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Wiggins v. Gray/Opinion of the Court

This case comes before the court upon a certificate of division of opinion between the judges of the Circuit Court for the district of California, sitting as a court of equity.

In stating the facts upon which the question certified arose, the court gives a history of the case, and it appears that a bill was filed in a State court of California, and was afterwards removed to the District Court of the United States, by order of the court, pursuant to an agreement made by the counsel for the respective parties; that before it was transferred from the State court, one of the complainants and one of the defendants died; and the representatives of neither of them were afterwards made parties, either in the State court before the removal, or the District Court of the United States, after the case was transferred to that court. And in this condition of the case, and without these parties, a final decree was rendered in the last-mentioned court. These proceedings were transferred to the Circuit Court of the United States, under the act of Congress of April 30, 1856; and a bill was afterwards filed in that court to set aside and vacate the final decree which had been rendered as above mentioned; but in that proceeding the Circuit Court held that it had not jurisdiction, because the parties made defendants resided in New York, where the process of the court could not lawfully be served upon them. The dates of these several proceedings in the different courts, and the motions and agreements of counsel, are particularly set forth in the statement; but they are not material to the decision of this court, and need not, therefore, be repeated here.

The Circuit Court further certify, that after all of these proceedings were had, and the bill filed against the citizens of New York dismissed, a motion was made 'to vacate the final decree rendered, and to remand the case to the State court, in which it originated; and that the motion was predicated on the ground that the whole proceedings, from the time the case was transferred thence, including the decree, were null and void, and not merely voidable, and therefore might be set aside on motion.'

Upon this motion the judges divided in opinion, as they certify, upon the following question: 'whether, under the circumstances detailed, this court (the Circuit Court) has authority to vacate summarily, on motion, the decree of the District Court of the United States for the northern district of California, and remand the case to the third judicial district of the State.'

It will be observed, that the grounds upon which the decree of the District Court is alleged to be void, or voidable, are not stated, nor the questions which arose in the State court, or the courts of the United States; nor does it appear what errors are supposed to have been committed, which it is proposed to bring for revision before the Circuit Court, and to correct by a summary proceeding on this motion.

The only question certified by the Circuit Court is, whether, under the circumstances of the case as detailed in the statement, it could proceed summarily on motion to vacate and declare void the decree. The inquiry obviously relates altogether to the practice of the court as a court of equity. And this question often depends upon the sound judicial discretion of the court, regulated by the rules prescribed by this court, and the general principles and established usages which govern proceedings in a court of chancery; and whether it will proceed in a summary manner on motion, or require plenary proceedings by bill and answer, must depend upon the particular circumstances of the case before it, and the object sought to be attained.

The act of 1802, chap. 32, which authorizes the certificate of division, evidently did not intend to give this court jurisdiction, in that mode of proceeding, upon any question of common law or equity, that would not be open to revision here upon writ of error or appeal. It was so decided in Davis v. Braden, 10 Pet., 288, and in Parker v. Nexon, 10 Pet., 410. And it has repeatedly been held that the decision of the inferior court, upon a question depending upon the exercise of a sound judicial discretion in a matter of practice as to the mere form of proceeding, is not open to revision in this court.

If the judges had united in refusing the summary proceedings on motion, it is very clear that the decision could not have been revised in this court upon appeal, although this tribunal might be of opinion that the relief sought might have been legitimately granted in that mode of proceeding; for this discretion in a matter of practice resting exclusively with the inferior court, it has the right to determine for itself whether it will proceed in a summary way, or refuse to do so whenever it thinks the purposes of justice will be better accomplished in a plenary proceeding by bill and answer; and consequently no appeal will lie from its decision, made in the exercise of this discretionary power. In the case before us, by the division of opinion between the judges, the motion was us legally and effectually refused as if both had concurred in the refusal. And as the decision in the latter case could not have been reviewed here upon appeal, for want of appellate jurisdiction over such questions, we should hardly be justified in assuming jurisdiction, and exercising appellate powers over the same questions when they come before us on a certificate of division.

Besides, the act of 1802 obviously contemplates a suit in court, in which plaintiff and defendant have both appeared, for it directs the point to be certified at the request of either party. But here there is no party but the one in whose behalf the motion is made. No defendant is named, and no process prayed for. And if, in this stage of the case, the legality of this proceeding can be certified to this court for its opinion, the same thing may be done at the commencement of any other equity proceeding, and this court called on to decide in advance, before any process is issued or any party brought into court, whether a motion, or an original bill, or any other of the many description of bills known in equity practice, was the proper and appropriate remedy in the case which a party was about to bring before the Circuit Court. No one will suppose that such a practice was intended to be established by the act of 1802.

The court order and adjudge that this opinion be certified to the Circuit Court, and that the cause be remanded.

title: Wiggins v. Gray/Opinion of the Court


text: Talk:Wiggins v. Gray/Opinion of the Court

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Union Steamship Company of Philadelphia v. New York and Virginia Steamship Company

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

It was a case of collision which occurred between the steamship Jamestown and the steamship Pennsylvania, the libel being filed by the owners of the former. The collision took place some few miles below the port of Norfolk, in Virginia, under circumstances which are freely stated in the opinion of the court.

The District Court decreed in favor of the libellants, and assessed the damages at $1,893.08, with interest from 1st of February, 1855, till paid, and the Circuit Court affirmed the decree.

Upon an appeal to this court it was submitted on printed argument by Mr. Kane for the appellants, and argued by Mr. Watson for the appellees.

Mr. Kane contended that the evidence justified the conclusion that the collision was the result of inevitable accident, arising from the intense fog which had settled upon the Elizabeth river, which position was denied by Mr. Watson. The arguments could not be explained without a reference to the testimony, which was quite voluminous.

Mr. Justice CLIFFORD delivered the opinion of the court.


text: Talk:Union Steamship Company of Philadelphia v. New York and Virginia Steamship Company


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Union Steamship Company of Philadelphia v. New York and Virginia Steamship Company/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the eastern district of Virginia, sitting in admiralty. The libel was filed in the District Court, by the appellees, on the thirteenth day of June, 1855. It was a proceeding in rem against the steamship Pennsylvania, and was instituted to recover compensation for certain damage done to the steamship Jamestown, by means of a collision which occurred between those steamers in Elizabeth river, on the night of the seventh of January, 1855, some five or six miles below the port of Norfolk, in the State of Virginia. At the time of the collision, the Jamestown was on her regular weekly trip from the port of Norfolk to Richmond, in the same State, and the Pennsylvania was proceeding up the river to Norfolk, in the prosecution of her regular semi-monthly trip from Philadelphia to her place of destination. Libellants allege that the Jamestown was pursuing her usual and proper course down the river, and that the collision occurred in consequence of the improper and unskillful management of those in charge of the other steamer. Process was duly served, and the respondents appeared and answered to the suit. They admitted the collision, but alleged, in effect, that it occurred in consequence of the intense darkness of the night, occasioned by a dense fog, without any such negligence or fault as is alleged in the libel, and in spite of every possible precaution on the part of those in charge of their steamer to prevent it. A decree was entered for the libellants in the District Court, which was affirmed, on appeal, in the Circuit Court, and thereupon the respondents appealed to this court. It is now conceded by the respondents that the collision was not occasioned by any fault on the part of those in charge of the injured vessel, but it is insisted in their behalf that the colliding steamer was also without fault, and that the collision was the result of inevitable accident. To establish that defence, they rely entirely upon the character of the night, as shown by the evidence, and the circumstances attending the disaster. From the evidence, it appears that the Jamestown left the wharf at Norfolk on the seventh of January, 1855, about eleven or half past eleven o'clock at night, as alleged in the libel. When she started there was a thick fog in the harbor, but she met with no difficulty in passing out, and it so far cleared away in about half an hour that those in charge of her deck, as she proceeded down the river, could see the lights and even the hulls of vessels ahead, and the land on the eastern shore. Several witnesses also testify that the moon had risen, and that stars were occasionally visible, though they admit that it was still quite foggy, and that there was a heavy mist on the water. Two competent look-outs were accordingly stationed at the usual place in the forecastle, and the signal-lights of the steamer were properly displayed. Those precautions had been taken at the time the steamer left the wharf, but about the time she passed the naval hospital, the master, as he had been accustomed to do on similar occasions, left the quarter-deck, and took a position in the rigging of the steamer, some ten feet above the hurricane-deck. Leaving the look-outs properly stationed in the forecastle to perform their usual duties, he doubtless chose that more elevated situation to get a less obstructed view of distant objects, and he testifies that he could then see a mile and a half ahead, and the evidence furnishes no good reason to doubt the truth of his statement.

