superior one which possesses appellate power over it, and a mandate be issued, commanding it to carry into execution the judgment of the appellate tribunal. But it cannot be reviewed and reversed in this form of proceeding, however erroneous it may be or supposed to be. And we are not aware of any case where a mandamus has issued to an inferior tribunal, commanding it to reverse or annul its decision, where the decision was in its nature a judicial act, and within the scope of its jurisdiction and discretion.

These principles apply with equal force to the proceedings adopted by the court in making the removal.

The statute of Minnesota, under which the court acted, directs that the proceedings to remove an attorney or counsellor must be taken by the court, on its own motion, for matter within its knowledge; or may be taken on the information of another. And, in the latter case, it requires that the information should be in writing, and notice be given to the party, and a day given to him to answer and deny the sufficiency of the accusation, or deny its truth.

In this case, it appears that the offences charged were committed in open court, and the proceedings to remove the relator were taken by the court upon its own motion. And it appears by his affidavit that he had no notice that the court intended to proceed against him; had no opportunity of being heard in his defence, and did not know that he was dismissed from the bar until the term was closed, and the court had adjourned to the next term.

Now, in proceeding to remove the relator, the court was necessarily called on to decide whether, in a case where the offence was committed in open court, and the proceeding was had by the court on its own motion, the statute of Minnesota required that notice should be given to the party, and an opportunity afforded him to be heard in his defence. The court, it seems, were of opinion that no notice was necessary, and proceeded without it; and, whether this decision was erroneous or not, yet it was made in the exercise of judicial authority, where the subject-matter was within their jurisdiction, and it cannot therefore be revised and annulled in this form of proceeding.

Upon this view of the subject, it would be useless to grant a rule to show cause; for if the Territorial court made a return stating what they had done, in the precise form in which the sentence of dismissal now appears in the papers exhibited by the relator, a peremptory mandamus could not issue to restore him to the office he has lost.

The motion must therefore be overruled.


text: 1911 Encyclopædia Britannica/Indonesian

title: 1911 Encyclopædia Britannica/Indonesian


text: Talk:Ex parte in the Matter of Secombe/Opinion of the Court


text:
Shaffer v. Scudday

THIS case was brought up from the Supreme Court of Louisiana by a writ of error issued under the 25th section of the judiciary act.

The case is fully stated in the opinion of the court.

It was argued by Mr. Benjamin for the plaintiff in error, and Mr. Taylor for the defendant.

Upon the question of jurisdiction, Mr. Benjamin's point was as follows:

The Supreme Court of Louisiana decided, by a decree reversing the judgment of the District Court, that the Secretary of the Interior had no authority to make the decision revoking Scudday's location, and held his title superior to Shaffer's, who claimed under an entry made on the authority of the Secretary's decision.

The case is therefore before the court under that clause of the 25th section of the judiciary act which empowers it to take appellate jurisdiction from the highest State courts, where 'is drawn in question the validity of an authority exercised under the United States, and the decision is against the validity,' and is fully within the principles decided in Chouteau v. Eckhart, 2 Howard, 344.

The sole question in the cause, then, is, whether the Secretary had authority to decide, and did rightly decide, that Scudday's location was null, and must be revoked.

This is hardly an open question in this court.

The 8th section of the act of 1841, under which Scudday claims, directs the locations to be made on 'any public and, except such as is or may be reserved from sale by any law of Congress.'

This court has decided in the cases above cited, and particularly in that in 15 Howard, that the act of 1841 vested no present title in the State of Louisiana, but was a mere authority to enter lands in the same manner as individuals could enter them; and that the entry under a location made by virtue of a State warrant, and backed by a State patent, did not confer the fee in the land, which is only divested by a patent issued by the United States.

Now, although the Secretary of the Interior approved the location, he did so under the mistaken supposition that the land was 'public land,' whereas, in point of fact, Congress had already conveyed title to it by the grant in the swamp-land law of 1849.

Before any patent was issued by the United States, therefore, Scudday's entry was revoked under the authority which has been universally conceded to exist in the offices of the Land Office, since the decision of this court, made thirty years ago, and never subsequently called in question. Chotard v. Pope, 12 Wheaton, 587.

The case may be summed up in few words, as follows:

1st. Shaffer claims title under a grant made by statute of the United States, vesting the fee in him as fully as a patent would, if issued directly to him. Strother v. Lucas, 12 Peters, 454; Chouteau v. Eckhart, 2 Howard, 344.

2d. Scudday claims under an inchoate title from the United States, not only still incomplete, but which it is impossible ever to render complete, and his title has been erroneously preferred by the Supreme Court of Louisiana, only because he holds a patent from the State.

But no State authority can confer a right in land sufficient to eject a patentee under the United States. Bagnell v. Broderich, 13 Peters, 436.

Mr. Taylor objected to the jurisdiction of this court, upon the following ground:

1. By reference to the decision of the Supreme Court of Louisiana, it will be seen that the question raised as to the construction of the act of 1849 was not decided by the court. The court expressly said that they did 'not consider it necessary to decide that question.' 'The construction of the act of 1849, by the Secretary of the Interior, may be strictly correct, and yet it does not follow that the location of a warrant, under the internal-improvement law of 1841, which had been approved by the proper department of the Government, and for which a patent had been subsequently issued by the State, could be revoked, so as to destroy the title conferred by the patent. The question would have been different, if, after the passage by Congress of the act of 1849, the United States had granted the land away from the State of Louisiana. Such was not the case; and as both the acts of 1834 and of 1849 were grants of land to the State, we cannot go behind the patent which the State has granted.' From this it is clear that there was no decision against the validity of a treaty or statute of, or an authority exercised under, the United States, &c., &c., in the highest court of Louisiana; and that inasmuch as no error can be assigned or regarded as a ground of reversal, other 'than such as apears on the face of the record, and immediately respects the questions of validity or construction,' &c., therefore, there was no right to a writ of error in this case, and that the case must be dismissed for want of jurisdiction. 1 Statutes at Large, p. 85, sec. 25; Almonester v. Kenton, 9 Howard, 1.

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

title: Shaffer v. Scudday


text: Talk:Shaffer v. Scudday

title: Talk:Shaffer v. Scudday


text:
Shaffer v. Scudday/Opinion of the Court

This is a writ of error to the Supreme Court of the State of Louisiana.

It appears that a petitory action was brought by Scudday, the defendant in error, against Shaffer, the plaintiff in error, to recover a quarter section of land described in the pleadings.

The defendant in error derives his title in the following manner: By the eighth section of an act of Congress of the 4th September, 1841, the Government of the United States granted to each of the several States specified in the act, and among them to Louisiana, 500,000 acres of land, for the purposes of internal improvement. The act provided that the selections of the land were to be made in such manner as the Legislature of the State should direct, the locations to be made on any public lands, except such as were or might be reserved from sale by any law of Congress, or proclamation of the President of the United States. The ninth section of the act provided that the net proceeds of the sales of the lands so granted should be applied to objects of internal improvement within the State, such as roads, railways, bridges, canals, and improvement of water-courses and draining of swamps. An act of the Legislature of Louisiana of 1844 provided that warrants for the location of the lands should be sold in the same manner as the lands were located; and it was made the duty of the Governor to issue patents for the lands located by warrants, whenever he should be satisfied that they had been properly located. The defendant in error, being the holder of such a warrant, located it on the land claimed in the suit. The location having been approved by the Secretary of the Interior, and a certificate to that effect granted by the register, the Governor of Louisiana issued a patent to the plaintiff, bearing date 12th November, 1852.

The opposing title of plaintiff in error is derived under an act of Congress of March 2d, 1849, and certain acts of the Legislature of the State, passed to carry into effect the act of Congress. The first section of the act of Congress of 1849 declares, 'that to aid the State of Louisiana in constructing the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of the swamp and overflowed lands which are or may be found unfit for cultivating, shall be, and the same are hereby, granted to the State.'

The second section provides, that as soon as the Secretary of the Treasury shall be advised by the Governor of Louisiana that the State has made the necessary preparations to defray the expenses thereof, he shall cause a personal examination to be made, under the direction of the surveyor general thereof, by experienced and faithful deputies, of all the swamp lands therein which are subject to overflow and unfit for cultivation, and a list of the same to be made out and certified by the deputies and the surveyor general to the Secretary of the Treasury, who shall approve the same, so far as they are not claimed and held by individuals; and on that approval the fee simple to said lands shall vest in the State of Louisiana, subject to the disposal of the Legislature thereof, provided, however, that the proceeds of said lands shall be applied exclusively, as far as necessary, to the construction of the levees and drains aforesaid.

