text:
Moore v. Greene/Opinion of the Court

This is an appeal in chancery from the Circuit Court for the district of Rhode Island.

The bill was filed to set aside certain titles for frauds alleged to have been committed in the year 1767, by a father against his own children, for the benefit of strangers. The frauds are stated to have been investigated and sanctioned, directly or indirectly, by the court of probate, by referees chosen by the parties to determine their matters of controversy, and by the highest courts of the State.

The legal history of the case commences in July, 1767, by the execution of a deed by the administrator of John Manton to Waterman and Pearce. From this period, a series of events are detailed, genealogical and historical, sweeping over near a century. Acts are stated in the bill, as it would seem, from mere vague reports, and sometimes resting on conjectures. And many of the facts set forth, if proved, and were of modern occurrence, would not be sufficient to avoid the titles enumerated; but the facts are denied generally by the answers, and not sufficiently proved by the evidence.

The lands when sold were comparatively of little value, but, by the progress of time and the advance of improvements, they are now covered with large manufacturing establishments and flourishing villages. Generation after generation has risen up and passed away, of individuals connected with these titles, who increased the value of the property by their large expenditures; and the property, by deed or will, or by the law of descents, has been transmitted through the generations that have passed, without doubt as to the legal ownership.

The bill was filed in 1851; its averments of facts, by which the lapse of time and the statute of limitations are sought to be avoided, are loose and unsatisfactory. The adverse entry is alleged to have been made, under the deed of the administrator of Manton, in 1767; and it appears that Betty Waterman, the complainant's grandmother, through whom the title is claimed to have descended, was born in 1756. She was of age in 1777, and in ten years afterward her right was barred by the statute. It is true, the date of her coverture does not appear, but as she was only eleven years of age in 1767, she could not then have been married; and if her marriage occurred subsequently, it was a cumulative disability, which is not allowed by the statute of Rhode Island. The complainant became of age, as it appears, in 1815, and her ten years expired in 1825. Her disability of coverture, and it was cumulative, expired in 1840, more than ten years before the bill was filed.

The complainant avers that from the death of John Manton, in 1767, to 1822-'3, and '4, his estates were the subjects of legal controversy and litigation in courts of law; and that ever since, renewed and continued claims and demands, by the heirs of Lydia Thornton and Betty Carpenter, for their proportion of said estates, as his rightful heirs at law, upon the assignees of the Manton estate, and upon all persons deriving title under them, have been continuously prosecuted. But prosecutions to stop the operations of the statute must be successful, and lead to a change in the possession.

When fraud is alleged as a ground to set aside a title, the statute does not begin to run until the fraud is discovered; and this is the ground on which the complainant asks relief. But, in such a case, the bill must be specific in stating the facts and circumstances which constitute the fraud; and also as to the time it was discovered. This is necessary to enable the defendants to meet the fraud, and the alleged time of its discovery. In these respects the bill is defective, and the evidence is still more so.

The complainant's counsel seem to suppose, that as the defendants in their answer admit the property, at least in part, was originally acquired under a sale of Manton's administrator, they are bound to show the proceedings were not only conformable to law, but that they must go further, and prove the debts for which it was sold were due and owing by the deceased. So far from this being the legal rule, under the circumstances of this case, the presumptions are in favor of the present occupants, and the complainants must show the administrator's sale was illegal and void. After an adverse possession of more than eighty years, when the facts have passed from the memory, and, as in this case, the papers are not to be found in the probate court, no court can require of the defendants proof in regard to such sale. The burden of proof falls upon him who attempts to disturb a possession of ages, transmitted and enjoyed under the forms of law.

Whether we consider the great lapse of time, and the change in the value of the property, or the statutes of limitation, the right of the complainant is barred. The decree of the Circuit Court is affirmed.

title: Moore v. Greene/Opinion of the Court


text: Talk:Moore v. Greene/Opinion of the Court

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


text:
Betts v. Lewis

THIS was an appeal from the District Court of the United States for the northern district of Alabama.

It was a bill filed by Betts against Lewis and wife, under the same circumstances which gave rise to the case of Lewis v. Darling, reported in 16 Howard, 1. It will be seen by a reference to that case, page 6, that Burr H. Betts was one of the legatees in the will of Samuel Betts.

It is not material in the present report to state the nature of the case.

It was argued by Mr. Butler for the appellant, and by Mr. Johnson for the appellees.

Mr. Justice CURTIS delivered the opinion of the court.

title: Betts v. Lewis


text: Talk:Betts v. Lewis

title: Talk:Betts v. Lewis


text:
Betts v. Lewis/Opinion of the Court

This is an appeal from the decree of the District Court of the United States for the northern district of Alabama, having the powers of a circuit court. The appellant filed his bill in that court to charge a legacy on property alleged to have come to the hands of the respondents, and to be chargeable with its payment. After answers had been filed, and while exceptions to one of the answers were pending, the respondents moved to dismiss the bill for want of equity, and the court ordered it to be dismissed. This was irregular, and the decree must be reversed. It is understood to be in conformity with the practice of the State courts of Alabama to entertain such a motion at any stage of the proceedings. But the equity practice of the courts of the United States is governed by the rules prescribed by this court, under the authority conferred upon it by the act of Congress, (McDonald v. Smalley, 1 Pet., 620,) and is the same in all the States. And this practice does not sanction the dismissal of the bill on a motion made while the parties are perfecting the pleadings. The question whether the bill contains any equity, may be raised by a demurrer. If the defendant answer, this question cannot be raised until the hearing. Non constat that a defect may not be removed before the hearing.

The case must be remanded to the Circuit Court, and if any defects exist in the bill capable of being cured by amendments, as no replication has been filed, it is within the rules of ordinary practice to allow them to be made.

title: Betts v. Lewis/Opinion of the Court


text: Talk:Betts v. Lewis/Opinion of the Court


text:
United States v. Le Baron (60 U.S. 73)

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

It was an action of debt upon the bond of a deputy postmaster at Mobile, signed Oliver S. Beers, the officer, and Charles Le Baron and George N. Stewart, his sureties.

The statement of the case contained in the opinion of the court renders it unecessary to recite the demurrers to the declaration and pleas, or the replications and rejoinders which were in the record. The point in controversy was found in the following charge given to the jury:

Upon this evidence the court charged the jury, that the recital in the condition of the bond sued on, 'whereas Oliver S. Beers is deputy postmaster at Mobile,' relates to the office he held when the bond was signed, and could not refer to a term of office not yet commenced.

The court further charged and said, that, according to the strict propriety of language, the said recital relates to the precise period of time when the recital was written, (speaking as it does of the present time,) and not to the time when it was executed by its delivery, which the admitted proof shows took place on a subsequent day.

That at the time said bond was signed, the said Beers was not in office under his appointment, by and with the advice and consent of the Senate, and therefore they, the jury, ought to find for the defendant.

To which charge of the court the plaintiffs, by their attorneys, then and there excepted, and asked the court to charge the jury that the bond related to, and was intended to provide, a security for the faithful discharge by Beers of the duties of the office of deputy postmaster at Mobile, under the appointment by and with the consent of the Senate; which charges the court refused to give; and plaintiffs then and there excepted, and asked the court to charge the jury that it was for them to determine to which term of said office the said bond related, and that the recital in it, that 'Beers is deputy postmaster at Mobile,' must be considered as made at the time when the bond was delivered and executed; which charge the court also refused to give; and the plaintiffs then and there excepted to such refusal, and prayed the court to sign and seal this their bill of exceptions, which is done accordingly, in term time.

JOHN GAYLE, Judge. [SEAL.]

The case was argued by Mr. Cushing (Attorney General) for the United States, and by Mr. Stewart for the appellee.

Mr. Justice CURTIS delivered the opinion of the court.

title: United States v. Le Baron (60 U.S. 73)


text: Talk:United States v. Le Baron (60 U.S. 73)


text:
United States v. Le Baron (60 U.S. 73)/Opinion of the Court

This is a writ of error to the Circuit Court of the United States for the southern district of Alabama, in an action of debt, founded on an official bond of Oliver S. Beers, as deputy postmaster at Mobile, the defendant being one of his sureties.

It appeared, on the trial in the Circuit Court, that Beers was appointed to that office by the President of the United States, during the recess of the Senate, and received a commission, bearing date in April, 1849, to continue in force until the end of the next session of the Senate, which terminated on the thirtieth day of September, 1850.

It also appeared, that in April, 1850, Beers was nominated by the President to the Senate, as deputy postmaster at Mobile; and the nomination having been duly confirmed, a commission was made out and signed by President Taylor, bearing date on the twenty-second day of April, 1850; but it had not been transmitted to Beers on the first day of July, 1850, when the bond declared on bears date. Beers took charge of the post office at Mobile before his second appointment, and continued to act, without intermission, until he was removed from office in February, 1853. The default, assigned as a breach of the bond, was admitted to have occurred under his second appointment; and the principal question upon this writ of error is, whether the bond declared on secures the faithful performance of the duties of the office under the first or under the second appointment.

The condition of the bond recites: 'Whereas the said Oliver S. Beers is deputy postmaster at Mobile aforesaid,' &c.

The first inquiry is, to what date is this recital to be referred? The district judge, who presided at the trial, ruled that it referred to the office held by Beers when the bond was signed. The delivery of a deed is presumed to have been made on the day of its date. But this presumption may be removed by evidence that it was delivered on some subsequent day; and when a delivery on some subsequent day is shown, the deed speaks on that subsequent day, and not on the day of its date.