Intending to take the eastern side of the channel, another precaution also became necessary, so as not to incur the hazard of running the steamer aground; and to guard against any such danger, he directed the mate to heave the lead at short intervals, and to report to him the soundings; and the order was faithfully obeyed. Having taken these precautions, he continued to prosecute the voyage at a moderate rate of speed, sometimes stopping the engine when the fog shut in, and occasionally ringing the bell and sounding the whistle; and the steamer, pursuing her regular course, rounded Lambert's point in perfect safety, passing so near to the buoy located there that it was seen by the master from his position in the rigging, and particularly noticed. On arriving there, it was necessary to change the course of the steamer; and inasmuch as he had noticed the buoy, he was enabled to perform that duty without danger of mistake. Orders were accordingly given to the wheelsman to set the course north one-fourth east, and to run by the compass. During all this time the master remained in the rigging, and he testifies that after the steamer rounded the point, he could see from the buoy to Craney Island light-ship, which, according to his estimate, is a mile and a half. Presently, however, as the steamer advanced, he saw another light, on the larboard bow of the steamer, and finding upon inquiry that the wheelsman had not seen it, he called his attention to the fact that there were two lights, expressing the opinion, at the same time, that the one last discovered was the light of the Pennsylvania coming up the river. His own steamer at that time was heading north, half east, and he directed the wheelsman to port the helm, so as to keep both lights well on the larboard bow, which had the effect gradually to sheer the steamer still closer to the eastern side of the channel. She had previously been running in about four fathoms of water, but the mate soon reported that the soundings showed only three, and as she advanced, he informed the master that there was but two and a half fathoms, and cautioned him that there was danger of running aground. At this time the master saw the signal-lights and hull of the Pennsylvania, as she passed the light-ship, on the western side of the channel. Immediate orders were then given to ring the bell and sound the whistle, and the master testifies that the signals were answered from the approaching steamer. Shortly afterwards, the mate reported that the soundings showed but ten feet of water, and immediately upon receiving that information he gave the necessary orders to stop the machinery, and reverse the engine. Both orders were promptly obeyed, and it was then the master first discovered that the approaching steamer had altered her course, and was heading diagonally across the channel towards the Jamestown. They were then less than a quarter of a mile apart, and seeing that a collision was almost inevitable, be instantly directed the alarm-bell to be rung, and the whistle of the steamer to be sounded; and as there was nothing more that he could do to avoid the danger, he gave warning to the men in the forecastle, and left the rigging, and returned to the quarter-deck. Further reference to the circumstances preceding the collision, so far as respects the injured steamer, is unnecessary at this stage of the investigation. According to the evidence, it seems that the Pennsylvania arrived off Cape Henry at an early hour in the evening of the day of the collision, but in consequence of the fog and the difficulties of the navigation she did not enter the river till after eleven o'clock at night. She proceeded up the river at the rate of about six miles an hour, and the mate, who was the acting pilot after she entered the river, and had charge of her deck, admits that she ran very close to the before-mentioned light-ship, and that her course at that time was south, half east, and it is not possible to doubt that if she had continued on that course a short time longer, all danger would have been avoided. Such, however, was not the fact, as is clearly shown by the pilot himself, and we refer to his testimony in preference to that of the master, because the latter remained in the saloon until just before the collision occurred. Among other things, the pilot admits, that shortly after his steamer passed the light-ship, he gave the order to starboard the helm; and what seems even more remarkable, in cases of this description, he acknowledges that he gave the order after he knew that another steamer was approaching, though he denies that he had seen her lights. His theory is, and he accordingly testifies, that he first gave the order to stop and back; and inasmuch as that order had been executed, and the steamer had actually commenced to back, that putting the helm a-starboard had the same effect as porting the helm would have produced if the steamer had been going ahead. But it is a sufficient answer to that theory, as applied to this case, to say that the evidence shows beyond the reach of doubt that the steamer was still advancing at the rate, at least, of three or four miles an hour, so that, upon his own theory, he committed an error, and according to his own testimony he committed it with a knowledge of the approaching danger. Three or four witnesses, including the master of the colliding steamer, testify that she was advancing three or four miles an hour when the collision occurred, and the damage done to the injured steamer proves to a demonstration that her headway must have been very considerable. On the contrary, the injured steamer had nearly stopped, and being already as close to the eastern side of the channel as the means of navigation would allow, she was almost as powerless to prevent the collision as if she had been lashed to the wharf from which she started. It was under these circumstances that the two steamers came together, and the evidence shows that the colliding steamer struck the other on the port-bow near the forward gangway, some thirty or forty feet abaft the stem. As described by the witnesses, it was a full blow at right angles, and had the effect to force the stem of the colliding steamer some six feet into the hull of the other, tearing up the deck of the forecastle a third part of the way across the vessel, and breaking into two pieces six or eight of the largest timbers. Looking at the whole circumstances of the collision, it is vain for the respondents to suppose that this court can hold that it was the result of inevitable accident. Where the collision occurs exclusively from natural causes, and without any negligence or fault either on the part of the owners of the respective vessels, or of those intrusted with their control and management, the rule of law is, that the loss must rest where it fell, on the principle that no one is responsible for such an accident, if it was produced by causes over which human agency could exercise no control. Stainback et al. v. Rae et al., 14 How., 533; 1 Pars. M. L., 187. But that rule can have no application whatever to a case where negligence or fault is shown to have been committed on either side; for if the fault was one committed by the libellant alone, proof of that fact is of itself a sufficient defence; or if the respendent alone committed the fault, then the libellant is entitled to recover; and clearly, if both were in fault, then the damages must be equally apportioned between them. Plainly, therefore, it is only when the disaster happens from natural causes, and without negligence or fault on either side, that the defence set up in this case, can be admitted. Inevitable accident, as applied to cases of this description, must be understood to mean 'a collision which occurs when both parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident. The Locklibo, 3 W. Rob., 318. The John Frazer, 21 How., 184. It is not inevitable accident, as was well remarked by the learned judge in the case of the Juliet Erskine, 6 Notes of Cases, 634, where a master proceeds carelessly on his voyage, and afterwards circumstances arise, when it is too late for him to do what is fit and proper to be done.' He must show that he acted seasonably, and that he 'did everything which an experienced mariner could do, adopting ordinary caution,' and that the collision ensued in spite of such exertions. The Rose, 7 Jur., 381. Unless the rule were so, it would follow that the master might neglect the special precautions which are often necessary in a dark night, and when a collision had occurred in consequence of such neglect, he might successfully defend himself upon the ground that the disaster had happened from the character of the night, and not from any want of exertion on his part to prevent it. The Batavier, 40 Eng. L. and Eq., p. 25. The Europa, 2 Eng. L. and Eq., 564. The Mellona, 5 Notes of Cases, 558. Applying these principles to the present case, it is obvious that the defence set up by the respondents cannot be sustained. They not only fail to show that the steamer was without fault, but the testimony of those in charge of her incontestably proves that they were guilty of negligence in more than one particular. Both steamers were in the prosecution of their regular and stated trips, and of course those in charge of them knew, or ought to have known, that they were liable to meet each other on the route; and if it was so dark that the lights of an approaching steamer could not be seen, it was negligence in the master, while his steamer was proceeding at the rate of six miles an hour, to remain in the saloon, wholly inattentive to the peculiar dangers incident to the character of the night; and if it was not unusually dark, then it is clear that there was gross negligence on the part of those in charge of the deck. It is shown by the evidence, that the colliding steamer had two look-outs; but it is not shown what, if any, duty they performed in the emergency, or that any inquiries were made of them, either when the course of the steamer was changed near the light-ship, or when the pilot heard the noise made by the wheels of the approaching steamer. But the great fault committed on the occasion was that of putting the helm to starboard, instead of keeping the course or porting it when it became known that the other steamer was approaching; and the excuse given for it by the pilot, that he supposed his own steamer was backing, only adds to the magnitude of the error, as it shows that the order was given without knowing what its effect would be, which could only have happened from indifference or inattention to duty.

For these reasons, we are of the opinion that the decision of the Circuit Court was correct, and the decree is accordingly affirmed, with costs.


text: Talk:Union Steamship Company of Philadelphia v. New York and Virginia Steamship Company/Opinion of the Court


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Martin v. Thomas

THIS case was brought up by writ of error from the District Court of the United States for the district of Wisconsin.

The facts of the case are stated in the opinion of the court.

It was argued by Mr. Doolittle and Mr. Ewing for the plaintiffs in error, and by Mr. Reverdy Johnson, upon a brief filed by himself and Mr. Hipkins, for the defendants.

The counsel for the plaintiffs in error made the following points:

I. The bond upon which judgment was recovered was invalid as against the defendants, because after the same was executed by them as sureties, Remington, their principal, without their knowledge or consent, and with the consent of the marshal, erased his name from the bond.

Hunt's Adm. v. Adams, 6 Mass., 521.

Speake et al. v. U.S., 9 Cranch, 35.

Miller v. Stewart, 9 Wheaton, 702, 703.

II. After the execution of the bond by the defendants to be delivered to the marshal, it was refused and disagreed to by him, and it thereby became void. Any subsequent alteration would create a new deed requiring a new execution, or positive assent to the same, to give it validity against the defendants.

O'Neale v. Long, 4 Cranch, 60, 62.

See Sheppard's Touchstone, 70, 394, as to the effect of disagreement.

III. There was no breach of the condition of the bond.

The obligors undertook to deliver the property in question to the marshal, if such delivery were adjudged, and to pay him such sum as might for any cause be recovered against the defendants, Henry W. Remington and John T. Martin, jun.

The return of the property was not adjudged, and there was no recovery of any sum of money against the defendants. The recovery was against one only.

See Miller v. Stewart, 9 Wheaton, 702, 703, and the cases cited.

The counsel for the defendants in error maintained that the alterations of the bond were immaterial, and cited:

15 John., 293; 1 Wend., 659; 10 Conn., 192.

18 Pick., 172; 5 Mass., 538; 2 Barb. Ch'y R., 119.

16 N. Y. Rep., 439; 3 Comsk. R., 188.

1 Greenleaf, (Maine Rep.,) Hale v. Russ.

1 Coke's Rep., 60.

Mr. Justice McLEAN delivered the opinion of the court.

title: Martin v. Thomas


text: Talk:Martin v. Thomas

title: Talk:Martin v. Thomas


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Martin v. Thomas/Opinion of the Court

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

The action was replevin; the pleadings being filed, a jury was called, who rendered a verdict in damages for nine thousand seven hundred and eighty dollars and ninety-six cents, with costs.