On the 21st of March, 1850, the Legislature of Louisiana passed an act to enable the Governor to have the swamp and overflowed lands selected; and, in 1852, they passed an act, giving a preference in entering such lands to those in possession of or cultivating them, and the time of entering them was further extended by an act of 1853. The plaintiff in error entered this land on the 18th day of July, 1853, by virtue of a preference-right claimed under that act of the Legislature. He was permitted to make this entry at the State land office, in consequence of the Secretary of the Interior having, on the 14th of April, revoked his approval to the State under the act of 1841, of this and other lands which had been located under warrants sold by the State, in conformity to the act of the Legislature of 1844.

The reason assigned by the Secretary of the Interior was, that these locations had been made subsequent to the passage of the act of Congress of 1849, granting to the State all the swamp and overflowed lands. He states, in his opinion, that he considered the words used in the first section of that act as importing a grant in present, and as confirming a right to the land, though other proceedings were necessary to perfect the title; and that when the title was perfected, it had relation back to the date of the grant. His approval to the State, of the location of the land in controversy, under the internal-improvement law of 1841, was revoked, but the land was at the same time approved to the State, as having a vested title to it, under the act of 1849, and taking effect from the date of the passage of the act.

The controversy between the parties arises upon these two patents, both granted by the State of Louisiana-the one to Scudday, under the grant made by the act of Congress of 1841, for the purposes of internal improvement; the other to Shaffer, under the grant made by the act of 1849, for the purpose of draining the swamp lands.

The case came regularly before the Supreme Court of the State; and that court, after stating that it was unnecessary to decide whether the construction placed upon the act of 1849, by the Secretary of the Interior, under which he revoked his approval of Scudday's location, was erroneous or not, proceeded to express their opinion as follows:

'It is certain (say the court) that the Legislature could not have disposed of the land as belonging to the State, under the provisions of that act, [the act of 1849,] until she had complied with the conditions imposed on her by the act of Congress, and until the approval of the Secretary of the Treasury; but if she had not chosen to avail herself of the right given to her to appropriate these lands as swamp lands by defraying the expenses of locating them, she had still the right of locating them under the internal-improvement law of 1841, which was unconditional. The construction of the act of 1849, by the Secretary of the Interior, may be strictly correct; and yet it does not follow that the location of a warrant, under the internal-improvement law of 1841, which had been approved by the proper department of the Government, and for which a patent had been subsequently issued by the State, could be revoked, so as to destroy the title conferred by the patent. The question would have been different, if, after the passage by Congress of the act of 1849, the United States had granted the land away from the State of Louisiana. Such was not the case; and as both the acts of 1841 and of 1849 were grants of land to the State, we cannot go behind the patent which the State has granted. The patent can only be attacked on the ground of error or fraud. It is true that a patent issued against law is void; but in the present case the patent and all the proceedings on which it was based were in conformity to the laws. As between the Government of the United States and the State of Louisiana, a question will arise, whether the State is not entitled to an additional quantity of land, to be located under the act of Congress of 1841, in consequence of the swamp lands having been appropriated for locations of warrants issued under the internal-improvement act; but we are of opinion that the title which the State has granted to the plaintiff, and for which she has been paid, is unaffected by the acts of the officers of the United States Government and of the State Government, done since the patent was issued.'

Upon these grounds, the Supreme Court of the State gave judgment in favor of Scudday, and this writ of error is brought to revise that decision.

It does not appear from the opinion of the court, as above stated, that any question was decided that would give this court jurisdiction over its judgment. The land in dispute undoubtedly belonged to the State, under the grants made by Congress, and both parties claim title under grants from the State. The construction placed by the Secretary upon the act of 1849, and the revocation of his order approving the location of Scudday, did not and was not intended to re-vest the land in the United States. On the contrary, it affirmed the title of the State; and its only object was to secure to Louisiana the full benefit of both of the grants made by Congress, and leaving it to the State to dispose of the lands to such persons and in such manner as it should by law direct. It certainly gave no right to the plaintiff in error. He admits the title of the State, and claims under a patent granted by the State. Now, whether this patent conveyed to him a title or not, depended altogether upon the laws of Louisiana, and not upon the acts of Congress or the acts of any of the officers or authorities of the General Government. It was a question, therefore, for the State courts. And the Supreme Court of the State have decided that this patent could convey no right to the land in question, because the State had parted from its title by a patent previously granted to Scudday, the defendant in error. The right claimed by the plaintiff in error, which was denied to him by the State court, did not therefore depend upon any act of Congress, or the validity of any authority exercised under the United States, but exclusively upon the laws of Louisiana. And the Supreme Court of the State have decided that, according to these laws, he had no title, and that the land in question belonged to the grantee of the elder patent.

We have no authority to revise that judgment by writ of error; and this writ must therefore be dismissed for want of jurisdiction.

title: Shaffer v. Scudday/Opinion of the Court


text: Talk:Shaffer v. Scudday/Opinion of the Court


text:
Southworth v. Osborn

THIS was an appeal from the Circuit, Court of the United States for the district of Maryland.

It was a libel filed in the District Court by James W. Osborn, of the city of Baltimore, against the barque Laura, her tackle, apparel, and furniture, Osborn being the assignee of Loring & Co., merchants in Valparaiso. The barque Laura belonged to Plymouth, in Massachusetts, and the lien claimed was for supplies and repairs furnished to the vessel at Valparaiso. The Distrist Court decreed that there was due to the libellant the sum of $2,910.23, with interest from the 1st of April, 1852, which decree was affirmed in the Circuit Court.

The case was argued at the preceding term, and held under a curia advisare vult until the present.

The circumstances of the case are set forth with great particularity in the opinion of the court, and need not be repeated.

It was argued by Messrs. Brune and Brown for the appellants, and by Messrs. Wallis and J. H. Thomas for the appellee.

Some of the points made by counsel related to particular items in the accounts between the parties, which it is not deemed necessary to notice in this report. Those which referred to the points decided by the court were the following, viz:

First. That no lien on the Laura was created for the expenses paid and supplies furnished by Loring & Co., as per their account, and that Phineas Leach, on whose order or request they were paid and furnished, was not then the master of the barque, and no one but the master can create an implied lien on a vessel. Conkling's Admiralty, 59; Flanders on Shipping, 181; Flanders's Maritime Law, 174, 175, 186; Story on Agency, sects. 116 to 124; Curtis on Merchant Seamen, 76-165 to 185; The St. Jago de Cuba, 9 Wheaton, 409, 416; The Phebe, Ware, 275; Sarchet v. Sloop Davis, Crabbe, 199, 200, 201; Jones v. Blum, 2 Richardson, 475, 476, 479, 480; Thorn v. Hicks, 7 Cowen, 700; James v. Bixley, 11 Mass., 37, 38, 40, 41; Sproat v. Donnell, 20 Maine, 187, 188; Thompson v. Snow, 4 Maine, 268, 269; Mann v. Fletcher, 1 Gray, (Mass.,) 128, 129, 130; Webb v. Peirce, 1 Curtis C. C. R., 105 to 113; Reeve v. Davis, 1 Ad. and E., 312; Minturn v. Maynard, 17 Howard, 477; The Aurora, 1 Wheaton, 103; Greenway v. Turner, 4 Md., 296, 303, 304; Young v. Brander, 8 East., 12; Frazer v. Marsh, 13 ib., 238; Bogart v. The John Jay, 17 Howard, 401; Abbot on Shipping, 128; 1 Bell's Com., 506; The Jane, 1 Dod., 461; 2 Starr's Institutions, 953, 955, 962, 966; Gilpin, 543.

Second. At the time when the supplies in question were furnished, Leach had ceased to be captain, and had become a merchant, doing business in Valparaiso, in the counting-room of Loring & Co. As to the Laura, he was a wrong-doer, improperly detaining her from her owners, and using her as his own. And the facts which came to the knowledge of Loring & Co. were sufficient to have put them on the inquiry as to the legality of the right which Leach claimed to exercise over the Laura, and such an inquiry would have enabled them to ascertain that he had no such right. They had therefore constructive notice of all the facts to which such an inquiry might have led. Curtis on Seamen, 151 to 153; Carr v. Hector, 1 Curtis C. C. R., 393, and cases there cited; Ringgold v. Bryan, 3 Md. Ch. R., 493; Magruder v. Peter, 11 G. and J., 243; Baynard v. Norris, 5 Gill, 468; Oliver v. Piatt, 3 How., 479, 495; Harrison v. Vose, 9 How., 372.