In Clayton's case, (5 Co., 1,) a lease, bearing date on the 26th of May, to hold for three years 'from henceforth,' was delivered on the 20th of June. It was resolved, that 'from henceforth' should be accounted from the day of delivery of the indentures, and not from the day of their date; for the words of an indenture are not of any effect until delivery-traditic loqui facit chartam.

So in Ozkey v. Hicks, Cro. Jac., 263, by a charter-party, under seal, bearing date on the 8th of September, it was agreed that the defendant should pay for a moiety of the corn which then was, or afterwards should be, laden on board a certain vessel. The defendant pleaded that the deed was not delivered until the 28th of October, and that on and after that day there was no corn on board; and on demurrer, it was held a good plea, because the word then was to be referred to the time of the delivery of the deed, and not to its date.

And the modern case of Steel v. March, 4 B. and C., 272, is to the same point. A lease purported on its face to have been made on the 25th of March, 1783, habendum from the 25th of March now last past. It was proved that the delivery was made after the day of the date, and the Court of King's Bench held that the word now referred to the time of delivery, and not to the date of the indenture.

At the trial in the Circuit Court, it appeared that on the day after the date of the bond, Beers, in obedience to instructions from the Postmaster General, deposited it, together with a certificate of his oath of office under his last appointment, in the mail, addressed to the Postmaster General at Washington.

In Broome v. The United States, 15 How., 143, it was held that a collector's bond might be deemed to be delivered when it was put in a course of transmisson to the Comptroller of the Treasury, whose duty it is to examine and approve or reject such bonds. But this decision proceeded upon the ground that the act of Congress requiring these bonds, and their approval, had allowed the collector to exercise his office for three months without a bond; and that consequently the approval and delivery were not necessarily simultaneous acts, nor need the approval precede the delivery; and the distinction between bonds of collectors and those of postmasters is there adverted to. The former may take and hold office for three months without a bond. The latter must give bond, with approved security, on their appointment; and there is no time allowed them, after entering on their offices, to comply with this requirement. The bond must therefore be accepted by the Postmaster General, as sufficient in point of amount and security, before it can have any effect as a contract. Otherwise, the postmaster might enter on the office merely on giving a bond, which, on its presentation, the Postmaster General might reject as insufficient.

In other words, the person appointed might act without any operative bond, which, we think, was not intended by Congress. It is like the case of Bruce et al. v. The State of Maryland, 11 Gill and John., 382, where it was held that the bond of a sheriff took effect only when approved by the county court; because it was only on such approval that the sheriff was authorized to act.

The purpose of the obligee was to become security for one legally authorized to exercise the office; not for one who enters on it unlawfully, because he failed to comply with the requirement to furnish an approved bond; and this purpose can be accomplished only by holding that the appointee cannot act, and the bond cannot take effect, until it is approved. Our opinion is, therefore, that this bond speaks only from the time when it reached the Postmaster General, and was accepted by him; that until that time it was only an offer, or proposal of an obligation, which became complete and effectual by acceptance; and that, unlike the case of a collector's bond, which is not a condition precedent to his taking office, and which may be intended to have a retrospective operation, the bond of a postmaster, given on his appointment, cannot be intended to relate back to any earlier date than the time of its acceptance, because if is only after its acceptance that there can be any such holding of the office as the bond was meant to apply to.

Now, at the time when this bond was accepted by the Postmaster General, Beers had been nominated and confirmed as deputy postmaster; he had given bond in such a penalty, and with such security, as was satisfactory to the Postmaster General; he had taken the oath of office, and there was evidence that a certificate thereof had been filed in the General Post Office.

Upon this state of facts, we are of opinion that at that time his holding under the first appointment had been superseded by his holding under the second appointment; and when the bond says, 'is now postmaster,' it refers to such holding under the second appointment, and is a security for the faithful discharge of his duties under the second appointment.

It was suggested at the argument, that this bond was not, in point of fact, taken in reference to the new appointment, the was a new bond, called for by the Postmaster General under the authority conferred on him by the act of July 2, 1936. 5 Stat. at Large, 88, sec. 37.

To this there are several answers. No such ground appears to have been taken at the trial, and the rulings of the court, which were excepted to by the plaintiffs in error, precluded any such inquiry. These rulings were, that the holding to which the bond referred was a holding on the first day of July, and that Beers was in office on that day under the first appointment, and not under the second. This put an end to the claim, and rendered a verdict for the defendant inevitable.

But if this were otherwise, parol or extraneous evidence that the bond was not intended to apply to the holding under the second appointment, because it was a new bond taken to supersede an old one, would be open to the objections which the defendants in error have so strenuously urged.

There is no ambiguity in the bond. It refers to a holding at some particular date. The law determines that date to be the time when the bond took effect. Nothing remains but to determine upon the facts, under which appointment Beers then held; this also the law settles, and when it has thus been ascertained that he then held under the second appointment, evidence to show that the bond was not intended to apply to that appointment would directly contradict the bond, for it would show it was not intended to apply to the appointment which Beers then held, while the bond declares it was so intended. The defendant in error further insists, that Beers was not in office, under the second appointment, at the time this bond took effect, because the commission sent to him was signed by President Raylor, and was not transmitted until after his death.

When a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete. Congress may provide, as it has done in this case, that certain acts shall be done by the appointee before he shall enter on the possession of the office under his appointment. These acts then become conditions precedent to the complete investiture of the office; but they are to be performed by the appointee, not by the Executive; all that the Executive can do to invest the person with his office has been completed when the commission has been signed and sealed; and when the person has performed the required conditions, his title to enter on the possession of the office is also complete.

The transmission of the commission to the officer is not essential to his investiture of the office. If, by any inadvertence or accident, it should fail to reach him, his possession of the office is as lawful as if it were in his custody. It is but evidence of those acts of appointment and qualification which constitute his title, and which may be proved by other evidence, where the rule of law requiring the best evidence does not prevent.

It follows from these premises, that when the commission of a postmaster has been signed and sealed, and placed in the hands of the Postmaster General to be transmitted to the officer, so far as the execution is concerned, it is a completed act. The officer has then been commissioned by the President pursuant to the Constitution; and the subsequent death of the President, by whom nothing remained to be done, can have no effect on that completed act. It is of no importance that the person commissioned must give a bond and take an oath, before he possesses the office under the commission; nor that it is the duty of the Postmaster General to transmit the commission to the officer when he shall have done so. These are acts of third persons. The President has previously acted to the full extent which he is required or enabled by the Constitution and laws to act in appointing and commissioning the officer; and to the benefit of that complete action the officer is entitled, when he fulfils the conditions on his part, imposed by law.

We are of opinion, therefore, that Beers was duly commissioned under his second appointment.

For these reasons, we hold the judgment of the Circuit Court to have been erroneous, and it must be reversed, and the cause remanded with directions to award a venire facias de novo.

THE UNITED STATES, PLAINTIFFS IN ERROR,

v.

GEORGE N. STEWART.

In error to the Circuit Court of the United States for the southern district of Alabama.

Mr. Justice CURTIS.

The opinion of the court, in the preceding case, determines this, and the judgment of the Circuit Court must be reversed, in conformity with that opinion.


text: Talk:United States v. Le Baron (60 U.S. 73)/Opinion of the Court


text:
Willot v. Sandford

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

It was an action of ejectment brought by Sandford, a citizen of New York, to recover the following-described premises, viz:

A certain tract of land, containing 750 arpens, more or less, which was claimed by one Antoine Lamarche, as derived to him from the Government of Spain, was surveyed for said Lamarche by John Harvey, a deputy surveyor under the Government of the United States, and the plat of said survey duly certified by said Harvey, under date of December 20, 1805, and the same received for record by Antoine Soulard, surveyor general under the Government of the United States for the Territory of Louisiana, February 27, 1806; which said tract is situate, lying, and being on Lamarche's creek, alias Spencer's run, in St. Charles county, Missouri, and the claim thereto was duly confirmed to the said Antoine Lamarche, or his legal representatives, by an act of Congress entitled 'An act confirming claims to lands in the State of Missouri, and for other purposes,' approved July 4, 1836.

It is unnecessary to recite the evidences of title set forth upon the trial by the plaintiff and defendants, as they are set forth on both sides in the opinion of the court.

Amongst other rulings of the Circuit Court were the following, viz:

5. That the survey made by the United States surveyor, and on which issued the patent certificate and patent, is evidence of a high character that the land included in the survey is the same as that included in the confirmation to the legal representatives of Dissonet.

6. That said survey is not conclusive evidence that the land confirmed to the legal representatives of Dissonet was correctly located and surveyed by said survey.

7. If the jury, therefore, believe that the land sued for is not within the confirmation to the legal representatives of Dissonet, although it may be within the survey and patent, then such confirmation, survey, and patent, cannot protect said defendants in this suit.

It is not necessary to mention any of the other instructions or rulings of the Circuit Court.

The case was argued by Mr. Blair for the plaintiffs in error, and Mr. Lawrence for the defendant, upon which side there was also a brief filed by Mr. Glover.