In the course of the trial a bill of exceptions was filed, on which the questions of law were raised. Be it remembered, that at the trial of the above-entitled action, the plaintiff produced an instrument in writing in the words and figures, and with interlineations and erasures following, to wit:

Know all men by these presents, that we and John T. Martin, and John Keefe, and Andrew Proudfit, are held and firmly bound unto Major J. Thomas, marshal of the United States for the Wisconsin district, in the sum of twenty thousand dollars, to be paid, &c.

Whereas the defendants have required the return of property replevied by the marshal, at the suit of George T. Rogers against Henry M. Remington and John T. Martin, Jun.; now, the condition of this obligation is such, that if the said defendants in said suit shall deliver to the marshal said property, if such delivery be adjudged, and shall pay to him such sum as may for any cause be recovered against the defendants, then this obligation to be void.

The bond upon which judgment was recovered was void, as against the defendants, because, after the same was executed by them as sureties, Remington, their principal, without their knowledge or consent, and with the consent of the marshal, erased his name from the bond.

In Miller v. Stuart, 9 Wheat., 702, Mr. Justice Story said, nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended, by implication, beyond the terms of his contract. To the extent, and in the manner, and under the circumstances, pointed out in the obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may be for his benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and an alteration of it is made, it is fatal.

Hunt's Adm. v. Adams, 6 Mass., 521.

2. After the execution of the bond by the defendants, to be delivered to the marshal, it was refused and disagreed to by him, and it thereby became void. Any subsequent alteration would require a new deed or positive assent to the same, to make it valid against the defendants.

Sheppard's Touchstone, 70, 394.

The judgment is reversed.

title: Martin v. Thomas/Opinion of the Court


text: Talk:Martin v. Thomas/Opinion of the Court


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Mayer v. Pinkney

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

It was a branch of the cases relating to the shares of the Mexican Company of Baltimore, so often reported in the preceding volumes of Howard, and which are referred to in the opinion of the court. The opinion contains, also, a statement of the facts in the present case.

The bill was originally filed in the Circuit Court for Baltimore county (State court) by Charles F. Mayer and John Barney, trustees of John Gooding, under his insolvency in 1829, against John Gooding, jun., Charles Oliver, and Robert M. Gibbes. It was removed into the Circuit Court of the United States, upon the application of John Gooding, junior, who alleged that he was a citizen of Virginia. An answer was filed by Gooding, who afterwards died, and White became administrator de bonis non of the first John Gooding. A bill of revision was filed, and other proceedings took place, amongst which was a suggestion of the death of John Barney, so that Mayer became the surviving trustee. Gibbes and Oliver answered, and in May, 1858, Judge Giles, then holdings a Circuit Court, dismissed the bill; from which order Mayer appealed to this court.

It was argued by Mr. Mayer and Mr. Reverdy Johnson for the appellant, and submitted on printed argument by Mr. Dulany and Mr. Campbell for the appellees.

It is proper to mention that when the mandate of this court, in the case of Gooding, 17th Howard, 274, went down, the executors of Oliver paid into court the money and stocks sued for; and afterwards, in pursuance of an order of the court, passed on the 28th June, 1858, (after the dismissal of the bill, as above mentioned,) the same stocks and money were paid out of court to White. It was agreed by the counsel that the claim of Mayer was exclusively against White as administrator.

Mr. Justice NELSON delivered the opinion of the court.

title: Mayer v. Pinkney


text: Talk:Mayer v. Pinkney

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Mayer v. Pinkney/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the district of Maryland.

The bill was filed in the court below by Charles F. Mayer, the surviving trustee of John Gooding, appointed under certain proceedings instituted by Gooding before the commissioners of insolvent debtors for the city and county of Baltimore, for the benefit of the insolvent laws of Maryland, in October, 1829. Gooding was an original owner of a share in what is known as the Baltimore Mexican Company, which, in 1816, furnished General Mina with the means to fit out a warlike expedition against Mexico, then a province of Spain. The expedition failed, and Mina perished with it soon after he landed. Mexico having subsequently achieved her independence, the company made application to the new Government to assume the debt, which it did, by a decree of the 28th June, 1824; but payment was delayed, from time to time, until this, with other claims against the Government, were adjusted and discharged, under the convention between this Government and Mexico, of April, 1839. The share of Gooding, which was one-ninth of the interest in the contract of Mina, amounted, at the time of its allowance by the commissioners under this convention, to the sum of $39,381.82. The complainant claims this amount, with interest, under the insolvent assignment made by Gooding for the benefit of all his creditors, as already stated, under the insolvent laws of Maryland, in 1829.

The defendant, White, the administrator de bonis non of Gooding, sets up a title to the fund as the personal representative of the estate, and claims it as part of the assets which belong to the heirs and distributees.

The history of the litigation among the several claimants to the money, arwarded to the Baltimore Company by the commissioners, under the convention with Mexico, (amounting to the sum of $354,436.42,) of which the fund in controversy is a part, will be found in the 11th How., 529; 12 Ib., 111; 14 Ib., 610; 17 Ib., 234; and 20 Ib., 535.

In the case of John Gooding, administrator de bonis non of John Gooding, deceased, v. Charles Oliver and others, executors of Robert Oliver, (17 How., 274,) the present fund was in controversy between the administrator of the estate, claiming it as assets, and the representatives of Robert Oliver, claiming it by virtue of a purchase from an insolvent trustee, under proceedings instituted by Gooding for the benefit of the insolvent act of Maryland in 1819. As between these parties the court held, that the administrator was entitled to the fund as assets of the estate. The reasons for this decree will be found in the report of the case referred to.

Gooding, as has been already stated, again took the benefit of the insolvent act in 1829, and the question now is between the trustee appointed under these insolvent proceedings, as assignee of his estate for the benefit of creditors, and the present administrator de bonis, non, the personal representative.

The executors of Oliver, who claimed under the trustee in the first insolvent proceedings in 1819, failed to hold the fund against the personal representative in the case referred to, upon the ground the courts of Maryland had decided that the contract of the Baltimore Company with General Mina, which had been made in violation of our neutrality laws, was so fraught with illegality and turpitude, and so utterly null and void, that no claim to, or interest in it, passed under their insolvent laws to the trustee; and such being the construction of a statute of Maryland by her own courts, this court, according to the established course of decision, felt bound by it, and consequently the insolvent trustee took no interest in the Mina contract, nor Robert Oliver, or his personal representatives, who claimed under him.

The case now comes before us between the trustee in the insolvent proceedings of 1829, under the assignment for the benefit of creditors, and the present personal representative of the estate of Gooding, the former in the mean time having died; and the principal question is, whether or not this trustee took the interest of the insolvent in the Baltimore Company in 1829, by virtue of these proceedings. If the interest is to be regarded in the same condition as it stood, according to the judgment of the Maryland courts, at the time of the former insolvent proceedings, our conclusion must be the same as in the case of Gooding, administrator, v. the Executors of Oliver. The personal representative would be entitled to the fund.

It is insisted, however, by the learned counsel, on behalf of the trustee, that the state and condition of this interest had in the mean time changed, and had become and admitted legitimate demand or debt against the Mexican Government, wholly exempt from any taint of illegality or turpitude, and hence to be regarded as property of the insolvent, to be devoted to the benefit of his creditors.

This interest or demand, as it stood in 1819, at the time of the first insolvent assignment, as we have seen, arose out of a contract betweeen the Baltimore Company and General Mina, which, as admitted, was illegal, being in violation of our neutrality laws. Whether that constituted a valid objection to the assignment under the insolvent laws of Maryland, for the benefit of creditors, is not a question now before us. The affirmative was held by a court having jurisdiction to decide it. If an original question, we should not have had much difficulty in disposing of it. This contract, then, stood simply upon the personal obligation of Mina, and as between the parties it was void and of no effect, if Mina or his legal representatives chose to avail themselves of its illegality. But Mexico, after she had gained her independence in 1824, assumed the debt due to the Baltimore Company as one of national obligation, which had been contracted for the service and benefit of the nation by a general declared bene meritors de la patria. The assumption was the free act of a sovereign power, and wholly independent of the question as to the legal qualities or character of the debt, as viewed under the statute or common law of the country in which it originated. It was assumed by the Congress of Mexico, upon public political considerations, in favor of persons who had contributed their means in support of the struggle which resulted in the achievement of her independence, and the obligation rests not upon the contract of General Mina, or municipal regulations, but upon the decree of the sovereign power and public law of the nation.

We may add, that after the recognition and adoption of this claim by the Mexican authorities, the Government of the United States, through its minister to that country, made it the subject of negotiation on behalf of the parties in interest, who were citizens, for the purpose of procuring indemnity for the same, and which resulted, as has been already stated, in its satisfaction, under the convention of 1839.

We have no difficulty, therefore, in holding that the demand in 1829 constituted a right of property or interest in Gooding, the insolvent, that passed to the plaintiff as trustee, by virtue of the assignment under the insolvent proceedings of 1829. The case of Comegys et al. v. Vase, (1 Peters, 193, 216, 218, 220,) is a full authority upon this point.