The points made on the part of the appellee, so far as they were included in the decision of the court, were:

1. That whether Leach, by the terms of the contract under which he navigated the barque, was or was not to be regarded as her temporary owner at the time when the repairs and supplies in controversy were furnished; and whether the general owners were or were not bound personally by his contracts for necessaries, he was at all events master of the barque, and imposed a lien in rem, by ordering and receiving such repairs and supplies for her in a foreign part. His relation to the vessel, so far as this legal consequence of his acts is involved, was not altered by his having temporarily intrusted Easton, his mate, with her navigation, nor was the responsibility of the vessel herself to Loring & Co., for repairs and supplies, at all affected by the secret agreement between Leach and the owners, of which Loring & Co. were ignorant. The General Smith, 4 Wheaton, 438; The Brig Nestor, 1 Sumner, 78; The Schr. Tribune, 3 Sumner, 149, 150; Arthur v. Schr. Cassius, 2 Story, 92 to 94; The Barque Chusan, ib., 467; The William and Emmeline, 1 Blatchford and Howland, 71; Webb v. Pierce, 1 Curtis, 110; Arthur v. Barton, 6 Mees. and Wellsby, 142; The St. Jago de Cuba, 9 Wheaton, 409; Rich v. Coe, Cowper, 636; Reeve v. Davis, 1 Adol. and Ellis, 315; Sarchet v. Sloop Davis, Crabbe, 201; Story on Agency, sects. 36, 120; Scofield v. Potter, Davis, 397; North v. Brig Eagle, Bee's Rep., 78; L'Arina v. Brig Exchange, ib., 198; 1 Bell's Com. 525, 526; The Virgin, 8 Peters, 552, 553; Hays v. Pacific Steamboat Co., 17 Howard, 598, 599; Peyroux v. Howard, 7 Peters, 341; Bevans v. Lewis, 2 Paine's C. C. Rep., 207.

2. That even if Easton is to be regarded as master, at the time when the repairs and supplies were furnished, the fact that they were so furnished, with his knowledge and consent and under his superintendence, is sufficient to charge the barque with the usual maritime lien, notwithstanding that Leach may have ordered or directed them. Stewart v. Hall, 2 Dow, 32; Voorhees v. Steamer Eureka, 14 Missouri Rep., 56.

3. That the onus of showing a waiver of the customary maritime lien, by giving credit to Leach, rests on the appellants, and they must not only show that such credit was given, but that it was exclusive, and with the intent to forego all recourse in rem. It will be argued that there is not only an entire failure of proof to that effect on the part of the appellants, but that the circumstances of the transaction, the mode of making the charges, and the certificates required from Leach, to the validity of the accounts against the 'barque and owners,' all establish affirmatively that the credit of the vessel was especially looked to, and the usual remedy against her particularly reserved. Ex parte Bland, 2 Rose, 92; Stewart v. Hall, 2 Dow, 29, 37, 38; The Barque Chusan, 2 Story, 468; Peyroux v. Howard, 7 Peters, 344; The Brig Nestor, 1 Sumner, 75; North v. Brig Eagle, Bee, 78.

4. That even if the relation of Leach to the vessel was not such as necessarily to raise an implication of lien, from his mere contract for repairs and supplies, he had, nevertheless, the right to pledge the vessel expressly. The proof shows that he did this, and the lien, thus expressly imposed, being of a maritime nature, became, proprio vigore, enforceable in admiralty. Alexander v. Ghiselin, 5 Gill, 182; Sullivan v. Tuck, 1 Md. Chan. Rep., 62, 63; The Brig Nestor, 1 Sumner 78; The Schooner Marion, 1 Story, 73; The Hilarity, 1 Blatchford and Howland, 92, 93; Bogart v. The John Jay, 17 Howard, 401; The Brig Draco, 2 Story, 177, 178.

5. That Captain Leach was introduced to the confidence of Messrs. Loring & Co. by his position as master of the Laura, and derived his credit with them altogether from that position, that they were ignorant of his contract with his owners, and of his violation of it, and the dissatisfaction of the owners therewith; that Leach was held out to the world by the appellants as master of the Laura, with the usual right to bind her by his proper contracts; that Messrs. Loring & Co., by the repairs and supplies in controversy, not only improved the vessel as the property of the owners, but enabled her to earn freights for their benefit; that such was the result of all their dealings with Leach in regard to the barque, which were fair, liberal, and in good faith; that the misconduct and insolvency of Leach, and his failure to pay over the balance of freights, furnish no justification to the owners in repudiating the responsibilities of the barque, especially after their adoption of the very voyage for which the repairs and supplies were furnished, by the act of their agent, Weston, in receiving a part of the proceeds of the cargo, and diminishing to that extent the security of Loring & Co.

Mr. Justice CURTIS delivered the opinion of the court.

title: Southworth v. Osborn


text: Talk:Southworth v. Osborn

title: Talk:Southworth v. Osborn


text:
Southworth v. Osborn/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the district of Maryland, sitting in admiralty. A libel was filed in the District Court by the appellee, as assignee of Loring & Co., merchants in Valparaiso, asserting a lien on the barque Laura, of Plymouth, in the State of Massachusetts, for the cost of repairs and supplies furnished to that vessel at Valparaiso. The District Court decreed for the lien, the Circuit Court affirmed that decree, and the claimants have brought the cause here by appeal.

It appears that in January, 1849, Phineas Leach, who had previously been in command of the barque, contracted with her owners to take her on what is termed 'a lay.' There does not appear to have been any written contract of affreightment between them, nor are the terms of their agreement fully described by any witness. But this mode of employing vessels is so common, and its terms and legal effect so well settled by long usage, it has been so often before the courts and the subject of adjudication, that no embarrassment is felt by us concerning the terms and conditions on which Leach took the vessel.

We understand from his testimony, as well as from known usage, ascertained and adjudicated on in the courts, that the master had the entire possession, command, and navigation of the vessel; that he was to employ her in such freighting voyages as he saw fit; that he was to victual and man the vessel at his own expense; that the owners were to keep the vessel in repair; that from the gross earnings were to be deducted all port charges, and the residue was to be divided into two equal parts, one of which was to belong to the owners, the other to the master; and that this agreement could be terminated by the restoration of the vessel to owners by the master, or by their intervention to displace him, at the end of any voyage, but not while conducting any one which he had undertaken.

Having possession and command of the vessel under such a contract, Leach sailed from New Orleans in January, 1849, and after making a voyage to Rio de Janeiro, he sailed for and arrived at Valparaiso in November, 1849.

It is necessary to state with some particularity the voyages made after his arrival at Valparaiso. He sailed thence in December, 1849, with a cargo of Chili produce, on a freight amounting to about $7,000, for San Francisco, where he arrived and delivered the cargo. He went thence to Talcuhana in ballast; and, having an intention to by a cargo there on his own account, he wrote to Loring & Co., from San Francisco, to obtain from them a credit, on which to raise money to pay for the balance of the cost of this cargo, after appropriating towards it the frieght money in his hands. Loring & Co. granted him a credit for $3,000, to be reimbursed by Leach's draft on himself at San Francisco, at five per cent. premium. At Talcuhana, Leach drew on Loring & Co. for $7,000, and bought doubloons; but, not being able to procure a cargo there, or at Maule, he sailed to Valparaiso, where he arrived in July, 1850. He handed over to Loring & Co. the doubloons and the proceeds of his freight money, which was in gold dust, and they supplied the vessel and purchased a cargo for Leach's account, charging a guaranty commission of five per cent. on their advances, and also a commission of two and a half per cent. on their purchases. They rendered Leach an account, in which he is charged with the supplies of the barque and the cost of the cargo, and their commissions, and credited with the moneys received from him.

Leach carried this cargo to San Francisco; and, having sold it, made an arrangement with the mercantile house of Flint, Peabody, & Co., established at San Francisco, that he would go to Valparaiso, and ship cargoes thence to them on their and his joint account, drawing on them for the cost. This arrangement was not limited to cargoes by the Laura, but was to extend to such other vessels as Leach might take up for the purpose.