Mr. Justice CATRON delivered the opinion of the court.

title: Willot v. Sandford


text: Talk:Willot v. Sandford

title: Talk:Willot v. Sandford


text:
Willot v. Sandford/Opinion of the Court

Peter Chouteau, claiming under one Dissonet, laid before Recorder Bates a claim for 800 arpens of land, situate in St. Charles county, Missouri. The evidence presented to the recorder was a certificate of a private survey embracing the claim as set up, with proof that Dissonet had inhabited and cultivated the land from 1798 to 1805. The recorder pronounced the claim valid as a settlement right to the extent of 640 acres, and declared that it ought to be surveyed as nearly in a square as might be, so as to include Dissonet's improvements; and, furthermore, that the land should be surveyed at the expense of the United States.

This report was confirmed by Congress, by the act of April 29, 1816. The land was surveyed in 1817, by authority of the United States. A patent certificate was forwarded to the General Land Office by the recorder of land titles at St. Louis, in 1823, and a patent issued on it in 1850. Protection is claimed by the defendants, under the survey and patent.

The jury was instructed by the Circuit Court, that the survey and patent were not conclusive evidence that the land they embraced was correctly located and surveyed according to the confirmation; and if they believed that the land sued for was not within the confirmation of the legal representatives of Dissonet, although it may be within the survey and patent, then the survey and patent would not protect the defendants.

Exceptions were taken to this ruling. The jury found that the official survey did not correspond to the confirmation, but that it was illegally extended so as to interfere with the claim on which the plaintiff relies. His claim is this: In 1805, Antoine Lamarche caused a private survey to be made by Harvey for 750 arpens of land, which he claimed by right of settlement. Lamarche laid his claim before the board of commissioners, but produced no evidence of inhabitation and cultivation; indeed, no evidence at all, except the surveyor's certificate. On coming before the board, in 1811, the claim was of course rejected; and thus it lay until 1833, when the board of commissioners organized under the act of July 9, 1832, took evidence which established the fact to their satisfaction, that Lamarche had inhabited and cultivated the land, and was entitled to a confirmation; and in 1835 they recommended to Congress that the claim ought to be confirmed according to Harvey's survey of 1805; and it was thus confirmed by the act of July 4, 1836.

Harvey's survey covers the land in dispute, which is overlapped on its eastern boundary by the survey and calls of the patent to Dissonet; and within this interference the defendants hold possession.

Up to the date of the confirmation of Lamarche's claim, in 1836, it had no standing in a court of justice. So this court has uniformly held. Les Bois v. Brommell, 4 Howard.

In the next place, the United States reserved the power to survey and grant claims to lands in the situation that these contending claims were when confirmed; nor have the courts of justice any authority to disregard surveys and patents, when dealing with them in actions of ejectment. This court so held in the case of West v. Cochran, and will not repeat here what is there said.

When the survey of 1817 for Dissonet's land was recognised at the surveyor general's office as properly executed, which was certainly as early as 1823, then Dissonet had a title that he could enforce by the laws of Missouri, and which was the elder and better; it being settled that where there are two confirmations for the same land, the elder must hold it. A more prominent instance to this effect could hardly occur, than that of rejecting the younger confirmation in the case of Les Bois v. Brommell, above cited.

The act of 1811, reserving lands from sale which had been claimed before a board of commissioners, has no application to such a case as this one. It was so declared in the case of Menard v. Massey, 8 Howard, 309, 310.

It is ordered, that the judgment of the Circuit Court be reversed, and a venire de novo awarded.

title: Willot v. Sandford/Opinion of the Court


text: Talk:Willot v. Sandford/Opinion of the Court


text:
Page:Syria, the land of Lebanon (1914).djvu/157

THE RICHES OF DAMASCUS cuts across the center of the bazaar district from east to west, may roughly be considered the dividing line between the Jewish and the Christian Quarters. The flippant jest to the effect that the writer of the Acts said only that the thoroughfare was "called" straight, is hardly justified by the facts. This is, in fact, the straightest, longest street in all Damascus, as well as one of the widest. It was once divided into three parallel roadways by Corinthian colonnades, some few remains of which can still be found. To-day it is covered for half its length with a high, arching metal roof, and contains many of the largest and most modern stores in the city.

Beside this busy bazaar the Damascus Moslems show the tomb of the disciple Ananias, whose memory they hold in great respect. His reputed residence, which lies some distance away in the center of the Christian Quarter, is in charge of Latin monks. All that remains of the house is a low, cave-like chapel, twenty or more feet below the street. By itself, however, this fact furnishes no argument against the correctness of the location; for the level of every crumbling, undrained Syrian city constantly rises century by century.

Turning now into the Moslem Quarter, we pass through a tasteful little garden, closely planted with shade trees, and enter an unpretentious building. Here rests one of the greatest Moslem heroes and the most formidable opponent of the Crusaders — [ 119 ]


text: Vandewater v. Mills

title: Vandewater v. Mills


text: Talk:Vandewater v. Mills

title: Talk:Vandewater v. Mills


text:
Vandewater v. Mills/Opinion of the Court

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

It was a libel, filed originally in the District Court, by Vandewater, against the steamer Yankee Blade, for a violation of the following agreement:

'This agreement, made this twenty-fourth day of September, 1853, at the city of New York, between Edward Mills, as agent for owners of steamship Uncle Sam, and William H. Brown, as agent for the owners of steamship America, witnesseth, that said Mills and Brown hereby agree with each other, as agents for the owners of said ships before named, to run the two ships in connection for one voyage, on terms as follows, viz:

'Of all moneys received from passengers, and for freight contracted through, between New York and San Francisco, both ways, the Uncle Sam shall receive seventy-five per cent., and the America shall receive twenty-five per cent. The money to be received here, by said E. Mills, and the share of the America to be paid over to William H. Brown, or to his order, (before the sailing of the ship,) and the the share due the America, of moneys received on the Pacific side, to be paid over to said Brown, or to his order, immediately on the arrival of the passengers in New York, by E. Mills, who guaranties, as agent aforesaid, the true and honest return of all funds received by his agents on the Pacific. It is understood that this trip is to be made by the Uncle Sam, leaving San Francisco on or about the 15th of October, and the America leaving New York on or about the 20th of October next.

'Each ship is to pay all expenses of her running and outfits, and to be responsible for her own acts in every respect. Each ship is to retain all the money received for local freight or passengers; that is, for such freight and passengers as only pay to the ports the individual ship runs to, without any division with the other ship.

'No commissions are to be charged anywhere on any receipts for the America, by said Mills, in division, but the expense of advertising and the amount paid out for runners, at all points, are to be borne by each ship in the same proportion as receipts are divided between them.

'In consideration of all the above well and truly performed in good faith, Edward Mills, as agent for the steamship Yankee Blade, hereby agrees, that when the America arrives at Panama, on her voyage hence for the Pacific ocean, said ship Yankee Blade shall leave New York at such time as to connect with the America, conveying passengers and freight on the same terms as is herein before agreed, (say 25 per cent. to the Yankee Blade, and 75 per cent. to the America.) Provided, only, that said connection shall be made at a time that will not prevent the Yankee Blade from making her connection with the Uncle Sam, at her regular time.'

After the usual preliminary proceedings in cases of libel, the proctors for the claimant filed the following exceptions:

The exceptions of Edward Mills, claimant and sole owner of the steamship Yankee Blade, to the libel of Robert J. Vandewater, libellant, allege that the said libel is insufficient, as follows:

First Exception.-That, on the face of said libel, it appears that the alleged cause or causes of action therein set forth, are not within the admiralty and maritime jurisdiction of this honorable court.

Second Exception.-There is no cause of action set forth in said libel, whereby the said steamship Yankee Blade can be proceeded against in rem in this honorable court.

Third Exception.-On the face of said libel, it appears the libellant is not entitled to the relief therein prayed for, nor to any decree against the said steamship.

And, therefore, the said claimant prays that the said libel may be dismissed with costs.

In June, 1855, the district judge sustained the exceptions, and dismissed the libel, whereupon the libellant appealed to the Circuit Court.

In September, the Circuit Court affirmed the decree, and the libellant brought the case up to this court.

It was argued by Mr. Cutting for the appellant, and Mr. Blair for the appellee.

I. Agreements for carrying passengers and freight on the high seas are maritime contracts, pertaining exclusively to the business of commerce and navigation, and may be enforced specifically against the vessel by courts of admiralty proceeding in rem.

No express pledge is necessary in order to create the lien.

The jurisdiction in rem for breach of contracts of affreightments, by vills of lading or otherwise, is recognised by numerous cases. The ground of such jurisdiction rests upon the maritime nature and subject-matter of the contract. 6 How. U.S. R., 392.

Contracts to carry passengers are analogous in principle. They are of a maritime nature in their essence and subject-matter; and when entered into with a particular ship, they bind her to the due performance of the service. The Pacific, 1 Blatch. R., 576, and the cases and arguments there presented.

II. This court has recognised and adopted this principle.

1. Maritime torts to passengers may be redressed in the admiralty in rem, by reason of the vessel being bound by the contract. S. B. New World v. King, 16 How. U.S. R., 469.

2. The case of the New Jersey Steam Navigation Company v. The Merchants' Bank, 6 How. U.S. R., 392, establishes that contracts to be executed on the seas are maritime in their nature, and within the admiralty jurisdiction, as well in personam as in rem. The principle of that case embraces the present.