As to the objection that the plaintiff is concluded by the decision of this court in the case of the former, Administrator of Gooding v. the Executors of Oliver, reported in the 17th How., 274, one of the questions decided in that case furnishes a conclusive answer to it. We need not repeat the reasons or authority which led this court to its conclusion, which are there stated at large.

The decree of the court below reversed and remanded, with directions to enter a decree for the plaintiff against the administrators of Gooding, deceased, in pursuance of above opinion and stipulations of parties.

title: Mayer v. Pinkney/Opinion of the Court


text: Talk:Mayer v. Pinkney/Opinion of the Court


text:
Fackler v. Ford

THIS was an appeal from the Supreme Court of the Territory of Kansas.

The facts of the case are stated in the opinion of the court.

It was argued by Mr. Carlisle, upon a brief filed by Mr. Badger and himself, for the appellant, and by Mr. Ewing and Mr. Coombs for the appellees.

The counsel for the appellant insisted that the agreement of November 23, 1856, was in violation of the fourth and fifth sections of the act of 31st March, 1830.

4 Stat. at L., 392.

We insist that the contract on which this bill is filed is in conflict with the provisions of both these sections, and tends immediately to defeat or obstruct the purpose of Congress. That purpose, in both sections, is to secure free and open contests at the sales of the public lands by auction. The fourth section prohibits any contract or agreement to induce or prevent any one from bidding at such sales. Here, the plain result and effect of this contract was to prevent the appellees from bidding for land which the contract shows that they desired to possess; and this was directly within the scope of the agreement and purpose of the parties. For how could it be consistent with the agreement, that the appellant should buy for himself and the other parties; that the other parties should bid against him-that is, against themselves? That they would not, was certain, because those other parties were by the agreement to pay to the appellant one moiety of the price at which the land should be bid off by him; and the agreement shows upon its face that it was well understood that the appellant would, as a settler on the land, buy it for the minimum price at which it was to be put up for sale; or, in other words, it was the expectation that there would in effect be no auction and no bid but that of the appellant, if the appellees did not enter the contest. And the agreement to pay the appellant ten thousand dollars beyond the price to be paid to the United States, shows that the land to be bought was known to be worth many times that price. It was therefore a plain, direct purpose of the contract to prevent the land from bringing a fair value, by stifling a contest, and excluding the only party besides the appellant desiring the land from bidding. And further, this understanding was so much a part of the contract, that the appellees could not have bid without violating the agreement on their part, and discharging the appellant from his part thereof. For to bid would have been to enhance the price, one-half of which the appellant was to pay, contrary to the obvious intent and purpose of the contract.

Now, all this is in plain contravention of the fourth section of the statute, which makes it an offence to bargain, contract, or agree with any person, that such person will not bid at any such sale, or even to attempt to make a bargain, contract, or agreement, for such purpose. Now, here was not only a contract, but an effectual one, by which the appellees were prevented from making a bid.

But further, the same section makes it an offence, by any 'combination or unfair management,' to hinder, or prevent, or attempt to hinder or prevent, any person from bidding; and though this primarily refers to the hindering of persons from bidding who are not parties to the combination or management, yet in this case, upon this contract, the combination or management with each other to procure the land at a less price, by preventing one of the parties, is seen to be within the mischief which the statute was intended to prevent; and whether the parties would or would not be indictable, yet the contract is in plain and evident conflict with the policy of the law, and therefore prohibited thereby.

But the contract is also manifestly a violation of the lastcited section-the fifth of the statute.

That section prohibits any and every contract or secret understanding made by one or more persons with another who proposes to purchase any such lands, to pay or give to such purchaser for such land a sum of money or article of property over and 'above the price at which the land may or shall be bid off,' and declares every such contract, &c., and 'every bond, obligation, or writing, of any kind whatsoever, founded upon or growing out of the same,' to be utterly null and void, and authorizes any party to such contract, &c., who may pay any such sum of money, &c., to sue for and recover back the same. Now, the contract in this case, we submit, falls, both literally and in spirit and intent, within the prohibition of this section. First, as to its letter. The parties came to an understanding for what the statute prohibited, and then entered into a written contract, which is void. Secondly, the whole scope and intent of the contract is in violation of the spirit of the law, which is, to secure a fair competition at the public sales. And both sections seek to accomplish that purpose-the former, by punishing any attempt to prevent bidding; the latter, by avoiding contracts between the parties, by which one should buy and sell to another at an enhanced price. The object is one-to insure fair competition. This is sought by both sections; and the contract in our case embraces both the modes of evading the enactment and accomplishing the mischief against which the statute was directed. There is, first, the attempt, by a bargain well devised and successfully carried out, to prevent competition, and procure the land at less than its value, by making it the interest of one party not to bid; then, there is, to accomplish the same purpose, the stipulation by that party to pay a price additional to that offered to and received by the United States at the auctionsale, and the actual payment thereof to the other party.

Now, it seems sufficiently obvious, that if such a contract will be enforced in a court of justice, for either party against the other, the object of the statute will be defeated. True, one or both the parties might have been, perhaps, indicted under the first section before the time of limitation had expired, and true, also, that one of the parties might, and may now, recover against the other the sum paid in violation of the law; but that is not the full measure of aid which courts of justice give in support of the law. The indictment may be barred by time; the recovery back of the money may be prevented by the statute of limitations; but courts act upon the principle of giving no relief to parties to an unlawful contract-one expressly forbidden by law, or growing out of or connected with one so forbidden, or which plainly violates the policy of the law-the end and object of the law-however such contracts may be framed or executed.

This case, we submit, falls within this principle, and the appellees are consequently not entitled to relief.

The counsel for the defendant contended, on the other hand, that the agreement was not in violation of either of these sections.

The fourth section was intended to protect the United States against combinations to prevent competition at the sales.

Now, this case does not come within the provisions of this fourth section; there is no such agreement as it contemplates, either alleged or proved. If that section stood alone, this would be simply a case where two or three men give two or three other men a sum of money, the latter of whom are to bid off two designated tracts of land for the common benefit, and divide the land equally between them.

2. But the contract does, we think, come within the fifth section of the same act, which was intended, not for the protection of the United States, but for the protection of the person who is made to pay a premium to another for bidding off land for him. It is to prevent the levying of black mail, by combinations of men, trespassers on the public lands, who assemble at the sales, and with rifle and revolver overawe honest bidders. It was intended for such cases. It is in these words:

'That if any person or persons shall, before or at the time of the public sale of any of the lands of the United States, enter into any contract, bargain, agreement, or secret understanding with any other person or persons, proposing to purchase such land, or pay or give such purchasers for such land a sum of money, or other article of property, over and above the price at which the land may or shall be bid off by such purchasers, every such contract, bargain, agreement, or secret understanding, and every bond, obligation, or writing of any kind whatsoever, founded upon or growing out of the same, shall be utterly null and void. And any person or persons being a party to such contract, bargain, agreement, or secret understanding, who shall or may pay to such purchasers any sum of money or other article of property, as aforesaid, over and above the purchase money of such land, may sue for and recover such excess from such purchasers in any court having jurisdiction of the same. And if the party aggrieved have no legal evidence of such contract, bargain, agreement, or secret understanding, or of the payment of the excess aforesaid, he may, by bill in equity, compel such purchaser to make discovery thereof; and if in such case the complainant shall ask for relief, the court in which the bill is pending may proceed to final decree between the parties to the same: Provided, every such suit, either in law or equity, shall be commenced within six years next after the sale of said land by the United States.'

The person of whom illegal exaction is made is not an offending, but, in the language of the act, the 'aggrieved' party. Courts of equity are opened to him; he may compel a disclosure by the offending party, and he may have a decree for 'such excess' as he has been compelled to pay. He may not, as seems to be supposed on the other side, recover back the actual purchase money, but only the excess, having his remedy in equity, as a matter of course, for the title to his land also. The fact that he has been swindled in the purchase, does not at all deprive him of his right to the land purchased. If the complainants had paid but $560, the actual price at which the land was bid off, they would have been entitled to their half of the land, beyond all doubt or question. But they were illegally required to pay an 'excess,' or not get the land. They paid it; the act of Congress says they are 'aggrieved,' and have a right to recover it back in equity. The act which gives them equitable remedy, which they had not, cannot be construed to take away that which they already had. It is not intended to aggrieve the person imposed on, but to redress his grievance.

Mr. Justice GRIER delivered the opinion of the court.

title: Fackler v. Ford


text: Talk:Fackler v. Ford

title: Talk:Fackler v. Ford


text:
Fackler v. Ford/Opinion of the Court

Ford and others are complainants in a bill for specific performance of a contract made by them with Fackler & Mills.

The bill charges that on and before the 22d of November, 1856, Fackler claimed, as actual settler thereon, a fractional section of land containing sixty acres, and Mills the east half of a quarter section, containing eighty acres, in Leavenworth county, Kansas Territory, being parts of the land purchased by the Givernment of the United States of the Delaware Indians.