From San Francisco, Leach sailed in the Laura to Talcuhana, where he saw one of the firm of Loring & Co., who gave him a credit for $10,000 to buy a cargo there. He purchased part of a cargo; but, not being able to complete it, went to Valparaiso, where he arrived in May, 1851. He then informed Loring & Co. of his arrangement with Flint, Peabody, & Co., and they agreed to advance him funds, to enable him to carry the arrangement into effect-to be reimbursed by remittances from San Francisco, with five per cent. commission, and one per cent. a month for interest. He accordingly left the vessel, putting Easton, his mate, in command; and Loring & Co. purchased the residue of the cargo for the Laura, charging its cost to the joint account of Leach, and Flint, Peabody, & Co., and the Laura sailed in May, 1851, for San Francisco. She returned in ballast to Valparaiso in March, 1852; and at that time the principal bills for repairs and supplies, claimed in this case, were incurred. In March, 1852, the Laura again sailed, under Easton's command, for San Francisco, via Peyta, where she touched to complete her cargo, and Easton there drew a bill on Loring & Co. to reimburse advances made to him in that port-partly to pay for cargo purchased there, and partly to pay for supplies and port charges.

The Laura returned to San Francisco in September, 1852, where she was taken possession of by Captain Weston, who had been sent there by the owners to bring her home. The owners gave no consent to the above-described proceedings of Leach in respect to the use and employment of the barque. From the time when Leach left the command of the Laura, in May, 1851, he remained in Valparaiso, and by means of funds furnished by Loring & Co., and with their assistance, he purchased and made six shipments of cargoes by vessels other than the Laura, under his arrangement with Flint, Peabody, & Co., and Loring & Co. He had a desk in the counting-house of Loring & Co., and there transacted his business.

Setting aside all the special facts of this case, and viewing it only as an ordinary transaction, by which the master of an American vessel procured repairs and supplies, and advances of money to pay for repairs and supplies, in a foreign port, the first question which arises is, whether he had power to hypothecate the vessel as a security for their payment, otherwise than by a bottomry bond, which must make the payment dependent on the arrival of the vessel, and creates no personal liability of the owners.

We understand it to be definitely settled by the cases of Stainbank v. Fleming, 6 Eng. L. and Eq., 412, decided by the Court of Common Pleas in 1851, and Stainbank v. Shephard, 20 Eng. L. and Eq., 547, on writ of error in the Exchequer Chamber, so late as 1853, that by the law of England the master of a ship has not power to create a lien on the vessel as security for the payment for repairs and supplies obtained in a foreign port, save by a bottomry bond; that he can only pledge his own credit and that of his owners, but cannot, by any act of his, give the creditor security on the vesself while, at the same time, the personal liability of the owners continues. Neither of those learned courts considered-perhaps there was no occasion for them to consider (Pope v. Nickerson, 3 Story's R., 465,) what should be the effect, in an English tribunal, of the law of the place where the repairs and supplies were obtained, if that law tacitly created a lien on the vessel. See Story's Con. of Laws, § 322 b, 401-'3. These decisions rest merely upon the want of authority in the master, according to the law of England, to create, by his own act, an absolute hypothecation of the vessel as security for a loan. But the maritime law of the United States is settled otherwise-in harmony with the ancient and general maritime law of the commercial world. The master of a vessel of the United States, being in a foreign port, has power, in a case of necessity, to hypothecate the vessel, and also to bind himself and the owners, personally, for repairs and supplies; and he does so without any express hypothecation, when, in a case of necessity, he obtains them on the credit of the vessel without a bottomry bond. The ship General Smith, 4 Wheat., 488; Peyroux v. Howard, 7 Peters, 324, 341; The Virgin, 8 Peters, 538; The Nestor, 1 Story, 73; The Chusan, 2 Story, 455; The Phoebe, Ware's R., 263; Davis v. Child, Daveis's R., 12, 71; The William and Emeline, 1 Blatch. and How., 66; Davis v. A New Brig, Gilpin's R., 487; Sarchet v. The Davis, Carabbe's R., 185.

It is not material whether the hypothecation is made directly to the furnishers of repairs and supplies, or to one who lends money on the credit of the vessel, in a case of necessity, to pay such furnishers. 'Through all time,' says Valin, 'by the use and custom of the seas, it has been allowable for the master to borrow money, on bottomry or otherwise, upon the hull and keel of the vessel, for repairs, provisions, and other necessaries, to enable him to continue the voyage;' Com. on Art. 19, Ord. of 1681; and this assertion rests upon sufficient authority. The Roman law, de exercitoria action e, D. 14, 1, authorized a simple loan, and does not confine the master to borrow on bottomry. The Consulat del Mare, ch. 104, 105, 236, the laws of Wisby, art. 13, the laws of Oleron, art. 1, Le Guidon, ch. v, art. 33, the French ordinance of 1681, art. 19, as well as the present French code de commerce, art. 234, concur in allowing the master to contract a simple loan, in a case of necessity, binding on the vessel. A difference of opinion exists between Valin and Emerigon, concerning the power of the master also to bind the owner to accept bills of exchange for the sum borrowed; but they concur in opinion that the master has power to contract a loan to pay for repairs and supplies, and to give what we term a lien on the ship as security, in a case of necessity. See Valin's Com., art. 19; Emerigon's Con. a la Grope, ch. 4, sec. 11; vol. 2, pp. 484, &c. In another place, ch. 12, sec. 4, Emerigon observes, 'It matters little whether one has lent money or furnished materials.' The older as well as the more recent commentators are of the same opinion. Kuricke, 765; Loccenius, lib. 3, ch. 7, n. 6; Stypmannus, 417, n. 107; Boulay Paty Cours de Droit, Com. tit. 1, sec. 2, vol. 1, p. 39, and tit. 4, sec. 14, vol. 1, pp. 151-'3; Pardessus Droit Com., vol. 3, n. 631, 644, 660; Pardessus Col., vol. 2, p. 225, note. The subject has been elaborately examined by Judge Ware, in Davis v. Child, Daveis's R., 75, and we are satisfied he arrived at the correct result.

Nor do we think the fact that the master was charterer and owner pro hac vice necessarily deprived him of this power. It is true it does not exist in a place where the owner is present. (The St. Jago de Cuba, 9 Wheat., 409.) But this doctrine cannot be safely extended to the case of an owner pro hac vice in command of the vessel. Practically this special ownership leaves the enterprise subject to the same necessities as if the master were master merely, and not charterer, and the maritime law gives him the same power to borrow to meet that necessity, as if he were not charterer. The Consulat de la Mer, ch. 289, (2 Par. Col., 337,) has provided for the very case, for it makes the interest of the general owner responsible for the contracts of the master who has received the vessel en commande; and one species of this contract was what we should term 'a lay'-that is, a participation in profits. Vide 2 Par. Col., 186, note 3; 52, note 1; 49, note 4; and the chapters there referred to.

It is true the master cannot bind the general owners personally for supplies which he, as charterer, was to furnish. (Webb v. Pierce, 1 Curtis, 110.) Neither could he bind them beyond the value of their shares in the vessel, under the ancient maritime law. (Consulat, ch. 34, 239, and Pardessus's note, vol. 2, p. 225.) Emerigon is of opinion that the effect of the French ordinance is the same. (Con. a la Grope, ch. 4, sec. 11.) In our law, if the master is the agent of the owners, his contracts are obligatory on them personally. When he acts on his own account, he does not create any obligation on them. But it does not follow that he may not bind the vessel. In Hickox v. Buckingham, 18 How., it was held that contracts of affreightment entered into by the master, within the scope of his apparent authority as master, bind the vessel to the merchandise for the performance of such contracts, wholly irrespective of the ownership of the vessel; and whether the master be the agent of the general or special owner and this upon the principle that the general owner must be presumed to consent, when he lets the vessel, that the master may make such contracts, which operate as a tacit hypothecation of the vessel. And so in this case, we think, the general owners must be taken to have consented that, if a case of necessity should arise in the course of any voyages which the master was carrying on for the joint benefit of themselves and himself, he might obtain, on the credit of the vessel, such supplies and repairs as should be needful to enable him to continue the joint adventure. This presumption of consent by the general owner is entertained by the law from the actual circumstances of the case, and from considerations of the convenience and necessities of the commercial world.

But the limitation of the authority of the master to cases of necessity, not only of repairs and supplies, but of credit to obtain them, and the requirement that the lender or furnisher should see to it, that apparently such a case of necessity exists, are as ancient and well established as the authority itself.

In some of the old sea laws, they are declared in express terms, as they were in the Roman law: Aliquam diligentiam in ea re creditorem debere preaestare, D. 14, 1, 7; navis in ea causa fuisset ut refici deberet, D. 14, 1, 7. And in the Consulat del Mare, ch. 107, 'But the merchant should assure himself that what he lends is destined for the use of the ship, and that it is necessary for that object.'