III. The contract, by Mills, as agent of the owners of the Yankee Blade, to proceed from New York with passengers and freight, to carry them to Panama, and to deliver them to the America, to be carried by her to San Francisco, is for a maritime service, to be performed upon the sea, and within the jurisdiction of the District Court of the United States.

1. The mode or rate of compensation to be paid therefor does not affect the jurisdiction of the court. The action is for a non-performance of the contract-not for an accounting. The circumstance that the amount of damages might, in part, depend upon the number of passengers that would have been carried, is of no consequence.

2. The agreement did not constitute a partnership between the steamers. Neither party had any joint interest in the vessel of the other, or in the voyage; there was no sharing of losses; each ship was to pay her own expenses of running and of outfits, and was responsible for her own acts in every respect.

The agreement to divide gross receipts was merely a mode of ascertaining the compensation to each vessel, for her separate services.

3. Even if the agreement were to be treated as a mutual arrangement between two vessels, for a joint service, to be rendered by them, on the sea-the compensation therefor to be an apportionment between them, of the whole freight and passage money to be earned by both-it would be a maritime contract, over which the admiralty has jurisdiction. 3 How., 568.

4. The contract is not one merely preliminary to a charter-party, but is a complete arrangement, to be treated as a charter-party, containing in itself the substantial provisions of such an instrument-a definite voyage to be performed on one side, and a definite compensation to be paid therefor by the other side. 3 Sum. R., 144, 148, 149.

Each vessel hired the use and employment of the other, for the proposed adventure; each was to receive, as compensation for such hiring, a certain sum, proportioned to the receipts of both vessels, for that trip. The distinctive characteristics of a charter-party are found.

The question of jurisdiction does not depend upon the particular name or character of the instrument, but whether it imports a maritime contract or not. The Tribune, 3 Sum. R., 144, 148.

5. The objection of the Circuit Court, that the contract was made by the owners, at the home port, does not appear to be authorized by any fact established in the case. The allegation of residence in the claim, (p. 8,) was merely formal, and not issuable. It does not appear where the owner or owners of the Yankee Blade resided at the time of the contract, nor what was her home port.

6. But assuming that the Yankee Blade belonged to New York, and that her owners resided there at the time of the contract, the Circuit Court erred in supposing that there could be no lien for that reason. The existence of a lien depends on the nature of the contract; and if that be maritime, and creates a lien, the circumstance that it is executed by the owner in person does not affect it. 1 Valin Ord. de la Mar., 630, Liv. III, Tit. I, Art. II; 2 Boul. Pat. Droit Com., 298; 3 Pardessus Lois Mar., 159; Ib., 281, 427; 2 Boucher Consul., 379, sec. 675; p. 457, sec. 870; 4 Pardessus, p. 40.

Contracts of affreightment and to carry passengers are frequently (and in New York most generally) made by the owners, or their immediate agents, in the home port. When bills of lading are signed in the home port by the owner, the lien of the shippers exists equally, as if the master had signed them.

The following are cases of liens created by contracts made with the owners in the home port: The Pacific, 1 Blatch. R., 576; The Aberfoyle, Ib., 207; Bearse v. Pigs Copper, 1 Sto., 314; The Mary, 1 Paine R., 671; The Draco, 2 Sum., 179.

7. The conclusion of the learned circuit judge, that this was a personal agreement between the owners of the two ships, and that a personal credit existed, which excluded the idea of a lien on the vessels, is not authorized by the facts.

The contract describes each of the parties to it, 'as agent' of the owners. The 'agents' acted as representatives of the vessels; the owners are not named or referred to. The inference is, that a mere personal credit was not relied on, to the exclusion of a lien.

1. That the contract on which this proceeding is founded, is not a maritime contract.

It is an agreement between the owners of two steamships, to run their vessels in combination, in the transportation of freight and passengers, between New York and San Francisco, and to divide the proceeds between them; and also an engagement, by one of the parties who is to receive all the money, to pay over to the other his proportion.

So much of this contract as relates to maritime service is but preliminary. No maritime service is contracted for, one to the other. Such services are thereafter to be contracted for, and rendered to other persons by both the parties. In such case, there is no jurisdiction. Sheppard v. Essex Ins. Co., 3 Mason, 6.

There is no difference in principle in this, from the contract which this court considered in the case of Phoebus v. The Orleans, (11 Peters, 175.) The owners of the Orleans had an agreement to combine their means, and, as part owners, to run a single vessel for the public accommodation. Here is a combination, in which different vessels are run for the same purpose. The court would take no account between the owners of the Orleans. Whether one of the parties to the enterprise had failed to contribute his share, was not a subject of admiralty jurisdiction. There is no difference, as affects that question, whether it be alleged, as in the case of the Orleans, that one party had contributed more than the other towards the enterprise, or whether, as in this case, it be alleged that one party refused to contribute at all.

The similitude of the contracts would be obvious, if the claim here were for the earnings of the trip contemplated in the contract. But it is in right of such earnings that this suit is brought, and though no such earnings were received as were contemplated, it is alleged that this is the fault of the other party, and should not prevent an accounting as if they had been actually received.

Consortship, it is true, is treated as a class of maritime contracts by Judge Conkling, pp. 15, 236, 849, of his Admiralty Jurisdiction. But he says the case of Andrews v. Wall, 3 Howard, p. 568, is the only reported case relating to it. But the question there was, not whether consortship was a maritime contract, but related to the distribution of salvage among those entitled. The consort contract was incidental only, and was considered merely so far as to see whether it was subsisting at the time of the wreck. The nature of the consideration of the contract was not material.

The case of Cutter v. Roe, 7 Howard, 730, also shows that the nature of the consideration will not give character to a contract, or give jurisdiction even in personam.

2. But if this be regarded a maritime contract at all, it is certainly only partly so; the object, as between the parties, being to stipulate for the division of the proceeds to accrue to them from their services to others. It therefore falls within the case of Plummer v. Webb, 4 Mason, 380, and L'Arena v. Manwaring, Bee, 199, in which the court declined jurisdiction, because the whole contract was not of a maritime nature.

3. But the proceeding is in rem, and the advocates of the largest measure of admiralty jurisdiction for the district courts admit that they have not jurisdiction to enforce maritime contracts by such proceedings, unless the contract expressly or by implication creates a lien on the ship. The Draco, 2 Sumner, 180.

It is contended that this contract is in the nature of a charter-party, and therefore a lien is implied. See definition of charter-party, Abbott, p. 241.

It is certainly not a contract for the hiring of a ship, or any part of one; nor is it a contract for the transportation of persons or property. The parties to such contracts are carriers on one side, and freighters, charterers, or passengers, on the other. Here is merely an arrangement between carriers, in contemplation of making such contracts, to enable them to co-operate in fulfilling them, and for the division of the proceeds between themselves. No maritime service is rendered to each other. The relations to each other are those of employees of a common employer; and it is expressly stipulated that each is to render to their common employers the service contemplated, at their own cost and risk. The contracting parties are neither of them freighters or passengers, and there is not the remotest analogy upon which to found a claim for the remedies allowed such parties by the maritime law.

But even an express contract of affreightment creates no lien on the vessel till the cargo is shipped. Schooner Freeman v. Buckingham, 18 Howard, p. 188.

4. The case of Blaine v. Carter, 4 C., 331, shows that the law does not favor implied hypothecations of the ship in obligations executed by the owner in the home port; and this is admitted by Judge Story in the case of the Draco above cited. In the absence of any precedent or established usage creating a lien in like cases, with reference to which the parties could be presumed to have contracted, there ought to be explicit language in the contract itself to create such a lien. It would be mischievous to annex liens by implication to such contracts; there would be nothing to give notice of their existence; they are not accompanied by possession, and so are not lost by being out of possession; and they do not arise from any shipments, supplies, or services, or other transactions which can be seen or known-so there would be no safety to the purchaser of vessels, if liens can be so created.

Mr. Justice GRIER delivered the opinion of the court.

The libel in this case sets forth a contract between the owners of certain steamboats, of which the Yankee Blade was one, to convey freight and passengers between New York and California. Among other things, it was agreed that the America should proceed to Panama, and the Yankee Blade should leave New York at such time as to connect with the America. The owner of the Yankee Blade refused to employ his vessel according to this agreement, and sent her to the Pacific under a contract with other persons. For this breach of contract the libellant demands damages, assuming that the vessel is subject, under the maritime law, to a lien which may be enforced in rem in a court of admiralty.

The Circuit Court dismissed the libel, being of opinion 'that the instrument is of a description unknown to the maritime law; that it contains no express hypothecation of the vessel, and the law does not imply one.'

In support of his allegation of error in this decree, the learned counsel for the appellant has endeavored to establish the following proposition:

'Agreements for carrying passengers are maritime contracts, pertaining exclusively the business of commerce and navigation, and consequently may be enforced specifically against the vessel by courts of admiralty proceeding in rem.'

Assuming, for the present, the premises of this proposition to be true, let us inquire whether the conclusion is a legitimate consequence therefrom.