These lands had been appraised at eight dollars an acre, and advertised for sale pursuant to law. That prior to that date, Fackler & Mills surveyed and laid off said tracts of land so claimed and held by them, into blocks, lots, public grounds, streets, alleys, &c., for a town to be known as 'Fackler's addition' to Leavenworth city; that they made a plat of it and divided the whole into eighty shares of six lots each, executing certificates, on the back of each of which they indorsed the lots assigned; that they also represented themselves to be owners of a ferry right from the south part of Fackler's addition to and including a landing on the opposite side of the Missouri river, and a lease of a fractional section in Platte county, in Missouri, containing thirty-four acres; that Fackler & Mills were anxious to sell and dispose of the undivided half of the ferry, together with an equal and divided half in lots of the 140 acres, being 40 shares, containing in the aggregate 240 lots; that on the 22d of November, 1856, they entered into covenant, under seal, to sell to complainant 40 shares, being one-half of 140 acres in Fackler's addition to Leavenworth city, which shares were divided and agreed to be the following lots, viz: 23, &c., &c., &c.; that the complainants have paid the sum of $10,000 as a consideration, and agreed to furnish one-half the purchase money to be paid at the Delaware sales; that Fackler & Mills agreed to make a quit-claim deed to the vendees when they have obtained a title for the lands, and as part consideration of said payment, a deed for the undivided half of the ferry right and lease of grounds on the Missouri side should also be executed.

At the bottom of this agreement, of the same date, is a receipt by Fackler for $560, 'being one-half of the appraised value of the lands described in the within contract, which we are to use in paying for the said lands at Delaware sales, held at Leavenworth this day.'

The bill further charges that Fackler & Mills did obtain a title for said land, and now refuse to convey to complainant either the land or the moiety of the ferry right, and prays for a decree for specific performance.

The respondents demurred to this bill, and afterwards withdrew their demurrer and filed an answer. The answer admits the contract and receipt of the money, and purchase of the lands, but charges that the Government of the United States was trustee of the Delaware Indians of these lands, and that the act of the officers of the Government in fixing the value of the land, and in restricting the purchase thereof to settlers thereon, to such valuation, was a 'fraud on the Indians,' and that the plaintiffs were cognizant of such fraud; that the lands were appraised far below their true value; that respondents have not put the plat of their town on record; that therefore the description of the land is so vague and uncertain that a court cannot decree a specific performance; that a statute of Kansas requires all town plats to be recorded; that besides the money paid to the respondents, there was a parol representation made by complainants; that by their capital and influence they had built up other towns in the West, and would do the same with this if they could get a large interest at low rates; and that not having performed this part of their contract, respondent refused to make them a title; and lastly, the answer concludes with the following defence and apology:

'And this defendant says, that inasmuch as the plaintiffs have endeavored to avail themselves of a supposed technical legal advantage to aid them in a non-compliance with their contract, and have failed to comply with the same, defendant in turn claims that he is justified in charging, and does charge and insist, that said contract was made before the relinquishment of the title of the Delaware Indians to said land, and in violation of the said treaty with said Indians; and that said agreement, settlement, survey, and platte of said land were each in violation thereof, and in violation of the laws of the United States, and in violation of the statutes of the Territory of Kansas, and in violation of the public policy of the United States, and void.'

Afterwards, on motion of complainants, the court ordered to be expunged from the answer each one of the charges, a summary of which we have just given. This left in the answer nothing but an admission of the charges in complainants' bill.

A bill of exceptions (according to the practice of that court) was taken to this order of the court, and the case was then heard on the bill, answer, and exhibits, and a decree was entered for complainants, which was confirmed on appeal to the Supreme Court of the Territory.

The allegation that the United States defrauded the Indians, and that the lands were sold below their value, and consequently that Fackler, having got his title by a fraud, was bound to commit the further fraud of Keeping the complainants' money and the land too, might well have been expunged from the answer as impertinent in every sense of the term. The plea of vagueness of description in the contract, and that defendant had not put his town plat on record before he got a title from the United States, partake largely of the same quality.

The plea that plaintiffs had not used their influence to bring emigrants and make improvements in the intended addition to the city, and thus add value to the land which the respondent would not convey to them, was surely irrelevant, if not impertinent; and finally, the sweeping charge in the conclusion of the answer, that the whole transaction was in violation of the treaty with the Indians, and in violation of the laws of the United States, and of the statutes of Kansas, does not indicate whether respondent intends to charge the complainants with fraud, or rely upon his own. It alleges no facts, and is followed by no proof. It is in fact a return to the demurrer to the bill, and as such has been argued in this court.

The question to be decided is, whether there is anything on the face of this contract which shows it to be void by any law of the United States. How the treaty or the laws of Kansas can affect it has not been shown, and need not be further noticed. It was time enough to record the plat of the intended city when the respondents had obtained a title, and so far as it concerned the complainants, they could not be in default till they got a title, and were offering their lots for sale. The enumeration of the lots in the contract was a mode of specifying how the land should be divided, and the plat of the intended town could be referred to for description and certainty just as any other private survey or draft.

The laws of the United States which it is alleged invalidate this contract, are the fourth and fifth sections of the act of Congress of 31st of March, 1830, entitled 'An act for the relief of purchasers of public lands, and for the suppression of fraudulent practices at the public sales of the lands of the United States.' These sections are in these words:

'Sec. 4. That if any person or persons shall, before or at the time of the public sale of any lands of the United States, bargain, contract, or agree, or attempt to bargain, contract, or agree, with any other person or persons, that the last-named person or persons shall not bid upon or purchase the land so offered for sale, or any parcel thereof, or shall by intimidation, combination, or unfair management, hinder or prevent, or attempt to hinder or prevent, any person or persons from bidding upon or purchasing any tract or tracts of land so offered for sale, every such offender, his, her, or their aiders and abettors, being thereof duly convicted, shall, for every such offence, be fined not exceeding one thousand dollars, or imprisoned not exceeding two years, or both, in the discretion of the court.

'Sec. 5. That if any person or persons shall, before or at the time of the public sale of any of the lands of the United States, enter into any contract, bargain, agreement, or secret understanding with any other person or persons, proposing to purchase such land, or pay or give such purchasers for such land a sum of money, or other article of property, over and above the price at which the land may or shall be bid off by such purchasers, every such contract, bargain, agreement, or secret understanding, and every bond, obligation, or writing of any kind whatsoever, founded upon or growing out of the same, shall be utterly null and void. And any person or persons being a party to such contract, bargain, agreement, or secret understanding, who shall or may pay to such purchasers any sum of money or other article of property, as aforesaid, over and above the purchase money of such land, may sue for and recover such excess from such purchasers in any court having jurisdiction of the same. And if the party aggrieved have no legal evidence of such contract, bargain, agreement, or secret understanding, or of the payment of the excess aforesaid, he may, by bill in equity, compel such purchaser to make discovery thereof; and if in such case the complainant shall ask for relief, the court in which the bill is pending may proceed to final decree between the parties to the same: Provided, every such suit, either in law or equity, shall be commenced within six years next after the sale of said land by the United States.'

The fourth section is intended to protect the Government and punish all persons who enter into combinations or conspiracies to prevent others from bidding at the sales, either by agreement not to do so, or by intimidation, threats, or violence.

There is nothing to be found on the face of this contract which can be construed as an agreement not to bid, or to hinder, intimidate, or prevent others from doing so.

The fifth section is evidently intended for the protection of those who propose to purchase lands at the public sales from the extortions of those who have formed the combinations made penal by the fourth section. The complainants stand in the character of the parth aggrieved by the fraud, if there be any in the case. If Fackler had made his conveyance according to his contract, and the complainants were now seeking to recover back the ten thousand dollars paid to him, this section of the statute might have been invoked by them, on proof of such a combination, and that Fackler was a party to it, as he now acknowledges. But it is no part of the policy of this section to encourage frauds by releasing the fraudulent party from the obligation of his contract. The allegation of the answer that the contract was in violation of the treaty with the Indians, and of the acts of Congress, may be a confession of the respondent's own fraud, but it can give no right to commit another.

The answer filed in this case is by Fackler alone; the record shows the agreement of counsel that the bill be dismissed as to Mills.

The court below were therefore right in decreeing a specific performance of the contract, but erred in that part of the decree which orders a conveyance of the undivided moiety of the 140 acres. The contract is for a specified and divided moiety of the land, and an undivided moiety of the ferry privilege, and that portion of the decree which orders a conveyance according to the contract is affirmed with costs, and record remitted, with instructions to the court below to reform their decree in accordance with this opinion.

title: Fackler v. Ford/Opinion of the Court


text: Talk:Fackler v. Ford/Opinion of the Court


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Washington Alexandria and Georgetown Steam-Packet Company v. Sickles

THESE two cases were brought up by writ of error from the Circuit Court of the United States for the District of Columbia.

They related to the same subject-matter, and were argued together. The first case was an action brought by Sickles and Cook for their share of the earnings of the steam-packet company by the use of their cut-off from March 13, 1846, to October 19, 1846; the second for the same earnings from October 13, 1846, up to December 26, 1855.

The case was before this court at a preceding term, viz: December term, 1850, and is reported in 10 Howard, 419. The suit there was for earnings from 20th August, 1844, to March, 1846.

When the mandate went down a new trial was had, (the judgment of the court below having been reversed by this court,) which took place at October term, 1855. The plaintiffs below, Sickles and Cook, had in the mean time amended their pleadings according to the evidence as given on the first trial, by making the declaration consist of a special count and the common money counts. The record entries were as follows, relative to this trial in 1855:

Narr. Non assumpsit and issue.

November 22. July sworn; verdict for plaintiffs; damages $1,695.79, with interest from March 16, 1846; verdict rendered 7th December.

December 14. Judgment for plaintiffs on the first count in the declaration.

December 14, 1855. Appeal bond, writ of error, citation, &c.

The writ of error thus sued out was not prosecuted, and the case was docketed and dismissed, under the rule, with costs, on December 19, 1856. Of course this was done at the instance of the counsel for Sickles and Cook.