A reference to the other codes cited above will show that a case of necessity was uniformly required; and the commentators all agree, that if one lend money to a master, knowing he has not need to borrow, he does not act in good faith, and the loan does not oblige the owner. Valin, art. 19; Emerigon, Con. a la Grope, ch. 4, sec. 8; and the older commentators cited by him. Boulay Paty Cours de Droit Com., tit. I, sec. 2, tit. IV, sec. 14; and see the authorities cited by him in note 1, p. 153.

To constitute a case of apparent necessity, not only must the respairs and supplies be needful, but it must be apparently necessary for the master to have a credit, to procure them. If the master has funds of his own, which he ought to apply to purchase the supplies which he is bound by the contract of hiring to furnish himself, and if he has funds of the owners, which he ought to apply to pay for the repairs, then no case of actual necessity to have a credit exists. And if the lender known these facts, or has the means, by the use of due diligence, to ascertain them, then no case of apparent necessity exists to have a credit; and the act of the master in procuring a credit does not bind the interest of the general owners in the vessel.

We now come to the application of these principles to the case at bar.

The freight-money earned by the Laura was applicable, and ought to have been applied, by the master, to the necessities of the vessel; the one-half, (after deducting port charges,) which belonged to himself, should have been applied to pay the wages of the crew, and obtain supplies for the vessel; the other half, which belonged to the owners, to paying for necessary repairs.

The amount of this freight-money actually earned and received was about $12,000. Besides this, the Laura had made two voyages to San Francisco, with cargoes belonging to Leach and to him, and Flint, Peabody, & Co., before the bills now in question were incurred. We hesitate to declare that a master, who takes a vessel on 'a lay,' can use it to carry cargoes of his own. The practical difference to the owners is, that there can be no agreed rates of freight, and no such security on the cargo for its payment, as the marine law ordinarily provides, and as the owners may be reasonably considered to contemplate when they let the vessel. (Gracie v. Palmer, 8 Wheat., 605.) But this point has not been adjudicated on by the courts, nor does this case furnish any evidence of what the usage is in this particular. Waiving a decision of this question, it is, at all events, clear the vessel earns for the owners a reasonable freight by carrying cargo of the master; and, according to the evidence in this case, that reasonable freight must have been set down for each of the two voyages on which the cargo of the master was carried, at the sum of $7,000, that being the sum earned on the preceding voyage between the same ports, and there being no evidence before us of a change in the price of freights in the intermediate periods; so that when these expenses, now in question, were incurred, the master had received in money, as freight, $12,000, and must be taken to have received, in the enhanced value of his own merchandise, through its carriage to San Francisco, $14,000 more. The amount previously expended by him for repairs and supplies, at Valparaiso, does not appear to have exceeded $3,000. The amount expended at San Francisco does not appear, but there is no reason to suppose it was considerable.

In July, 1850, Loring & Co. received from Leach his funds, supplied him with credit, and purchased a cargo for him. In May, 1851, they made themselves parties to an arrangement, under which Leach was to quit the command of the vessel, and become a merchant, resident at Valparaiso. Whether they did or did not know Leach had the vessel on a lay, this was obviously wrong as respected the owners; for though, under a lay, the master is owner pro hac vice, yet there is a personal confidence reposed in him as master, which he cannot delegate to another, except in case of necessity. Before the credit now in question was given by Loring & Co., they not only had notice that Leach had wrongfully deserted the command of the vessel, and had diverted the freight which the vessel had earned and ought to have earned into his business as a merchant, but they had actually assisted him to do so, by receiving freight-money, and mingling it with other funds in their hands, out of which and their own funds they made advances to enable him to pay for cargoes; and they acted as his agents in their purchase; and they had, moreover, profited largely by so doing, charging high rates of interest, as well as commissions.

It should be added, that the owners have received nothing for their part of the earnings of their vessel, during all these voyages; for though, since his return to this country, Leach has rendered his accounts to the owners, they refused to settle them, as rendered, and Leach testifies he has not the means to pay any balance due to them.

In such a state of facts, we are of opinion Loring & Co. had no right to lend Leach money, or furnish him with supplies on the credit of the ship, and cannot be taken to have done so.

Our opinion is, that inasmuch as the freight-money earned by the vessel was sufficient to pay for all the needful repairs and supplies, and might have been commanded for that use if they had not been wrongfully diverted, no case of actual necessity to encumber the vessel existed; and as Loring & Co. not only knew this, but aided Leach to divert the freight-money to other objects, they obtained no lien on the vessel for their advances.

The cause must be remanded, with directions to dismiss the libel with costs.

Mr. Chief Justice TANEY, Mr. Justice McLEAN, and Mr. Justice WAYNE, dissented, and Mr. Justice McLEAN and Mr. Justice WAYNE concurred with the Chief Justice in the following dissenting opinion.


text: Talk:Southworth v. Osborn/Opinion of the Court


text: 1911 Encyclopædia Britannica/Cape Colony


text:
Ure v. Coffman

THIS was an appeal from the Circuit Court of the United States for the eastern district of Louisiana, sitting in admiralty.

It was a case of collision, which occurred in the Mississippi river, about fifty-five miles above New Orleans.

The narrative of the case is given in the opinion of the court.

The District Court decreed in favor of the owners of the flat-boat, who were the libellants, in the sum of $3,416.15, with five per cent. interest from the 24th of December, 1853, until paid, and costs.

Upon an appeal to the Circuit Court, this decree was affirmed, whereupon the claimants of the Gipsey appealed to this court.

It was argued by Mr. Taylor for the appellants, and by Mr. Benjamin for the appellees.

Mr. Taylor made the following points:

1st. That the appellant was engaged in a lawful business; that he exercised ordinary prudence in the prosecution of his voyage on the night in question; and that the collision was the result of an accident, and not from negligence, misconduct, or want of skill; and that he is in no way responsible for the loss sustained by the appellees. Va. In. Co. v. Millaudon, 11 L. R., 115; Stainbeach v. Rea, 14 Howard U.S. R., 532.

2d. That if there was any fault or want of care on the part of the appellant, there was also fault or want of care on the part of the appellees, inasmuch as they failed to make use of that common care and prudence which is required of all, in the public interest, by neglecting to keep any watch on the flat-boat, or to expose a light upon it, and that therefore they have no right to recover. Delaware v. Osprey, 2 Wallace, 273; Ward v. Armstrong, 14 Ill., 283, 285; Innis v. Steamer Senator, 1 Cal., 459, 460; Simpson v. Hand, 6 Wharton, 324; Murphy v. Diamond, 3 An., 441; Lesseps v. Pontchartrain R. R., 17 L. R., 261; Fleytas v. Pontchartrain R. R., 18 L., 339; Carlisle v. Holton 3 An., 48; The Alival, 25 Eng. Law and Equity, 604; 5 Statutes at Large, 306, sec. 10; Act of Louisiana of 1832.

3d. That if the appellant was at all in fault, and responsible in some degree because of that fault, then the appellees are only entitled to recover one-half of the amount of the damages occasioned by the collision. Brickell v. Frisby, 2 R., 205; Schooner Catherine v. Dickinson, 17 Howard U.S. R., 170.

Mr. Benjamin made the following points:

The claimants and appellants do not deny that they ran into and sank the flat-boat, whilst she was lying tied up to the bank at night, but they seek to excuse themselves by urging:

First. That the flat was lying moored to the bank of the river, at a distance of only fifty feet below a wood-yard, in the way of steamboats taking wood, and in the way of steamboats landing freight or passengers, at the usual landing of Madame Trudeau, the owner of the plantation on which the wood-yard was situated; and

Secondly. That the flat-boat had no light out, and was so concealed by the shadows of the bank that she could not be seen.

I. To this first excuse, the short and ready answer is, that the Gipsey was not engaged in any attempt to land at the wood-yard, or at Mrs. Trudeau's landing place, when she ran into the flat-boat; but, on the contrary, was bound up the river for a landing at George Mather's plantation.

Yet the night was so dark and foggy, that whilst they thought they were running up the river, they ran directly into the bank, sinking the flat-boat.

They pretend that the night was not too dark to run, and that it was quite light enough for them to pursue their voyage with safety. The testimony is somewhat conflicting on this point; but on their own evidence they are in a fatal dilemma. By the evidence of her own officers, the Gipsey would have run directly into the bank of the river, if the flat-boat had not intervened. Now, if it was light enough to navigate with safety, the fact proves the grossest carelessness and negligence, sufficient to make the steamer responsible.