The maritime 'privilege' or lien is adopted from the civil law, and imports a tacit hypothecation of the subject of it. It is a 'jus in re,' without actual possession or any right of possession. It accompanies the property into the hands of a bona fide purchaser. It can be executed and divested only by a proceeding in rem. This sort of proceeding against personal property is unknown to the common law, and is peculiar to the process of courts of admiralty. The foreign and other attachments of property in the State courts, though by analogy loosely termed proceedings in rem, are evidently not within the category. But this privilege or lien, though adhering to the vessel, is a secret one; it may operate to the prejudice of general creditors and purchasers without notice; it is therefore 'stricti juris,' and cannot be extended by construction, analogy, or inference. 'Analogy,' says Pardessus, (Droit Civ., vol. 3, 597,) 'cannot afford a decisive argument, because privileges are of strict right. They are an exception to the rule by which all creditors have equal rights in the property of their debtor, and an exception should be declared and described in express words; we cannot arrive at it by reasoning from one case to another.'

These principles will be found stated, and fully vindicated by authority, in the cases of The Young Mechanic, 2 Curtis, 404, and Kiersage, Ibid., 421; see also Harmer v. Bell, 22 E. L. and E., 62.

Now, it is a doctrine not to be found in any treatise on maritime law, that every contract by the owner or master of a vessel, for the future employment of it, hypothecates the vessel for its performance. This lien or privilege is founded on the rule of maritime law as stated by Cleirac, (597:) 'Le batel est oblig ee a la marchandise et la marchandise au batel.' The obligation is mutual and reciprocal. The merchandise is bound or hypothecated to the vessel for freight and charges, (unless released by the covenants of the charter-party,) and the vessel to the cargo. The bill of lading usually sets forth the terms of the contract, and shows the duty assumed by the vessel. Where there is a charter-party, its covenants will define the duties imposed on the ship. Hence it is said, (1 Valin, Ordon. de Mar., b. 3, tit. 1, art. 11,) that 'the ship, with her tackle, the freight, and the cargo, are respectively bound (affect ee) by the covenants of the charter-party.' But this duty of the vessel, to the performance of which the law binds her by hypothecation, is to deliver the cargo at the time and place stipulated in the bill of lading or charter-party, without injury or deterioration. If the cargo be not placed on board, it is not bound to the vessel, and the vessel cannot be in default for the non-delivery, in good order, of goods never received on board. Consequently, if the master or owner refuses to perform his contract, or for any other reason the ship does not receive cargo and depart on her voyage according to contract, the charterer has no privilege or maritime lien on the ship for such breach of the contract by the owners, but must resort to his personal action for damages, as in other cases.

See 2 Boulay, Paty Droit Com. and Mar., 299, where it is said, 'Hors ces deux cas, (viz: default in delivery of the goods, or damages for deterioration,) il n'y a pas de privilege a pretendre de la part du marchand chargeur; car si les dommages et interets n'ont lieu que pour refus de depart du navire, pour depart tardif ou precipite, pour saisie du navire ou autrement il est evident que a cet egard la cr eance est simple et ordinaire, sans aucune sorte de privilege.'

Thus, in the case of the City of London, (1 W. Robinson, 89,) it was decided that a mariner who had been discharged from a vessel after articles had been signed, might proceed in the admiralty in a suit for wages, the voyage for which he was engaged having been prosecuted; but if the intended voyage be altogether abandoned by the owner, the seaman must seek his remedy at common law by action on the case.

And this court has decided, in the case of The Schooner Freeman v. Buckingham, 18 Howard, 188, 'that the law creates no lien on a vessel as a security for the performance of a contract to transport cargo, until some lawful contract of affreightment is made, and a cargo shipped under it.'

Now, the damages claimed by the libellant, in this case, are not for the non-delivery of merchandise or cargo at the time and place according to the covenants of a charter-party, or for their injury or deterioration on the voyage, but for a refusal of the owners to employ the vessel in carrying passengers and freight from New York, so as to connect with the America when she should arrive at Panama. The owners have not made it a part of their agreement that their respective vessels should be mutually hypothecated as security for the performance of their agreement; and, as we have shown, there is no tacit hypothecation, privilege, or lien, given by the maritime law.

We have examined this case from this point of view, because the libel seems to take it for granted that every breach of contract, where the subject-matter is a ship employed in navigating the ocean, gives a privilege or lien on the vessel for the damages consequent thereon, and because it was assumed in the argument, that if this contract was in the nature of a charter-party, or had some features of a charter-party, the court would extend the maritime lien by analogy or inference, for the sake of giving the libellant this remedy, and sustaining our jurisdiction. But we have shown this conclusion is not a correct inference from the premises, and that this lien, being stricti juris, will not be extended by construction. It is, moreover, abundantly evident that this contract has none of the features of a charter-party. A charter-party is defined to be a contract by which an entire ship, or some principal part thereof, is let to a merchant for the conveyance of goods on a determined voyage to one or more places. (Abbott on Ship., 241.)

Now, by this agreement, the libellant has not hired the Yankee Blade, or any portion of the vessel; nor have the master or owners of the ship covenanted to convey any merchandise for the libellant, nor has he agreed to furnish them any. But the agent for the Yankee Blade 'agrees that when the America arrives at Panama, the Yankee Blade shall leave New York, conveying passengers and freight,' which were afterwards to be received by the America, and transported to San Francisco; and the passage money and freight earned was to be divided between them-25 per cent. to the Yankee Blade, and 75 to the America.

This is nothing more than an agreement for a special and limited partnership in the business of transporting freight and passengers between New York and San Francisco, and the mere fact that the transportation is by sea, and not by land, will not be sufficient to give the court of admiralty jurisdiction of an action for a breach of the contract. It is not one of those to which the peculiar principles or remedies given by the maritime law have any special application, and is the fit subject for the jurisdiction of the common-law courts.

The decree of the Circuit Court is therefore affirmed.


text: Talk:Vandewater v. Mills/Opinion of the Court


text:
United States v. Neurea

THIS was an appeal from the District Court of the United States for the northern district of California.

The case presented a general demurrer to the following libel for information:

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. IN ADMIRALTY.

To the Hon. Ogden Hoffman, Jr., Judge of the District Court of the United States for the Northern District of California:

The libel of Samuel W. Inge, attorney of the United States for the northern district of California, who prosecutes on behalf of the said United States against the brig Neurea, and against all persons intervening for their interest therein, in a cause of forfeiture, alleges and informs as follows:

1. That Richard P. Hammond, Esq., collector of the customs for the district of San Francisco, heretofore, to wit, on the thirty-first day of August, in the year of our Lord eighteen hundred and fifty-four, at the port of San Francisco, and within the northern district of California, on waters that are navigable from the sea by vessels of ten or more tons burden, seized as forfeited to the use of the said United States the said brig Neurea, being the property of some person or persons to the said attorney unknown.

2. That one Kohler, master of the said brig Neurea, which is a vessel owned wholly or in part by a subject or subjects of the kingdom of Sweden, did on the first day of June, in the year of our Lord eighteen hundred and fifty-four, at the foreign port of Hong Kong, in China, take on board said vessel two hundred and sixty-three passengers, which was a greater number of passengers than in the following proportion to the space occupied by them and appropriated for their use on board said vessel, and unoccupied by stores or other goods not being the personal luggage of such passengers, that is to say, on the lower deck or platform, one passenger for every fourteen clear superficial feet of deck, with intent to bring said passengers to the United States of America, and did leave said port with the same; and afterwards, to wit, on the twenty-sixth day of August, in the year of our Lord eighteen hundred and fifty-four, did bring the said passengers, being two hundred and sixty-three in number, on board the said vessel, to the said port of San Francisco, within the jurisdiction of the United States, and that the said passengers so taken on board of said vessel, and brought into the United States as aforesaid, did exceed the number which could be lawfully taken on board and brought into the United States as aforesaid, as limited by the first section of the act of Congress approved February 22, 1847, entitled 'An act to regulate the carriage of passengers' 'in merchant vessels,' to the number of twenty in the whole, in violation of the act of Congress of the United States in such cases made and provided, and that by force and virtue of the said acts of Congress, in such case made and provided, the said vessel became and is forfeited to the use of the said United States.

And the said attorney saith, that by reason of all and singular the premises aforesaid, and by force of the statute in such case made and provided, the aforementioned vessel became and is forfeited to the use of the said United States.

Lastly, that all and singular the premises aforesaid are true, and within the admiralty and maritime jurisdiction of the United States and of this court.

Wherefore the said attorney prays the usual process and monition of this court in this behalf to be made, and that all persons interested in the said vessel may be cited in general and special to answer the premises, and all due proceedings being had, that the said vessel may be, for the causes aforesaid and other appearing, be condemned by the definitive sentence and decree of this court, as forfeited to the use of the said United States, according to the form of the statute of the said United States in such case made and provided.

The act of Congress referred to will be found in 9 Stat. at Large, 127.

The court below sustained the demurrer and dismissed the libel, from which decree the United States appealed.

It was argued for the United States by Mr. Cushing, (Attorney General.)

Mr. Justice GRIER delivered the opinion of the court.

title: United States v. Neurea


text: Talk:United States v. Neurea

title: Talk:United States v. Neurea


text:
United States v. Neurea/Opinion of the Court

The Swedish brig Neurea was seized by the collector of customs at San Francisco, as forfeited to the United States under the passenger act of 1847. The record in this case exhibits the libel for information, filed on behalf of the United States, a demurrer thereto by the claimant, and a decree of the court below dismissing the libel. The appeal, therefore, brings under review the question of the sufficiency of the libel.