On the 26th of December, 1855, the suits now in question were brought by Sickles and Cook. The declaration consisted of two special counts and the common money counts, which were afterward abandoned, and the case went to trial on the two special counts. It resulted in a verdict for the plaintiffs for $16,388.25.

On the trial of each of the two last-mentioned cases in the court below, the plaintiffs contended that by the verdict and judgment rendered in the case tried in 1855, between said plaintiffs and defendant, the existence of the contract as set forth in the two first counts of their declarations in said causes, (which was identical with that set forth in the declaration in said first-mentioned cause,) and the rate of saving ascertained by said experiments, were judicially settled between said plaintiffs and defendant; and that in all subsequent suits between the same parties on said contract, the said defendant was estopped to deny the same, or the rate of saving fixed by the experiment provided for by said contract, and the court below so ruled. The defendant excepted to the ruling of the court, and presented objections in various forms by different exceptions.

The reader will perceive that the principal question brought before this court by the bills of exception was that relating to the doctrine of estoppel, when taken in connection with the order or the Circuit Court passed on the 14th December, 1855, ordering judgment to be entered on the first count of the declaration.

The case was argued by Mr. Badger and Mr. Carlisle for the plaintiffs in error, and by Mr. Bradley and Mr. Stone for the defendants.

The whole doctrine of estoppel was reviewed, and also that of docket entries as being records. In order to give some account of the views of the counsel upon the first subject, the following may be referred to as a small branch of the argument.

The counsel for the plaintiff in error said:

Now, the rule we take to be this. If, in the former proceeding, the title of the party has been directly alleged, and an issue taken upon it which involves no other matter, or if any fact being part of that title has been thus separated from all other matters and made the point of an issue, the finding upon it may in such subsequent suit be relied on in pleading as a technical estoppel, and not otherwise. And that where in the former suit there has not been such separation of the title from all other matters, but the same has been involved in a general issue with other matters, whether this arise from the mode of pleading adopted by the parties, or required by the nature of the action, no finding thereon can either establish or disaffirm the title so as to estop either of the parties in a subsequent suit; and that if it cannot operate as an estoppel by pleading, neither can it have the effect of an estoppel when given in evidence to the jury.

This is the undoubted law in England; which is proved by the case of Outram v. Morewood, already cited, where Lord Ellenborough shows the true nature and office of an estoppel as distinguished from a bar; by the case of Evelyn v. Hayes, cited with approbation in Outram v. Morewood, and tried before Lord Mansfield, which is precisely in point; by Hooper v. Hooper, McCl. and Young, 509, where, in an action for obstructing a way, the record of a verdict and judgment for the plaintiff in a former action, had on the plea of not guilty, was given in evidence, and it was held not to be conclusive of the plaintiff's right so as to prevent the defendant from going into his case; by Miles v. Rose, 5 Taunt. 704; and by the case of Carter v. James, 13 M. and W., 137; and there is no English case to the contrary.

It is true that different views prevail in the several States of the Union-some holding the English doctrine, and some admitting, in aid of the record, parol evidence to show on what points the case turned, of the most dangerous and latitudinarian scope and tendency, upon the notion that certainty was to be obtained by evidence in its nature the most uncertain, and that there was no danger in allowing one trial upon a general issue to conclude a question of title.

Mr. Justice GRIER, when delivering the opinion of this court, in the case of Richardson v. Boston, (19 How.,) takes notice of this contrariety of opinion in the several States; and we submit that the present is a fit occasion for this high tribunal to lay down a rule which may tend to introduce order and consistency into the decisions in the States, and at all events to establish the true rule in this District. Here the court is trammeled by no State decisions establishing a local law, to which respect must be paid, whether right or wrong.

And we submit that the English decisions are in every respect entitled to the highest authority. They show the rule of the English law from the earliest times-from the Year Books down-of that common here, which is still maintained by our ancestors and established here, which is till maintained in many of the States in its original simplicity and directness, and which ought not to be subject to capricious variations by judges speculation how, in this age of progress, they can amend what they have no rightful authority to alter-what they are appointed to expound, and apply, and preserve, until the legislative power shall interpose to change it.

If this court should adopt the exposition of the law established in England, the rule is clear beyond controversy, that in a second action for a second injury to the same right or title, a verdict and judgment for a plaintiff on the plea of not guilty in a former suit cannot be used as an estoppel in pleading, and cannot be conclusive of the right when given in evidence to the jury.

And does not this rule apply to and settle our case? Ours it an action of assumpsit. There is no English case in assumpsit to which the rule has been applied, because no case has happened in which it could have been applied. Before Slade's case, as Lord Loughborough has shown, this action was never brought to recover a debt under the name of damages, but only to recover special damages for a breach of promise, as, for example, to recover on account of a breach of a promise to deliver corn, by which the plaintiff was obliged to buy corn at a higher price.

See Rudder v. Price, 1 Hen. Bl., pages 550 and 551, n. (a.)

Since the 29 Car. II no such case could well arise, since all contracts not to be performed within a year were avoided by that statute, unless reduced to writing, and signed by the party to be charged therewith. Hence, cases resting upon mere verbal evidence could not present such a question, and if the contract was in writing, there would be no occasion to call in the aid of the former proceedings. But no case on an assumpsit where this question could have arisen has been found, so far as we know, in any English reports. Nothing is said against the application of the rule to it, nor intimated, and the case now before the court is precisely within the principle on which the cases establishing the rule are founded.

Upon the particular point decided by this court the counsel for the defendants in error said:

III. Are the plaintiffs to be deprived of the benefit of the estoppel for the reason that, when the verdict was rendered, the declaration, in addition to the special count in the contract, contained also common counts?

The jury by their verdict necessarily found the statements of fact in all the counts of the declaration to be true. The theory of several counts is that they represent distinct and independent transactions, otherwise the declaration would be subject to the charge of duplicity. When the verdict was rendered the plaintiffs might have had it entered on the first count, and the judgment following the verdict, there could have been no question as to the estoppel in this case, (if there can be an estoppel in any case,) for that count sets forth the contract and experiment, with the result of it.

This will hardly be doubted. Yet why is it, if not because the verdict found the truth of the allegation in each count?

Although the plaintiffs did not, when the verdict was rendered, have it entered on the first count alone, yet they subsequently had the verdict amended and applied to that count by the court, who were satisfied that the evidence given applied to it, and not to the other counts. That the court had power to do this is well settled, and an amendment may be made even after writ of error brought and argued in the upper court.

See Matheson, administrator, v. Grant, administrator, 2 Howard, 281, 282.

See Stockton et al. v. Bishop, 4 How., 167.

Bank of the United States v. Moss, 6 How., 39, shows that at a subsequent term, after judgment has been arrested, the verdict may be amended and applied to the good count.

See, also, Parker v. Turner et al., 12 How., 45, as to amendments of verdicts at common law, and also the effect of the 32d section of the Judiciary act of 1789. If courts have power to amend verdicts for one purpose, there can be no good reason why they should not for another, when the amendment is made to apply the verdict to the count on which the testimony was given, particularly when the one purpose is as meritorious as the other. It may be that the amendment of the verdict in the case tried in 1855 is not regularly noted, but it is sufficiently shown by the entry of the judgment, by order of court, as the judgment must follow the verdict. This could not have been urged in a direct proceeding on that judgment, but would have been cured by the 32d section of the Judiciary act of 1789.

See 12 How., 45, and 4 How., 167.

It can hardly be an objection in a collateral proceeding.

This doctrine of estoppel is not a mere technical rule, tending to exclude truth, but it is based on sound principles of public policy. Society has an interest in putting an end to litigation, and preventing the unnecessary repetition of it. Courts are established for the benefit of the community, not to encourage the litigious spirit of individuals. This case is a striking illustration of the necessity of such a rule. The trial of the questions now disputed occupied the time of the court and jury below for fourteen business days. It does not appear that there was a motion for a new trial; if made, it was overruled before judgment was entered.

No writ of error was prosecuted.

Under such circumstances, public policy forbids a retrial of facts thus established.

The defendants had a fair trial as to the contract-had nine years to prepare for the trial, and should now abide by its result.

See Greenleaf on Evidence, vol. 1, sec. 531, R. 2.

Broom's Legal Maxims, p. 131.

'Interest republicae ut sit finis litium.' Mr. Justice CAMPBELL delivered the opinion of the court.


text: Talk:Washington Alexandria and Georgetown Steam-Packet Company v. Sickles


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Washington Alexandria and Georgetown Steam-Packet Company v. Sickles/Opinion of the Court

The defendants in error, as plaintiffs, sued the plaintiffs in error, in assumpsit in the Circuit Court, upon a special parol contract, purporting to have been made in 1844, to the effect that they having a patent for Sickles's cut-off, for saving fuel in the working of steam-engines, and the defendants being the owners of a certain steamboat, it was agreed between them that the said patentees should attach to the engine of the defendants one of their machines; and that the defendants should pay for the use thereof three-fourths of the saving of fuel produced thereby, the payments to be made from time to time, when demanded. That, to ascertain the saving of fuel, an experiment should be made in the manner described in the declaration, and that the result should be taken as the rate of saving during the continuance of the contract, which was to be as long as the patent and the steamboat should last. The plaintiffs aver, that the experiment had been made, and the rate of saving had been duly ascertained; and that the machine had been used in connection with the engine on the said boat, until the commencement of the suit.