If, on the contrary, it was not light enough to navigate with safety, there was criminal imprudence in continuing the voyage, instead of lying up till the darkness was dissipated.

The district judge puts the dilemma very clearly in his opinion, and there is no escape from it.

II. To the second excuse, the answer is, that there was no obligation on the part of the flat-boat to exhibit a light.

She was moored in a nook or recess of the bank where it had caved, so as to leave a point of land jutting out into the river above and below her.

Whether near a wood-yard, or not, is a matter of no consequence. She was not at the wood-yard. She was nestled securely, as her owners had every reason to believe, beyond the possibility of harm from ascending or descending boats, and she was not harmed by any boat that was ascending or descending by a proper course, but by a boat which, whilst its officers declare they were bound up the river, run straight across it, to a spot where they had no intention of going.

A steamboat running at night is bound to have lights, (act July, 1838, 5 Stat. at Large, 306,) and it would no doubt be held imprudent for a flat-boat, under the same circumstances, to neglect the same precaution; but it never has been even pretended, before, that a vessel of any kind, tied to the bank of a river, not in any port or harbor, or usual place of landing, is bound to show a light, still less when, as in the present case, the vessel was lying in a nook or recess of the bank, entirely out of the usual course of ascending or descending vessels.

Mr. Justice WAYNE delivered the opinion of the court.

title: Ure v. Coffman


text: Talk:Ure v. Coffman

title: Talk:Ure v. Coffman


text:
Ure v. Coffman/Opinion of the Court

This is an appeal from the Circuit Court of the United States for the eastern district of Louisiana.

It appears from the record, that the steamer Gipsey was a packet on the Mississippi river, running from New Orleans to Lobdell's Store landing, above Bayou Sara, and, as all the other Mississippi steam river packets do, was in the habit of landing freight and passengers at all the intermediate points and plantations. She was making a trip up the river from New Orleans on the evening of the 21st December, 1853. The night was rainy and dark, and after midnight somewhat foggy. It was light enough, though, for the boats navigation the river to run and to distinguish and make all their landings. All of the witnesses say it was a proper night for running, and none of the packets, or other boats, laid up on that night on account of the weather. Alexander Desarpes, a witness for the claimant, says, 'he was the pilot of the Gipsey, and was on watch at the wheel at the time the Gipsey struck the flatboat. That the collision happened above the point at Trudeau's wood-yard, about fifty-six miles above New Orleans, between twelve and one o'clock at night, on the 22d December, 1853. He says it was a pretty bad night, rainy, dark, and smoky, rather than foggy, with a little fog. There was light enough, however, for the boat to distinguish landings, and she ran and made all of her's of freight and passengers as she went up. Her last landing before the collision was one of freight, at J. B. Armant's plantation, on the right-hand side of the river descending, about half a mile below Trudeau's wood-yard. We then crossed the river from there, to go to George Mather's plantation. At that time the night was dark and rainy, but the shore could be seen for some distance. There was a light at Trudeau's wood-yard on the bank, which is pretty high there, at least fifteen feet above the water; I could see this light a long distance-three or four arpents from the shore; there was a point of land just below the wood-yard; I was looking out when the boat was approaching the shore, for the purpose of going up that shore to make a landing; I could see an outline of the shore, or bank, all along, and distinctly, too; I did not discover the flat-boat until we were right up against her; the flat-boat was lying close to the bank, and in its shadow, and having no light on her I could not see her; she was lying just at the foot of the wood-yard; the light on the bank was a good distance from the flat-boat, and did not shine upon her. As soon as we saw the flat-boat, we stopped the engine of the Gipsey, and backed. If there had been a light on the flat-boat, I could have seen it at a sufficient distance to have avoided the collision, but there was no light on her. As the flat-boat was low down in the water, if there had been a light on her, we should have known it was something down in the water. I saw nobody on watch on the flat-boat at the time of the collision, and heard no hail from her before it.' The witness further states that he had been a pilot on the river for more than ten years, 'running in this lower trade,' and adds, at the time of and before the collision, the weather was such as boats are in the habit of running and making landings, and I, as a pilot, consider that it was safe and proper to run the boat. Mather's landing, where the Gipsey was going to land, was about a quarter of a mile above Trudeau's wood-yard. Upon the cross-interrogation of this witness, he does not give an intelligent or certain statement of the collision, or where or how the Gipsey struck the flat-boat; but says she was tied to a point, and her stern lay a little out from the bank; she laid up and down the river in the same direction with the current; there are curvings in along the bank; the flat was lying at a point fastened, and there are curvings both above and below that point, which was a mere jutting out of the bank in consequence of curvings above and below it. The direct examination being resumed, this witness says, on a clear starlight night, in such a stage of water as prevailed at the time of the accident, we could have seen a flat-boat at a good distance in time to prevent an accident. If there had been on the flat-boat such a light as is generally carried on deck by a steamboat, or a schooner, or on flat-boats when they are running, I could have seen it three or four arpents off, and this would have given me time to avoid the collision.

The evidence of this witness is not in any material particular changed by any other witness examined in the case. It is rather confirmed; but the captain of the Gipsey, who was also sworn as witness, gives a more certain account of the collision, as to the part of the flat-boat which was struck by the steamer, and by what part of the steamer she was struck. The testimony is conclusive, that the flat being tied to the shore, at what might have been considered a proper and safe place, was struck by the steamer with sufficient force to cut a part of her down, and to sink her in a few minutes. There are three points to be noted in the testimony of Desarpes. The first is, that the steamer, being upward bound, had made a landing at Armant's plantation, about half a mile below Trudeau's wood-yard, and that her next place for making a landing was a quarter of a mile above that, on the opposite side of the river, at Mather's plantation, making the distance between the two places about three-quarters of a mile. Secondly, that in his opinion as an experienced pilot, and accustomed to the navigation of the river, there was nothing in the state of the weather to prevent the steamer from being run as usual, and put across the river to make a landing at Mather's plantation, but that she was run so close in shore as to be brought into collision with the flat-boat, and thereby that the witness admits that the only cause of it was, that the flat-boat was lying close to the bank, and so much in its shadow, and not having a light, he could not see her. His language is, that if there had been on the flat-boat such a light as is generally carried on deck by a steamboat or a schooner, or on a flat-boat when they are running, he could have seen it far enough off to have avoided the collision.

Captain Ure, then in command of the Gipsey, gives the same account, scarcely with a variance, of the navigation of his vessel from Armant's plantation until the collision had occurred, but says, with more positiveness than his pilot spoke, that the forward end of the Gipsey-some part of the bow pretty far forward struck the flat-boat. His language is, that he 'was on the roof of the steamer in front all the time, when they had made their landing at Armant's, up to the moment of the collision. From Armant's we ran the bend of the river on the same side a short distance, and then crossed over to make a landing at Mather's, above Trudeau's wood-yard. There was a light above the wood-pile, but I saw nothing but its glare before the collision, the wood-pile being between the light and my eyes. I could see the glare some three or five minutes before the collision took place. We had almost hit the flat-boat when I saw it. I was looking out and saw the boat, seeing its outline pretty clearly about the same time that I saw the glare of the light spoken of. It was the shadow of the bank, which is high there, which prevented me from seeing. If there had been on the flat-boat any such light as flat-boats usually carry, I could have seen it in time to avoid hitting her.' He further says, 'the night was slightly foggy and bad, and it had been raining, but cannot recollect whether it was raining at the time of the collision. There was no fog until we came to Armant's, and after we left Armant's the fog came on, and I think that smoke was mixed with the fog. We did not lay up that night for fog, but ran all night.' Other witnesses were examined by the claimants, but it is not necessary to notice their testimony further than to say, that neither of them give any additional facts concerning the navigation of the steamer from Armant's plantation, or concerning the collision, contradictory from what was said of both by Captain Ure and his pilot Desarpes.