The claimant sets forth the following grounds of demurrer:

1. That the said libel states no sufficient cause of condemnation of said ship.

2. Because the said libel states no offence against the laws of the United States.

3. Because the said libel does not aver that the excess of passengers carried or imported on said ship were so carried or imported on the lower deck of said brig, or the orlop deck thereof.

4. Because the facts stated in said libel do not constitute a violation of the passenger act of the United States of 1847, or any other law of the United States.

The first, second, and fourth, are but different forms of the same general assertion, 'that the libel states no offence.'

The third, which is more specific, objects to the libel for want of an averment that the passengers were carried on the lower deck.

An information for forfeiture of a vessel need not be more technical in its language, or specific in its description of the offence, than an indictment. As a general rule, an indictment for a statute offence is sufficient, if it describe the offence in the very words of the statute. The exceptions to this rule are, where the offences created by statute are analogous to certain common-law felonies or misdemeanors, where the precedents require certain technical language, or where special averments are necessary in the description of the particular offence, in order that the defendant may afterwards protect himself under the plea of autrefois acquit or convict. (See on this subject United States v. Gooding, 12 Wheaton, 474.)

The offence created by the statute on which this libel is founded has no analogy to any particular common-law crime. If, therefore, the libel sets forth the offence in the words of the statute which creates it, with sufficient certainty as to the time and place of its commission, it is all that is necessary to put the claimant on his defence.

The object of the act in question is the protection of the health and lives of passengers from becoming a prey to the avarice of ship owners. In order to test the sufficiency of the libel, it will be necessary to set forth at length the two sections under which it was framed:

The first section provides, that no master 'shall take on board such vessel, at any foreign port or place, a greater number of passengers than in the following proportion to the space occupied by them and appropriated to their use, and unoccupied by stores or other goods not being the personal baggage of such passengers, that is to say, on the lower deck or platform, one passenger for every fourteen clear superficial feet of deck, if such vessel is not to pass within the tropics during such voyage; but if such vessel is to pass within the tropics during such voyage, then one passenger for every twenty such clear superficial feet of deck; and on the orlop deck, (if any,) one passenger for every thirty such superficial feet in all cases, with intent to bring such passengers into the United States of America, and shall leave such port, or place, with the same, and bring the same, or any number thereof, within the jurisdicdiction of the United States aforesaid, or if any such master of vessel shall take on board of his vessel, at any port or place within the jurisdiction of the United States aforesaid, any greater number of passengers than the proportions aforesaid admit, with the intent to carry the same to any foreign port or place, every such master shall be deemed guilty of a misdemeanor, and upon conviction thereof before any circuit or district court of the United States aforesaid, shall, for each passenger taken on board beyond the above proportions, be fined in the sum of fifty dollars, and may also be imprisoned for any term not exceeding one year: Provided, that this act shall not be construed to permit any ship or vessel to carry more than two passengers to every five tons of such ship or vessel.'

'SEC. 2. That if the passengers so taken on board such vessel, and brought into, or transported from, the United States aforesaid, shall exceed the number limited by the last section, to the number of twenty in the whole, such vessel shall be forfeited to the United States aforesaid, and be prosecuted and distributed as forfeitures are under the act to regulate duties on imports and tonnage.'

Now, the libel conforms strictly to the requirements of this act.

It avers, that the master 'took on board the Neurea at Hong Kong, in China, on the 1st of June, 1854, two hundred and sixty-three passengers. That this was a greater number than in proportion to the space occupied by them, viz: 'on the lower deck or platform' one passenger for every fourteen clear superficial feet, with intent to bring said passengers to the United States. That he afterwards, viz: on the 26th day of August, did bring them on said vessel to the port of San Francisco. That the passengers so taken on board and brought into the United States did exceed the number which could be lawfully taken, to the number of twenty in the whole, &c.

The act does not require an averment that the passengers 'were carried or imported on the lower deck or the orlop deck.'

The libel sets forth every averment of time, place, numbers, intention, and act, in the very words of the statute. It was not necessary to specify the precise measurement of the deck, or to show by a mathematical calculation its incapacity; nor to state the sex, age, color, or nation, of the passengers; nor how many more than twenty their number exceeded the required area on deck. All these particulars were matters of evidence, which required no special averment of them to constitute a complete and technical description of the offence.

The decree of the District Court is therefore reversed, and record remitted for further proceedings.


text: Talk:United States v. Neurea/Opinion of the Court


text: Seymour v. McCormick (60 U.S. 96)

title: Seymour v. McCormick (60 U.S. 96)


text: Talk:Seymour v. McCormick (60 U.S. 96)

title: Talk:Seymour v. McCormick (60 U.S. 96)


text:
Seymour v. McCormick (60 U.S. 96)/Opinion of the Court

THIS case came up, by writ of error, from the Circuit Court of the United States for the northern district of New York.

It was a suit brought by McCormick against Seymour and Morgan, for a violation of his patent right for reaping machines, which suit was previously before this court, and is reported in 16 Howard, 480.

It will be seen by reference to that case that McCormick obtained three patents, viz: in 1834, 1845, and 1847. The suit, as originally brought, included violations of the patent of 1845, as well as that of 1847; but the plaintiff, to avoid delay, proceeded then only in his claim for a violation of the patent of 1847, which consisted chiefly in giving to the raker of the grain a convenient seat upon the machine. When the case went back under the mandate of this court, the claim was for the violation of the patent of 1845, that of 1847 being mentioned only in the declaration, and not brought before the court upon the trial, the main question being the violation of the patent of 1845.

McCormick's claim in the patent of 1845 was as follows, viz:

I claim, 1st, the curved (or angled downward, for the purpose described) bearer, for supporting the blade in the manner described.

2d. I claim the reversed angle of the teeth of the blade, in manner described.

3d. I claim the arrangement and construction of the fingers, (or teeth for supporting the grain,) so as to form the angular spaces in front of the blade, as and for the purpose described.

4th. I claim the combination of the bow, L, and dividing iron, M, for separating the wheat in the way described.

5th. I claim setting the lower end of the reel-post, R, behind the blade, curving it at R 2, and leaning it forward at top, thereby favoring the cutting, and enabling me to brace it at top by the front brace (S) as described, which I claim in combination with the post.

The fourth and fifth claims were those which were alleged to have been infringed.

The defendants pleaded the general issue, and gave notice of various prior inventions and publications in public works, which they designed to give in evidence in their defence. The last trial was had in October, 1854, when the plaintiff obtained a verdict for $7,750, and judgment was entered in June, 1855, for $10,348.30.

There were twenty exceptions taken in the progress of the trial, twelve of which were as to rulings upon points of evidence, which it is not material to notice. The remaining eight were to portions of the charge of the court to the jury.

The defendants, in addition to other matters of defence, alleged that the second claim was not new, and that as there had been unreasonable delay in the disclaimer of it, the plaintiff was not entitled to recover at all; and, at all events, was not entitled to recover costs.

Only such portions of the charge of the court to the jury will be here inserted, as were the subjects of the opinion of this court.

One part of the charge was as follows, viz:

'The claim in question is founded upon two parts of the patent. As the construction of that claim is a question of law, we shall construe it for your guidance. In the fore part of the patent, we have a description of the blade, and of the bladecase, and of the cutter, and of the mode of fastening the blade and the blade-case and the cutter, and of the machinery by which the arrangement is made for the cutter to work. We have also the description of the spear-shaped fingers, and of the mode by which the cutter acts in connection with those fingers. Then, among the claims are these: '2. I claim the reversed angle of the teeth of the blade in manner described. 3. I claim the arrangement of the construction of the fingers, (or teeth for supporting the grain,) so as to form the angular spaces in front of the blade, as and for the purpose described.' Now, it is insisted, on the part of the learned counsel for the defendants, that this second claim is one simply for the reversed angles of the sickle-teeth of the blade. These teeth are common sickle-teeth, with their angles alternately reversed in spaces of an inch and a quarter, more or less. The defendants insist that the second claim is merely for the reversed teeth on the edge of the cutter, and that the reversing of the teeth of the common sickle as a cutter in a reaping machine was not new with the plaintiff; and that if it was new with him, he had discovered it and used it long before his patent of 1845. The defendants claim that Moore had discovered it as early as 1837 or 1838; and it would also seem that the plaintiff had devised and used it at a very early day after his patent of 1834-that is, the mere reversing of the teeth. But, on looking into the plaintiff's patent more critically, we are inclined to think that when the plaintiff says, in his second claim, 'I claim the reversed angle of the teeth of the blade, in manner described,' he means to claim the reversing of the angles of the teeth in the manner previously described in his patent. You will recollect that it has been shown, in the course of the trial, that in the operation of the machine, the straw comes into the acute-angled spaces on each side of the spear-shaped fingers, and that the angles of the fingers operate to hold the straws, while the sickle-teeth, being reversed, cut in both directions as the blade vibrates. The reversed teeth thus enable the patentee to avail himself of the angles on both sides of the spear-shaped fingers; whereas, if the sickle-teeth were not reversed in sections, but all ran in one direction like the teeth of the common sickle, he could use the acute angles upon only one side of the fingers, because the cutter could cut only in one direction. We are therefore inclined to think that the patentee intended to claim, by his second claim, the cutter having the angles of its teeth reversed, in connection with the angles thus formed by the peculiar shape of the fingers. And, as it is not pretended that any person invented that improvement prior to the plaintiff, the point relied on in this respect by the learned counsel for the defendant fails.'