In the first count of the declaration, the plaintiffs further stated, that they brought, in March, 1846, a suit on this contract in the Circuit Court for the sum then due, and had obtained a verdict and judgment therefor in the Circuit Court in 1856, and had thus established conclusively the contract between the parties. These last allegations are not contained in the second count. The defendants pleaded the general issue.

The plaintiffs produced upon the trial, as the only testimony of the contract, the proceedings of the suit mentioned in the declaration, and insisted that these proceedings operated as an estoppel upon the defendants. These proceedings consisted of a writ, a declaration, containing two counts upon the contract, and the common counts, and the plea of the general issue; also a docket entry of a general verdict, in favor of the plaintiffs, on the entire declaration, and a docket entry of judgment, subsequently rendered on the first count-a count similar to the counts in the declaration in the present suit. The defendants objected to these docket entries as evidence of a verdict and judgment; but insisted they were simply memoranda or minutes, from which a record of a verdict and judgment were to be made. It appears that in the courts of this district, as in Maryland, the docket stands in the place of, or, perhaps, is the record, and receives here all the consideration that is yielded to the formal record in other States. These memorials of their proceedings must be intelligible to the court that preserves them, as their only evidence, and we cannot, therefore, refuse to them faith and credit. Bateler v. State, 8 G. and J., 381; Ruggles v. Alexander, 2 Rawle, 232. Besides this testimony of the contract, the plaintiffs proved the quantity of the fuel that had been used in the running of the boat, and relied upon the rate as settled to determine their demand, and insisted that the defendants were estopped to prove there was no such contract; or to disprove any one of the averments in the first count of the declaration in the former suit; or to show that no saving of the wood had been effected; or to show that the so-called experiment was not made pursuant to the contract, or was fraudulently made, and was not a true and genuine exponent of the capacity of the said cut-off; or to prove that the said verdict was in fact rendered upon all the testimony and allegations that were submitted to the jury, and was in point of fact rendered, as by the docket entry it purports to have been, upon the issues generally, and not upon the first count specially.

The Circuit Court adopted these conclusions of the plaintiffs, and excluded the testimony offered by the defendants, to prove those facts.

The authority of the res judicata, with the limitations under which it is admitted, is derived by us from the Roman law and the Canonists. Whether a judgment is to have authority as such in another proceeding, depends, an idem corpus sit; quantitas eadem, idem jus; et an eadem causa petendi et eadem conditio personarum; quae nisi omnia concurrent alia res est; or, as stated by another jurist, exceptionem rei judicatae, obstare quotiens eadem qaestio inter easdem personas revocatur. The essential conditions under which the exception of the res judicata becomes applicable are the identity of the thing demanded, the identity of the cause of the demand, and of the parties in the character in which they are litigants. This court described the rule in Apsden v. Nixon, (4 How. S.C.. R., 467,) in such cases to be, that a judgment or decree set up as a bar by plea, or relied on as evidence by way of estoppel, must have been made by a court of competent jurisdiction upon the same subject-matter, between the same parties for the same purpose. The thing demanded in the present suit is a sum of money, being a part of the consideration or price for the use of a valuable machine for which the plaintiffs had a patent, and is the complement of a whole, of which the sum demanded in the first count of the declaration in the former suit is the other part. The special counts in the declaration of each suit are similar, being framed upon this contract; and a decision in the one suit on those counts in favor of the plaintiffs necessarily included and virtually determined its sufficiency to sustain the title of the plaintiffs on it. It was, therefore, admissible as testimony. This conclusion is supported by adjudged cases, and the authority of writers on the law of evidence. Gardener v. Buckbe, 3 Cow., 120; Dutton v. Woodman, 9 Cushing R., 256; Bonnier des Preuves, sec. 766; 8 Dalloz, Jur. Generale, 256, 257, 258. Buller, in his work on Nisi Prius, says: 'If a verdict be had on the same point, and between the same parties, it may be given in evidence, though the trial were not had for the same lands, for the verdict in such a case is very persuading evidence, because what twelve men have already thought of the fact may be supposed fit to direct the determination of the jury. * *  * It is not necessary that the verdict should be in relation to the same land; for the verdict is only set up to prove the point in question, and every matter is evidence that amounts to a proof of the point in question.' B. N. P., 232. The plaintiffs in error contend that, conceding the record to be admissible as evidence, to render the verdict and judgment in the first suit an estoppel, it must be shown by the record, that the very point which it is sought to estop the party from contesting was distinctly presented by an issue, and expressly found by the jury, and that no estoppel by verdict and judgment can arise in an action on the case, or an action of assumpsit, tried upon the general issue, because in no such action can any precise point be made and presented for trial by a jury, and the cases of Outram v. Morewood, 3 East., 346, Vooght v. Winch, 2 B. and Ald., 662, are cited in support of this proposition. And the conclusion would seem to be proper for the attainment of the end, for which authority was allowed to the res judicata as testimony. Experience has disclosed, that for the security of rights, and the preservation of the repose of society, a limit must be imposed upon the faculties for litigation. For this purpose, the presumption has been adopted, that the thing adjudged by a court of competent jurisdiction, under definite conditions, shall be received in evidence as irrefragable truth.

This presumption is a guarantee of the future efficacy and binding operation of the judgment. It presupposes that all the constituents of the judgment shall be preserved by the court, which renders it in an authentic and unmistakable form. It the courts upon the continent of Europe, and in the courts of chancery and admiralty in the United States and Great Britain, where the function of adjudication is performed entire by a tribunal composed of one or more judges, this has been done without much difficulty. The separate functions of the judge and jury, in common-law courts, created a necessity for separating issues of law from issues of fact; and with the increase of commerce and civilization, transactions have become more complicated and numerous, and law and fact have become more closely interwoven, so as to render their separation more embarrassing. The ancient system of pleading, which was conducive to the end of ascertaining the material issue between the parties, and the preservation in a permanent form of the evidence of the adjudication, has been condemned as requiring unnecessary precision, and subjecting parties to over-technical rules, prolixity, and expense. A system of general pleading has been extensively adopted in this country, which rendered the application of the principle contended for by the plaintiffs impracticable, unless we were prepared to restrict within narrow bounds the authority of the res judicata. It was consequently decided that it was not necessary as between parties and privies that the record should show that the question upon which the right of the plaintiff to recover, or the validity of the defence, depended for it to operate conclusively; but only that the same matter in controversy might have been litigated, and that extrinsic evidence would be admitted to prove that the particular question was material, and was in fact contested, and that it was referred to the decision of the jury.

In Young v. Black, 7 Cr., 565, this court admitted in evidence a record of a former suit between the parties, in which judgment was rendered for the defendant, supported by parol proof that the cause of action in the two suits was the same. The court say: 'The controversy had passed in rem judicatam; and the identity of the causes of action being once established, the law would not suffer them again to be drawn into question.' The current of American authority runs in the same direction. Wood v. Jackson, 8 Wend., 9; Eastman v. Cooper, 15 Pick., 276; Marsh v. Pico, 4 Rawle, 288; Green. Ev., section 531.

In the case before the court, the verdict was rendered upon two special counts, and the general counts in assumpsit, but the verdict in the subsequent stage of the proceedings was applied by the court only to the first count. The record produced by the plaintiffs showed that the first suit was brought apparently upon the same contract as the second, and that the existence and validity of that contract might have been litigated. But the verdict might have been rendered upon the entire declaration, and without special reference to the first count. It was competent to the defendants to show the state of facts that existed at the trial, with a view to ascertain what was the matter decided upon by the verdict of the jury. It may have been that there was no contest in reference to the fairness of the experiment, or to its sufficiency to ascertain the premium to be paid for the use of the machine at the first trial, or it may have been that the plaintiffs abandoned their special counts and recovered their verdict upon the general counts. The judgment rendered in that suit, while it remains in force, and for the purpose of maintaining its validity, is conclusive of all the facts properly pleaded by the plaintiffs. But when it is presented as testimony in another suit, the inquiry is competent whether the same issue has been tried and settled by it. Merriam v. Whittemore, 5 Gray, 316; Hughes v. Alexander, 5 Duer R., 488. The defendants in error contend the jury, by their verdict, necessarily found the statements of fact in all the counts of the declaration to be true; and the effect of a verdict and judgment on the whole declaration and a verdict and judgment on the first count is precisely the same, in producing an estoppel, as respects the matters contained in that special count. But this is not true. If the verdict had been rendered on the special count in exclusion of the others, the record itself would have shown that the existence and validity of the contract were in question. There would have been no ground for the inquiry whether any other issue was presented to the jury. But where a number of issues are presented, the finding on any one of which will warrant the verdict and judgment, it is competent to show that the finding was upon one rather than on another of these different issues. Henderson v. Kenner, 1 Rich. R., 474; Sawyer v. Woodbury, 7 Gray, 499. Nor do we think that the subsequent application of the verdict to a single count by the court precludes this inquiry. The authority of the courts to make the application, and the circumstances under which it is allowable, was considered by this court in Matheson v. Grant, 2 How., 263. It is done for the purpose of preventing the consequences of a misjoinder of counts in a declaration, or of the union of insufficient counts with others, so as to allow a valid judgment on the verdict. It had no reference to the use that might be made of the proceedings as testimony in another proceeding. In Maryland, the power to amend the record in this form was conferred by the act of 1809. 3 Maxey, Laws, 484. The case is not embraced in the earlier act of 1785 upon this subject. 3 H. and J., 9; Ibid, 91. It is the opinion of the court, that the Circuit Court erred in holding that the plaintiffs in error were estopped by the proceedings in the former suit, for any inquiry in respect to the matters in issue, and actually tried in that cause; and its judgment is reversed, and the cause is remanded for further proceedings, in conformity with this opinion.


text: Talk:Washington Alexandria and Georgetown Steam-Packet Company v. Sickles/Opinion of the Court


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United States v. Castro

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

The title of Castro is set forth in the opinion of the court.