Trying, then, the claimant's case only by the evidence introduced by himself, it is obvious that the steamer was put across the river from Armant's in a state of weather and on a night proper for running, without proper care to make her next landing at Mather's, which was at least a quarter of a mile above the wood-yard, a little below which the flat-boat was moored. Both the pilot and the captain attempt to indicate the place and the part of the steamer which was first in contact with the flat-boat, by mathematical figures. If that of the pilot's is taken as the fact of the case, it must be conceded that the Gipsey was put across the river a little below where the flat-boat laid, and so near the bank that she could not have been run above her, by pursuing that course, without a collision. Running so near to the bank, when there was ample channelway further out in the river for the steamer to pass the point and curve made by it, at which and within which the flat-boat was fastened, was a want of proper care. Both pilot and captain knew that the wood-yard and its immediate vicinity was a point of the river at which boats were customarily moored at night, as a place of safety against collisions from ascending or descending boats, and should have run the steamer further out in the river to avoid all chance of collision with boats tied to the bank or wood-yard; and in this instance, there was no occasion for the steamer having been run so near to the bank of the river, as it was not intended to make a landing at the wood-yard, but to pass it to a landing higher up. The collision, according to the pilot's account of it, was caused by the steamer not having been kept on a course further out from the bank. That, of itself, is sufficient to make her answerable for all the consequences of it, without any regard to the fact that the flat-boat had not a light. A light upon her might, in the language of the witness, have enabled him to have avoided the collision by putting the steamer further out in the river, but the want of a light was not the cause of it. The cause was, that the steamer's course was too near on shore. But if the captain's account of the collision is taken as the fact of the case, as we think it ought to be, the steamer is altogether without excuse, for she was put across the river without due care as to her course, and would have been run bow on into the bank, at the point where the flat-boat was fastened, if she had not been stopped by the collision. In such a view of the case as we have given from the testimony of the claimant's witnesses, it is not necessary for us to consider the point made by the witnesses, and by counsel in the argument, that the flat-boat had not a light to show herself or her mooring during the night. Tied, as she was, in a recess of the land, with a point of land extending into the river below the wood-yard, there was no necessity for her to show a light to protect her from boats ascending or descending the river, or from landing, which might be made at the wood-yard, as she was actually fastened to the bank, out of the line of a customary and safe navigation up or down the river. In other words, the steamer was either run closer into the bank than was necessary or usual at that point of the river, and out of what should have been her course to make her landing at Mather's, or she was run head upon the flat-boat, where the latter was tied to the bank. When a boat or vessel of any kind is fastened for the night at a landing place, to which other boats may have occasion to make a landing in the night, it is certainly prudent for her position to be designated by a light on her own account, as well as that the vessel making a landing may have light to do so. But when a vessel is tied to the bank of a river, not in a port or harbor, or at a place of landing, out of the line of customary navigation, there is no occasion for her to show a light, nor has it ever been required that she should do so.

After the best examination of this case, we are of the opinion that the steamer Gipsey was put across the river from Armant's, in the prosecution of the intention to make another landing with her at Mather's plantation, without skill or prudence, and that the collision with the flat-boat was the consequence of it, without any fault or want of care by those navigating it. There is, therefore, no ground for reducing the damages given by the District and Circuit Courts to the owners of the flat-boat.

Having examined the record very fully as to the items making up the aggregate of damage given by those decrees, we affirm the decree of the Circuit Court in the case.

title: Ure v. Coffman/Opinion of the Court


text: Talk:Ure v. Coffman/Opinion of the Court


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Page:Syria, the land of Lebanon (1914).djvu/156

SYRIA, THE LAND OF LEBANON The Hebrews of Damascus are unique among their coreligionists of Palestine and Syria in that they are not comparatively recent immigrants drawn back to the land of their fathers by Zionist ideals, but are descended from ancestors who settled here in very ancient times. Some of them bear family names which can be read in the earliest census lists of the Old Testament. Many of them are very estimable people; but I cannot describe the quarter where they live, further than to state that it is the most filthy and malodorous place I have yet visited. I am not especially squeamish; I have often, for the sake of the human interest found there, traveled in Mediterranean steerages and lived in the slums of great capitals; but after a brief glimpse of the Jewish Quarter of Damascus, I beat an ignominious retreat. There are said to be houses there whose interiors are wonderfully beautiful; but I am not going back to see them.

There are in all five "quarters" in Damascus: the Christian and the Jewish at the east, the peasant market of the Meidan at the south, the suburb of el-Amara north of the Barada, and the Moslem heart of the city. The "Street called Straight," which [ 118 ]


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Stevens v. Gladding (60 U.S. 64)

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Rhode Island.

The plaintiff in error, Stevens, was the same person who was the appellant in the case of Stevens v. Cady, reported in 14 Howard, 529.

In the present suit, he brought an action, being a citizen of Connecticut, against Gladding & Proud, booksellers of Providence, in Rhode Island. It was a qui tam action in which he claimed two thousand dollars, because the defendants published and sold two thousand copies of his map of the State of Rhode Island, for which he had obtained a copyright.

The defendants pleaded not guilty, and the case went on to trial before a jury, who found a verdict for the defendants. In the progress of the trial, there was no prayer to the court to instruct the jury upon a matter of law, nor any bill of exceptions whatever.

Stevens managed the case for himself, and it would be difficult to conjecture the reason for suing out a writ of error, if it were not for the following assignment of error which was attached to the record:

This was a qui tam action at law, in debt, for the forfeitures and penalties incurred by the defendants for the violation of a copyright granted to the plaintiff in error, on the 23d day of April, 1831, under an act of Congress entitled 'An act to amend the several acts respecting copyrights, approved 3d February, 1831.'

The plaintiff's title to this copyright is set forth in the declaration herein. The principal questions in this case are: Was the verdict and judgment correct? Was the sale of the engraved plates the sale of a copyright? Did such sale authorize the defendants, or any other person, to print and sell this literary production, still subsisting under a copyright in this complainant?

The very learned opinion of the Supreme Court of the United States, delivered by Mr. Justice Nelson, in bill in chancery, James Stevens v. Isaac H. Cady, 14 Howard, 528, is ample and decisive on this subject.

title: Stevens v. Gladding (60 U.S. 64)


text: Talk:Stevens v. Gladding (60 U.S. 64)

title: Talk:Stevens v. Gladding (60 U.S. 64)


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Stevens v. Gladding (60 U.S. 64)/Opinion of the Court

JAMES STEVENS, For himself.

In this court, the following brief was filed by Mr. Ames, no counsel appearing for the plaintiff in error:

The record in this case shows, that at the November term of the Circuit Court for the district of Rohode Island, 1848, the plaintiff in error brought a qui tam action against the defendants in error, to recover penalties and forfeitures alleged to have been incurred by them under the act of Congress passed February 3d, 1831, entitled 'An act to amend the several acts respecting copyrights;' that at the June term of said court, 1850, the cause was submitted, upon the general issue, to a jury, who, in due form, returned a verdict in favor of the defendants in error, of 'not guilty;' whereupon judgment was entered, that they have and recover their costs of suit.

The record discloses no error in law, nor, to the knowledge of the defendants in error or of their counsel, was any error of law brought upon the record by the allowance of a bill of exceptions. The court has no choice, therefore, but to confirm the judgment below, with costs.

SAMUEL AMES, For Defendants in Error.

Mr. Justice McLEAN delivered the opinion of the court.

This is a writ of error to the Circuit Court for the district of Rhode Island.

An action was brought by the plaintiff in the Circuit Court, alleging that he was the author of a topographical map of the State of Rhode Island and Providence Plantations, surveyed trigonometrically by himself, the copyright of which he secured under the act of Congress of the 3d April, 1831, entitled 'An act to amend the several acts respecting copyrights;' and he avers a special compliance with all the requisites of said act, to vest in him the copyright of said map or chart. And he charges the defendants with having published two thousand copies of his map, and sold them within two years before the commencement of the action, in violation of his right, secured as aforesaid, to his damage four thousand dollars.

The defendants pleaded not guilty. The case was submitted to a jury, who returned a verdict of not guilty. A judgment was entered against the plaintiff for costs.

A writ of error was procured, and bond given to prosecute it with effect.

The defendant in proper person assigns for error, 'that the verdict and judgment were given against the plaintiff in error, whereas the verdict and judgment should have been given for the plaintiff, and he prays a reversal of the judgment on this ground.'

In a very short argument, the plaintiff in error says, the principal questions are: Was the verdict and judgment correct? Was the sale of the engraved plate, on execution, the sale of the copyright? Did such sale authorize the defendants, or any other person, to print and sell this literary production, still subsisting under a copyright in the plaintiff. And he refers to 14 Howard, 528, Stevens v. Cady. In that case this court held that a sale of the copperplate for a map, on execution, does not authorize the purchaser to print the map.

Two or three depositions, not certified with the record, were handed to the court as having been omitted by the clerk in making up the record; but it does not appear that they were used in the trial before the Circuit Court; and if it did so appear, no instructions were asked of the court to the jury, to lay the foundation of error.