The other parts of the charge which were excepted to by the counsel for the defendants were thus specifically mentioned.

To so much of the charge of the court as instructed the jury, in substance, that the plaintiff, in his patent of January 31st, 1845, did not claim the reversed angle of the teeth of the blade as a distinct invention, but only claimed it in combination with the peculiar form of the fingers described in the same patent, the defendant's counsel excepted.

The defendant's counsel requested the court to instruct the jury, that if they should be satisfied that Hiram Moore was the first inventor of the reversed angle of the teeth of the blade, and that the plaintiff was notified of that fact by the testimony of Moore on the trial of this cause in June, 1851, and had not yet disclaimed that invention, then, in judgment of law, he has unreasonably delayed filing his disclaimer, and the verdict should be for the defendants.

The court declined so to instruct the jury, and the defendant's counsel excepted to the refusal.

The defendant's counsel further requested the court to instruct the jury, that if they should be satisfied that Hiram Moore was the first inventor of the reversed angle of the teeth of the blade, and that the plaintiff was notified of that fact by the testimony of Hiram Moore on the trial of this cause in June, 1851, and had not yet disclaimed that invention, then it was a question of fact for them to decide, whether the plaintiff had or had not unreasonably delayed the filing of a disclaimer; and, if they should come to the conclusion that there had been such unreasonable delay, their verdict should be for the defendants.

The court refused so to instruct the jury, and the defendant's counsel excepted to the refusal.

The defendant's counsel requested the court to submit to the jury the question under the evidence in the case, whether the plaintiff did or did not claim, in his patent of January 31st, 1845, the reversed angle of the teeth of the blade, independent of any combination.

The court refused to submit that question to the jury, and the defendant's counsel excepted to the refusal.

The defendant's counsel also asked the court to instruct the jury, that, from the facts that Bell's machine operated successfully in 1829, and that it operated well also in 1853, they were at liberty to infer that it had operated successfully in the intermediate period, or some part of it.

But the court held and charged, that there being no evidence respecting it, except at the trial of it in 1829, and the trial of it in 1853, the jury could not infer anything on the subject, and refused to charge as requested. The defendant's counsel excepted to the refusal, and also excepted to the charge in this respect.

Upon these exceptions, the case came up to this court, and was argued by Mr. Harding and Mr. Stanton for the plaintiffs in error, and by Mr. Dickerson and Mr. Johnson for the defendant. There was also a brief filed by Mr. Selden for the plaintiffs in error.

It is almost impossible to convey to the reader a clear idea of the argument, because models and drawings were produced in court by the counsel on both sides. The points made, however, were the following, viz:

For the plaintiff in error.

VI. The construction given in the court below, to the second claim of the patent of 1845, was erroneous.

1. The words 'in manner described,' used in the second claim, refer exclusively to the description of the construction of the sickle, given in folio 155, without reference to the peculiar shape of the fingers, or to any combination whatever. They refer to the straight blade alone, with the specified positions of its teeth.

To test this construction, suppose a prosecution under this claim, of one who used such blade as is here described, with fingers having parallel sides, forming right angles with the line of the blade-could it be said that this claim was not infringed? If it could not, there must be error in the charge on this point.

The construction given to this claim by the court would permit the free use by the public of the reversed angle of the sickle, when not combined with the spear-headed finger. Can that be reconciled with the language of the patentee, either in the description of his invention, or of the claim based upon it?

If it can, a similar construction must be given to the third claim, which is thus rendered identical with the second, as each will then cover exactly the same combination, and the spear-head finger will be given to the public, except when combined with the straight blade and reversed angle of the teeth.

We suppose the correct rule for the interpretation of patents is laid down by Mr. Curtis, in his Treatise on Patents, sec. 126. 'The nature and extent of the invention claimed by the patentee, is the thing to be ascertained; and this is to be arrived at through the fair sense of the words which he has employed to describe his invention.' But that rule, even as limited or aided by the principle referred to in section 132, viz: 'that a specification should be so construed as, consistently with the fair import of language, will make the claim co-extensive with the actual discovery,' does not relieve the plaintiff here from the distinct claim of the reversed teeth of the blade as an independent invention.

This principle was well applied in the case of Haworth v. Hardcastle, (Webster's Pat. Cases, 484, 485,) from which it was taken by Mr. Curtis. In that case it is shown, by the opinion of Chief Justice Tindal, that a forced construction of the language of the patent was required to make the claim embrace what it was alleged to embrace; but in the present case a forced construction not only of the language of the claim, but of the description of the invention, must be adopted to exclude the claim of the reversed teeth of the blade as an independent invention. Such latitude of interpretation cannot be safely allowed of a patent, or any other instrument. Neither is it necessary for the protection of the rights of the patentee. If he made 'a mistake, the patent law affords means of correcting it; but until corrected, the claim must be taken as it stands, whatever error may have led to it.' (Byam v. Farr, 1 Curtis, 263; Act of 1836, sec. 13.)

A patent for an invention is a grant from the Government, and should be construed, as we suppose, like all other grants, fairly and liberally for the accomplishment of the objects designed by it, and not otherwise. (Curtis, sec. 386.) Rights, the result of intellectual labor, are no doubt sacred; but we believe them no more sacred than those which are the result of more humble toil, and that the same liberality of interpretation should be extended to the title-deeds of both. That those rules of construction which are applied to patents for lands should be applied to patents for inventions. That the latter should no more be stretched beyond the fair import of their terms when the interest of the patentees would be promoted by their extension, or contracted in like degree when their interest would be promoted by their restriction, than should any other deeds or contracts. (Godson on Patents, 204, 205; Leroy v. Tatham, 14 How., p. 176.)

Any more loose construction would render nugatory the statute requiring 'a written description of the invention,' &c., in 'full, clear, and exact terms,' and in case of any machine, that the patentee 'shall particularly specify, and point out the part, improvement, or combination, which he claims as his own invention or discovery.' (Act of 1836, sec. 6.)

And it would render entirely useless the provision in section 13 of the same act, providing for the amendment of defective specifications.

The reason usually given for requiring a more liberal construction of patents, than of other instruments, is, that there is a great difficulty in giving exact descriptions of inventions. Conceding the fact to be so, it may be a sufficient answer to say, that the statute requires an exact description as a condition of the grant. But, aside from the statute, it should be borne in mind, that every mechanic in the land is bound, at his peril, to decide correctly, from the specification, what every patent, touching his business, covers; and the question is, if the subject be difficult, where should the responsibility of its solution rest upon him who makes the description of his own work, for his own interest, and with all the aids to be derived from the Patent Office, and, if he chooses, from patent agents, and men of science skilled in such matters, or from the mechanic pretending to no particular knowledge on the subject, having no interest, and often deprived of all extraordinary aids? We think that both reason and the statute demand of him, who claims the exclusive right, to define clearly the limits of his invention. It can in no case be difficult for an inventor to say, distinctly, whether he claims two or more elements singly, or merely in combination. (Evans v. Hettick, 3 Wash., p. 408; S.C.., 1 Robb, 166.)

2. The point was material.

Hiram Moore used such a sickle as early as 1836, if not in 1834, and this was proved on the first trial of this case, as long ago as June, 1851. Notice of this invention by Moore was given to the plaintiff as early as September, 1850. The sickle, as used by Moore in 1836, was also described by witnesses examined in October, 1851, and cross-examined by plaintiff's counsel in this cause.

The plaintiff in his history of his invention, sworn to January 1, 1848, presented to the Commissioner of Patents, for the purpose of obtaining an extension of his first patent, shows, as we think, that he did not use the blade with reversed teeth until the harvest of 1841.

Under these circumstances, we insist that the plaintiff was called upon, during the three years that intervened between the trial in June, 1851, and that in October, 1854, to disclaim the invention of the reversed angle of the teeth of the blade.

It was therefore a question for the jury, under section 9 of the act of March 3d, 1837, (Curtis pp. 489, 490,) whether the plaintiff had not unreasonably neglected or delayed to enter at the Patent Office his disclaimer.

To allow a patentee, under such circumstances, to designedly delay a disclaimer, would defeat the manifest object of the last proviso to section 9 above referred to, which was to compel a patentee who had inadvertently covered by his patent something to which he was not entitled, and thus wrongfully obstructed its free use, to remove the obstruction as soon as possible after the discovery of his mistake.

XI. The request of instructions to the jury, 'that from the facts that Bell's machine operated successfully in 1829, and that it operated well also in 1853, they were at liberty to infer that it had operated successfully in the intermediate period, or some part of it,' should have been given; and the actual charge, 'that there being no evidence respecting it, except the trial of it in 1829, and the trial of it in 1853, the jury could not infer anything on the subject,' was erroneous.

What the evidence was, of the use of Bell's machine, will be found in Loudon's Encyclopaedia of Agriculture, pp. 442 to 427, and from the testimony of Obed Hussey.

We think that on this evidence, (that the machine used in England was that described by Loudon,) it was proper to submit to the jury the question as to its operation, and not to place it under the ban as an entire failure, which seems to be the effect of the charge, as it was given.

If it operated well in 1829 and in 1853, which is clearly proved, and is assumed by the judge, it must certainly have been capable of operating well at any intermediate time. Whether actually used or not, is wholly immaterial.