It was argued by Mr. Stanton (Attorney General) for the United States, and Mr. Edward Swann for the appellees.

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

title: United States v. Castro


text: Talk:United States v. Castro

title: Talk:United States v. Castro


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United States v. Castro/Opinion of the Court

The appellees claim title to eleven leagues of land in California under a Mexican grant.

In March, 1853, they filed a petition before the board of land commissioners, stating that the land in question was, on the 4th of April, 1846, granted by Pio Pico, then Governor of California, to Jose Castro, one of the appellees, under whom the others claim as purchasers. The petition states that the land was occupied and improved by the grantee soon after the date of the grant.

It appears that the paper purporting to be the original grant was deposited in the Government archives of the United States, on the 8th of June, 1849, more than three years after its date, and two years after the cession of the territory. It was deposited not by Castro, but by Bernard McKenzie, whose representatives claim a portion of the land under a conveyance from Castro; and the deed to him bears date on the same day-that is, June 8, 1849. The following is the translation of the grant as it appears in the record:

Pio Pico, Constitutional Governor of the Department of the Californias.

[SEAL.]

Whereas the lieutenant colonel of cavalry, Don Jose Castro, Mexican citizen, has petitioned, for the benefit of himself and his family, for a tract of land, for pasturing cattle, on the bank of the river San Joaquin, consisting of eleven leagues, whose measurement is to be commenced from the edge of the Snowy mountains, following down stream-having previously made the necessary investigations, I have, by a decree of this day, granted to the said Senor the eleven sitios he prays for, declaring to him the ownership thereof by these present letters, in conformity with the law of August 18, 1824, and the regulations of 21st November, 1828, in conformity with the powers with which I find myself invested by the Supreme Government, in the name of the Mexican nation, under reservation of the approval of the Departmental Assembly, and under the following conditions:

1st. He may fence it, without injury to the cross-roads, highways, and rights of way. He may enjoy it freely and exclusively, directing it to the best cultivation or use which may be to his convenience.

2d. He shall request the judge of that district to give him the juridical possession, by virtue of these patents, who shall mark out the boundaries with the respective landmarks, placing, in addition to them, some fruit trees, or others of known utility.

3d. The land, of which donation is made, consists expressly of eleven (sitios) ranges of large cattle, upon the banks of the San Joaquin. Measurement shall commence from the edge of the Sierra Nevada. The judge who may give the possession shall have it measured with entire observance of the ordinances, and in view of the sketch or topographical plan which the grantee shall present.

In consequence whereof, I order that the present title, being held as firm and valid, be recorded in the corresponding book, and delivered to the party in interest for his protection, and other purposes.

Given in the Governor's house, at the city of Los Angeles, upon common paper, there being none stamped, on the fourth day of the month of April, one thousand eight hundred and forty-six.

PIO PICO.

JOSE MATIAS MORENO,

Record has been taken of this superior patent in the respective book.

MORENO.

The handwriting of Pio Pico and Jose Matias Moreno were proved by a single witness. But no testimony was offered to show when or where this paper was executed, nor any testimony to show who had the custody of it, until it was deposited in the public archives, as above mentioned; nor is any reason given for keeping it out of the public office for so long a time, nor how McKenzie obtained possession of it, except by the deed from Castro, which he produced at the same time. And nothing was then produced to support the grant but this paper; no petition from Castro; no informe, or decree, as required by the laws of Mexico. And, notwithstanding Moreno's certificate that a record had been taken of it in the respective book, no trace of anything in relation to it is to be found in the archives of the Mexican authorities; nor was any attempt made to take possession until 1849; for although the appellees state in their petition that Castro took possession soon after the grant was made-that is, in 1846-and some of his witnesses swear to the same fact, and some even carry back his possession to 1844, under a promise of Micheltoreno to make him a grant in that place; yet all of this testimony is contradicted by Vinsenhaler, who appears to have been an active agent in this matter, and directed the surveyor who made the survey in 1853, where he should begin, and where he should run the lines. He says that he was at the place in October, 1849; that Castro took possession in August or September of that year, and built a corral, and had cattle there in the early part of 1850; and that it would have been unsafe, in consequence of the hostility of wild Indians, to have attempted to occupy it earlier. A paper thus wanting in all the written proceedings which the Mexican law required before a grant could be issued, which had never been seen by any one of the witnesses until produced by McKenzie, with no evidence of the time or place of its execution, with no trace of it in the Mexican archives, and the witnesses produced to prove the possession contradicting each other, can hardly be entitled to confirmation as a valid grant. And even if the witness who proves the handwriting of Pio Pico and of Moreno is entitled to belief, yet the conclusion would seem to be irresistible that the paper was fraudulently ante-dated

But apart from these circumstances the grant is invalid, and not supported by legal proof, even if all the testimony adduced by the claimants was credible, and the witnesses above suspicion.

The grants of portions of the public domain in Mexico, the mode of obtaining them, and the officers by whom they were to be issued, and the conditions to be annexed to them, were with great precision regulated by law. This law has so often been referred to and commented on in former opinions of this court, that it is unnecessary to report there its particular provisions. It is sufficient to say that it was required to be in writing, the officers and tribunals before which it was to pass designated, and every step in the process, from the petition of the party to the final consummation of the title, was not only required to be in writing, but also to be deposited and recorded in the proper public office among the public archives of the Republic.

Whenever, therefore, a party claims title to lands in California under a Mexican grant, the general rule is that the grant must be found in the proper office among the public archives; this is the highest and best evidence.

But as the loss or destruction of public documents may in some instances have occurred, it would be unjust that a party should be deprived of his property by reason of an accident which he had not the power to prevent; and upon proof of that fact, secondary evidence to a certain extent will be received.

But in order to maintain a title by secondary evidence, the claimant must show to the satisfaction of the court: 1st, that the grant was obtained and made in the manner the law required, at some former time, and recorded in the proper public office; 2d, that the papers in that office, or some of them, have been lost or destroyed; and, 3dly, he must support this proof by showing, that within a reasonable time after the grant was made, there was a judicial survey of the land, and actual possession by him, by acts of ownership exercised over it.

The survey and possession are open and public acts, and would support the parol evidence of its former existence and destruction or loss. It would show the knowledge of the officers of the Government of the title claimed, and their acquiescence in the justice and legality of the claim.

But without a survey and possession the authenticity of the grant would have nothing to support it but parol testimony, resting only in the knowledge of individual witnesses; for if what purports to be a grant is produced by the party from some private receptacle, and the handwriting of the official signatures proved by witnesses, and even proved to have been executed when it bears date, it is but parol testimony, open to doubt, since its authenticity depends upon the truth or falsehood of the witnesses, instead of resting upon the certainty of the public records of the nation.

We find nothing in the history of Mexican jurisprudence or Mexican grants which would justify this court in supporting a Mexican title made out by such testimony only, or by secondary evidence of any kind short of that above stated.

It will be found, upon referring to the various cases which have come before us from California, that none have been confirmed, unless the grant was established according to the rules of evidence above stated. And they are recognised in the cases of the United States v. Fuertes, 22 How., 445; U.S. v. Batton, 23 How., 341; U.S. v. Luco, 23 How., 615; and U.S. v. Palmer, Cook, & Co., decided at the present term. We repeat again these rules of evidence, because it would seem from the case before us that the board of land commissioners and the Circuit Court regard written documentary evidence, produced by a claimant from a private receptacle, and proved by oral testimony, as of equal authenticity and entitled to equal respect with the public and recorded documents found in the public archives. But such a rule of evidence is altogether inadmissible. It would make the title to lands depend upon oral testimony, and consequently render them insecure and unstable, and expose the public to constant imposition and fraud. Independently, therefore, of the strong presumptions against the authenticity of the paper produced as a grant, it cannot upon principles of law be maintained, even if the testimony produced by the claimant was worthy of belief.

The case of Fremont v. the United States is refered to, both in the opinion of the board of land commissioners and the Circuit Court, and relied on to support their respective opinions. But that case has no analogy to this. There the title-papers, from the petition down to the grant, were found in regular form in the Mexican archives. Their authenticity was therefore attested by the record; and the reasons for the delay in making the surey and taking possession were made known at the time to the Governor, and approved and allowed by him. All of this appeared in the regular official documents; and the difficulty that arose in his case arose upon the conditions annexed by law to an undoubted and admitted grant. Here the difficulty is, whether there is legal evidence to prove that this alleged grant was ever made by the Mexican authorities. And the fact that it was so made must be established by competent evidence, before any of the questions which arose and were decided in Fremont's case can arise in this.

The authenticity of the grant must first be established before any question can arise upon the conditions annexed by law to such grants, or concerning the certainty or uncertainty of the boundaries specified in it. And in the case before us, the grant itself not being maintained by competent testimony, we need not inquire whether the conditions were complied with, or the description of place and boundaries sufficiently certain.

And for the reasons above stated the judgment of the Circuit Court must be reversed, and the case remanded to the District Court, with directions to dismiss the petition.


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