It is to be regretted that the plaintiff in error, in undertaking to manage his own case, has omitted to take the necessary steps to protect his interest. There is no error appearing on the record which can be noticed by this court; the judgment of the Circuit Court is therefore affirmed with costs.


text: Talk:Stevens v. Gladding (60 U.S. 64)/Opinion of the Court


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Lathrop v. Judson

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana.

The suit was commenced by Charles Judson, a citizen of New York, to recover from Lathrop the amount of a judgment rendered by the Supreme Court of Louisiana, in June, 1851, for $1,810, with interest from the 2d of May, 1845. The plaintiff attached to his petition a copy of the record of the judgment. The suit was commenced on 6th May, 1854.

On the 18th of May, the defendant filed the following exception and plea:

To the Hon. the Judges of the Circuit Court of the United States for the Fifth Circuit and Eastern District of Louisiana:

The exception and plea to the jurisdiction of Charles C. Lathrop, of New Orleans, to the petition filed against him in this honorable court, by Charles Judson, of the State of New York.

This respondent alleges, that this honorable court has no jurisdiction of the suit instituted in this matter, the same having been litigated and deceden in the courts of the State of Louisiana, and an execution having been issued on the judgment in said suit by the said Charles Judson against this respondent, under which execution a seizure has been made of certain property as belonging to this respondent, and which execution has not yet been returned; all of which will fully appear by reference to the suit No. 16,671, of the docket of the late Parish Court of New Orleans, transferred to the Third District Court of New Orleans, and to the notice of seizure, herewith filed. Wherefore, this respondent prays that his exception may be sustained, and that he may be excused from answering to said petition, and that he may be hence dismissed with his costs.

In June, 1854, the court ordered and adjudged that the said exception be dismissed at defendant's costs.

On the same day, Lathrop filed his answer, alleging that on the 11th of February, 1851, he had made a cession of all his property to his creditors, under the insolvent laws of Louisiana; that the plaintiff in the suit was placed on the list of creditors for the amount of the judgment; that the debt for which the judgment was rendered was contracted in Louisiana, and that the plaintiff bought the debt at the sale by the U.S. Marshal, &c., &c. To sustain this answer, the defendant produced the record in insolvency.

In November, 1854, the cause came on to be heard, and was submitted to the court, when judgment was entered in favor of Judson, against Lathrop, for $1,810.50, with interest from 2d May, 1845, till paid, and costs.

Lathrop sued out a writ of error, and brought the case up to this court.

It was argued by Mr. Taylor for the plaintiff in error, and Mr. Benjamin for the defendant.

Mr. Taylor assigned for error the following:

1st. That the exception and plea to the jurisdiction of the Circuit Court, founded on the fact that there was at the time an execution then in force, upon which a seizure had been made under the judgment sued on, was improperly overruled. And

2d. That the decision of the lower court, to the effect that the original cause of indebtedness was not a Louisiana contract, upon the facts set forth in the decision of the court, is erroneous, and contrary to law.

And then made the following points:I. In Louisiana, only one execution can issue at a time on a judgment; and when a judgment is in the course of execution in one court, no judgment can be had on the same claim, unless subject to the condition that no execution issue until the result of the proceedings on the execution be ascertained. Hudson v. Dangerfield, 2 L. R., 66; Newell v. Morton, 3 R., 102; Hennen's Dig., p. 782, No. 9.

II. Contracts are governed by the law of the place where they are entered into, and an obligation contracted or incurred is payable at the domicil or residence of the obligor, in the absence of an express stipulation making it payable elsewhere. Lynch v. Postlethwaite, 7 M. R., 213; Hennen's Dig., 1,068. Com. of Laws, Nos. 4, 5, 10; Shamburgh v. Commugen, 10 M. R., 15; Hepburn v. Toledano, 10 M. R., 643; 2 N. S., 511.

Mr. Benjamin took the following view of the case:

This record exhibits a writ of error prosecuted from the judgment of the Circuit Court, but there is neither assignment of error nor bill of exceptions.

It has been so often decided by this court, that it cannot take cognisance of a cause presented in this shape, that plaintiff in error could not have taken the writ with any other design than that of obtaining delay. Wherefore it is prayed that damages be allowed under the 17th rule of court. Arthurs and al. v. Hart, 17 Howard, 6; Weems v. George and al., 13 Howard, 190-'7; Bond v. Brown, 12 Howard, 254; Field v. United States, 9 Peters, 202; United States v. King, 7 Howard, 833; Zeller's Lessee v. Kckhart, 4 Howard, 289.

Mr. Justice McLEAN delivered the opinion of the court.

title: Lathrop v. Judson


text: Talk:Lathrop v. Judson

title: Talk:Lathrop v. Judson


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Lathrop v. Judson/Opinion of the Court

This is a writ of error to the Circuit Court for the eastern district of Louisiana.

The action was brought on a judgment rendered by the Supreme Court of Louisiana; certain matters were set up in the Circuit Court, as a defence, all of which were overruled, and judgment was entered for eighteen hundred and ten dollars, with interest and costs. The only errors assigned in this court, on which a reversal of the judgment of the Circuit Court is prayed, are: 1, that at the time suit was brought on the judgment, in the Circuit Court, an execution had been issued on the same judgment in the State court, which was in full force, and on which a seizure had been made; and 2, that the Circuit Court erred in holding that the indebtment was not founded on a Louisiana contract.

These exceptions were not taken in the progress of the trial in the Circuit Court, and do not appear on the record. The fact that an execution was issued and returned appears in the record of the State court, but it was not made a part of the record of the Circuit Court, by bill of exceptions, and it cannot now be noticed. There is no ground of error on the face of the record, for the action of this court. The judgment of the Circuit Court is affirmed with ten per cent. damages.

title: Lathrop v. Judson/Opinion of the Court


text: Talk:Lathrop v. Judson/Opinion of the Court


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Moore v. Greene

THIS was an appeal from the Circuit Court of the United States for the district of Rhode Island, sitting as a court of equity.

The bill was filed by Elizabeth Moore, a citizen of the State of New York, the great-grandchild of John Manton, of Rhode Island, who died in 1767. It alleged a series of frauds, beginning in 1757, when one of his sons-in-law prevailed upon him by fraud to make a deed; then that his three sons-in-law conspired together to have him declared non compos mentis; then that they fraudulently set aside his will; then that one of his sons-in-law cheated his own children out of their share of the estate, and the administrator became a party to the fraud; then that the Town Council, conniving with the sons-in-law, adjudged the paper not to be a lawful will, and that all the parties fraudulently prevented an appeal. These charges of fraud were made to include many other transactions which it is not necessary to specify. The claim of the complainant was, that she was entitled to a share of the lands held by the defendants; and the prayer was, that a partition might be decreed.

Hawkins filed his answer, saying that he had purchased property from Samuel W. King, who derived it from his father, Josiah King, who inherited it from his father, William B. King; and that he and the Kings had been in the uninterrupted and quiet possession of the property for more than twenty years before the filing of the bill, and therefore be pleaded the statute of limitations. He also denied all knowledge of the important facts stated in the bill.

Greene answered and explained the manner in which he had come into possession of the property, viz: from his father, Samuel Greene, who was a devisee of his father, Joshua Greene, who purchased it from Josiah King, administrator of John Manton, in 1770; since which time, it had been in the possession of the family. He also denied all knowledge of the alleged frauds, and pleaded the statute of limitations.

After taking much testimony, the cause came up for hearing in November, 1854, when the Circuit Court dismissed the bill with costs. The complainant appealed to this court.

It was submitted on printed arguments by Mr. Randall for the appellant, and Mr. Bradley for the appellee.

The argument of Mr. Randall covered a great deal of ground, as may be supposed, from the long period of time which his investigation included. But it is not deemed material to state all these points, or the reply of the opposing counsel. The manner in which Mr. Randall proposed to escape from the plea of the statute of limitations was by alleging a series of disabilities, in this manner:

John Manton died in 1767. Anna Waterman, his daughter, died before her father, leaving a daughter named Betty.

Betty was born in 1756. Betty was thus in her 17th year when her grandfather died, and came of age in 1777.

Betty married Carpenter before 1775, whilst she was yet a minor.

Bettery died in 1784-'5, leaving Elizabeth, the present plaintiff.

Elizabeth married Heman Moore in 1804, in the 19th or 20th year of her age.

Moore died in 1840.

Mr. Justice McLEAN delivered the opinion of the court.

title: Moore v. Greene


text: Talk:Moore v. Greene

title: Talk:Moore v. Greene