And if the machine as a whole operated well, then the divider, reel, and reel-bearer, each, operated well, and the reel was supported by a practically successful contrivance, which formed no impediment in the way of the divider, or of the division and separation of the grain, and on which no straws could clog, as the entire space beneath the reel-shaft is, in this machine, left unobstructed by the reel-bearer, which is horizontal some feet above the platform, and completely out of the reach of the grain. There is no difference between the reel-bearer in the machine of the plaintiffs in error and that in Bell's machine. Waters, (McCormick's witness,) on being shown the drawing of Bell's machine, in Loudon's Encyclopaedia of Agriculture, says: 'As a mere manner of supporting the reel, I see no difference between the method of supporting the reel in this and the defendant's machine.'

This prior invention of Bell's, if the court had not substantially excluded it from the consideration of the jury, would have furnished a complete answer to the charge of infringement of the fifth claim of McCormick's patent of 1845. (Evans v. Hettick, 3 Wash., p. 408; S.C.., 1 Robb, p. 166.)

XII. It was erroneous to grant costs to the plaintiff, inasmuch as it appeared that he was not the first inventor of the reversed angle of the sickle, and had not filed a disclaimer prior to the commencement of the suit. (Act of 1837, sec. 9.)

The testimony showed conclusively that Moore was the first inventor of the reversed angle of the teeth.

Thirteenth Exception.-The description annexed to the letters patent of plaintiff describes a sickle with reversed-cut teeth, and then describes the manner in which this reversed-cut sickle operates in connection with the spear-headed fingers, 'forming an acute angle between the edge of the blade and the shoulder of the spear, by which the grain is prevented from yielding to the touch of the blade.' The specification then claims 'the reversed angle of the teeth of the blade in manner described.'

1. It also appeared, that ever since the date of the first reaping patent in 1834, the plaintiff had experimented with this reversed sickle edge without producing any successful result, until he combined it in the manner described in the patent of 1845.

2. The sickle, separate and apart from the machine, is no invention, in whatever way the teeth are cut, but when combined in the machine in the manner described, the reversed cut becomes a very valuable invention, enabling the sickle to cut itself clear each stroke; whereas, if the sickle were cut only one way, and the fingers were straight, it would only operate on the grain half the time.

3. This part of the invention was not infringed.

Fourteenth Exception.-Unreasonable neglect to file a disclaimer under the ninth section of the act of 1837, is a question of fact for the jury.

Fifteenth Exception.-There was no evidence that Moore had ever constructed a reversed-cut sickle in the manner described in the patent of plaintiff, nor that he had ever made one in any manner which was successful-the only claim being, that in 1836-'37 he had made a reversed-cut sickle, and, had never seen one before, while the plaintiff had done the same thing in 1834. There was therefore no fact for the jury to find, and it would have been erroneous if the court had submitted an hypothesis unsupported by evidence for their decision.

The construction of the claim also settled this point, because there was a pretence that such a manner of applying the reversed-cut sickle was old.

Twentieth Exception.-The facts stated in this exception, that Bell's machine operated successfully in 1829 and in 1853, are not evidence from which the jury could legally infer that it had operated successfully in the intermediate period, or any part, for there is no rule which raises a presumption of successful operation out of the facts assumed in the prayer, but rather the contrary, since, if it ever did succeed at all, it most probably never would have been abandoned, and then its continued use to a more recent date would have been quite as easily proved as its use at any prior date.

Mr. Justice NELSON delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the northern district of New York.

The suit was brought by McCormick against Seymour and Morgan, for the infringement of a patent for improvements in a reaping machine granted to the plaintiff on the 31st June, 1845. The improvements claimed to be infringed were-1st, a contrivance or combination of certain parts of the machinery described, for dividing the cut from the uncut grain; and 2d, the arrangement of the reel-post in the manner described, so as to support the reel without interfering with the cutting instrument.

In the course of the trial, a question arose upon the true construction of the second claim in the patent, which is as follows: 'I claim the reversed angle of the teeth of the blade in manner described.' This claim was not one of the issues in controversy, as no allegation of infringement was set forth in the declaration. But it was insisted, on the part of the defendants, that the claim or improvement was not new, but had before been discovered and in public use, and that, under the ninth section of the act of Congress passed March 3, 1837, the plaintiff was not entitled to recover cost, for want of a disclaimer of the claim before suit brought; and that, if he had unreasonably neglected or delayed making the disclaimer, he was not entitled to recover at all in the case.

The ground upon which the defendants insisted this claim was not new, was, that it claimed simply the reversed angle of the teeth of the blade or cutters. The court below were of opinion, that, reading the claim with reference to the specification in which the instrument was described, it was intended to claim the reversed angle of the teeth in connection with the spear-shaped fingers arranged for the purpose of securing the grain in the operation of the cutting-the novelty of which was not denied.

The majority of the court are of opinion, that this construction of the claim cannot be maintained, and that it is simply for the reversed angle of the cutters; and that there is error, therefore, in the judgment, in allowing the plaintiff costs.

In respect to the question of unreasonable delay in making the disclaimer, as going to the whole cause of action, the court are of opinion that the granting of the patent for this improvement, together with the opinion of the court below maintaining its validity, repel any inference of unreasonable delay in correcting the claim; and that, under the circumstances, the question is one of law. This was decided in the case of the Telegraph, (15 How., 121.) The chief justice, in delivering the opinion of the court, observed that 'the delay in entering it (the disclaimer) is not unreasonable, for the objectionable claim was sanctioned by the head of the office; it has been held to be valid by a circuit court, and differences of opinion in relation to it are found to exist among the justices of this court. Under such circumstances, the patentee had a right to insist upon it, and not disclaim it until the highest court to which it could be carried had pronounced its judgment.'

Several other questions were raised in the case, which have been attentively considered by the court, and have been overruled, but which it cannot be important to notice at large, with one exception, which bears upon the fifteenth section of the patent act of 1836.

Bell's reaping machine was given in evidence, in pursuance of a notice under this section, with a view to disprove the novelty of one of the plaintiff's improvements; a description of it was read from 'Loudon's Encyclopaedia of Agriculture,' published in London, England, in 1831. In addition to the description of the machine, it appeared in the work that the reaper had been partially successful in September, 1828, and 1829.

It also appeared, from the evidence of Mr. Hussey, that he saw it in successful operation in the harvest of 1853.

The court was requested, on the trial, to instruct the jury, that from the facts that Bell's machine operated successfully in 1829 and in 1853, they were at liberty to infer that it had operated successfully in the intermediate period, which was refused. Without stating other grounds to justify the ruling, it is sufficient to say, that the only authority for admitting the book in evidence, is the fifteenth section of the act above mentioned. That section provides, that the defendant may plead the general issue, and give notice in writing, among other things, to defeat the patent, 'that it (the improvement) had been described in some public work anterior to the supposed discovery thereof by the patentee.' The work is no evidence of the facts relied on for the purpose of laying a foundation for the inference of the jury, sought be obtained.

The judgment of the court below is affirmed, with the qualification, that on the case being remitted to the court below, the taxation of costs be stricken from the record.

Mr. Justice GRIER dissented.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the northern district of New York, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause, excepting that part embracing the taxation of costs in the Circuit Court, be and the same is hereby affirmed with costs. And it is further ordered and adjudged by this court, that this cause be and the same is hereby remanded to the said Circuit Court, with directions to strike from the record the taxation of costs in this cause.


text: Talk:Seymour v. McCormick (60 U.S. 96)/Opinion of the Court


text:
Rogers v. Steamer St. Charles

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 under the circumstances stated in the opinion of the court.

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

Mr. Benjamin made the following points:

I. The undisputed facts are as follows: The Ella was at anchor; the night was dark and rainy; the hour of the collision was about half-past eleven, P. M.; the St. Charles was running at a speed of eight or nine miles an hour, at least; the collision occurred by the steamer's running at that rate of speed against a vessel at anchor in a dark night.

II. We allege that the Ella was anchored in a proper place, and out of the track usually pursued by steamers from New Orleans to Mobile or Pensacola.

III. The Ella had her light out in the customary manner. This is proven by a number of witness, and their testimony is not to be overthrown by the oath of witnesses on the steamer, that they did not see it.

IV. It was extreme imprudence in the St. Charles to run at her rate of speed in a dark night, in waters crowded with small vessels in a place where they usually anchor. The speed is stated by the witnesses at ten or eleven knots an hour, eight or nine knots, and ten knots. Yet this speed was not checked, although several vessels were confessedly anchored together where the Ella was, all with lights displayed.

The points taken in Mr. Nelson's brief were the following, viz:

By referring to the report of the commissioner and the decree of the District Court, it will be perceived that the claim of Brooks & Randolph is for the sum of eight hundred and thirty-five dollars and five cents, and that of John Hurley & Co. thirteen hundred and sixty-eight dollars and ninety-eight cents, sums insufficient to sustain the jurisdiction of this court, and that this appeal, as far as concerns them, must be dismissed. 6 Peters, 143; Oliver v. Alexander, &c.

With regard to the remaining libellants, the appellees will maintain that, upon the evidence, it is clear that the collision complained of was in no wise attributable to the fault or negligence of those navigating the steamer, but was the result of a want of care on the part of the schooner, and that the decree of the Circuit Court ought to be affirmed.

Mr. Justice NELSON delivered the opinion of the court.

title: Rogers v. Steamer St. Charles


text: Talk:Rogers v. Steamer St. Charles

title: Talk:Rogers v. Steamer St. Charles