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Page:The Celtic Review volume 4.djvu/355

 a thuilleid air sin. Thigeadh would come, would become, befit or suit, has taken further the special meaning of ought to, with the form of thigead. The form and use were recalled to mind when an old friend, lamenting the indifference to Gaelic, spoke of that tongue as ‘A’ chainnt a thigead bhi anns an dùthaich,’ the language that ought to be in the land. John M‘Gregor, a native of the county, uses the form in this sense in his songs (p. 190):—

Perhaps the d in this instance has shifted back from the prepositional pronouns domh, etc., before which the word is oftenest used in this sense as ‘thigead duit, or thigeadh duit a dheanamh,’ it would be becoming of you to do it, you ought to do it.

Broad dh has the same sound as broad gh, always in initial position, and in most dialects medially in a few words, such as diadhaidh, pious, with diadhair, a divine, etc., eadhon, namely, fiadhain, wild, fiodhag, bird-cherry, fiodhan, cheese-vat, and iodhal, idol. So also feadhainn, people in west Ross. Bàbhun, bulwark, enclosure for cattle, bàbhuinn, towers in Ezekiel xxvi. 4; bàbhuin, bulwarks, in metrical Psalm xlviii. 13, is in Sutherland, bàdhan, a burying-ground, with dh sounded as gh; the Irish bábhún, Middle Irish bódhún, is written badhbhdhún by Dinneen, and pronounced nearly bàwan by Quiggin. Baun, in the parish of Kilberry, opposite Kintyre, is in Gaelic am Bàbhun (with bh silent).

Final dh receives the sound of gh in monosyllables usually in Kintyre, Islay, North Argyll, Skye, West Ross, and, to some extent, in Strathspey, but not in Perth or in Sutherland. In words of more than one syllable, as cogadh, war, deireadh, end, monadh, hill, osnadh, sigh, and the names Donnchadh and Murchadh, the gh sound is heard in those western districts, except Ross, and also in Badenoch. In West Ross gh is heard sometimes, but is not the usual sound


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Page:Dictionary of National Biography volume 59.djvu/31

 loads of goods, which he sent to Saltwood Castle, near Hythe, had been seized and were restored to Arundel (Eulogium, iii. 382;, p. 37). His arms—gules, a bend azure, and a martlet d'or—for which Arundel's had been erased on the hangings at Lambeth, were torn down and thrown out of window (ib.) His register was destroyed, and the records of his consecration and acts are lost (but cf., iii. 326). Before the pope restored Arundel, Walden, still de facto archbishop, appeared before the Duke of Lancaster and the archbishop de jure at the bishop of London's palace and besought their pardon; his life was spared at Arundel's instance (, p. 37; Eulogium, iii. 385). Adam of Usk, who witnessed the scene, compares the two archbishops to two heads on one body.

Walden was taken from the liberties of Westminster and committed to the Tower on 10 Jan. 1400 on suspicion of complicity in the Epiphany plot against Henry IV, but was acquitted (4 Feb.) and set at liberty (Fœdera, viii. 121; Annales, p. 330; Traïson, pp. 100–1). But according to the French authority (ib. p. 77) last mentioned, he had been a party to the conspiracy. This testimony, however, carries no decisive weight.

Walden was not allowed to want, receiving, for instance, in 1403 two barrels of wine from the king; but he felt himself ‘in the dust and under foot of man’ (, iii. 125;, iii. 378, 380; , iii. 19). On the death of Robert Braybrooke, bishop of London, in August 1404, the forgiving Arundel used his influence in Walden's behalf, and induced Innocent VII to issue a bull providing him to that see on 10 Dec. 1404. But the king, who had a candidate of his own, refused at first to give his consent to the appointment; and it was only as a kind of consolation to Arundel for the failure of his attempt to save Archbishop Scrope in the early summer of 1405 that Henry at last gave way and allowed Walden, on making a declaration to safeguard the rights of the crown, to be consecrated on 29 June at Lambeth (, iii. 126;, ii. 293; , pp. 149–50). He was installed in St. Paul's on 30 June, the festival of the saint; the canons in the procession wearing garlands of red roses (ib.) But Walden did not live to enjoy his new dignity long. Before the end of the year he fell ill, made his will at his episcopal residence at Much Hadham in Hertfordshire on 31 Dec. and died there on 6 Jan. 1406 (, iii. 19). An interesting account of his funeral by an eye-witness, John Prophete, the clerk of the privy seal, has been preserved (Harl. MS. 431108, f. 97 b, quoted by, iii. 127). The body, after lying in state for a few days in the new chapel Walden had built in the priory church of St. Bartholomew's, with which his brother and executor was connected, was conveyed to St. Paul's and laid to rest in the chapel of All Saints in the presence of Clifford, bishop of Worcester, and many others. Before this was done, however, Prophete uncovered the face of the dead prelate, which seemed to them to look fairer than in life and like that of one sleeping. His epitaph is given by Weever (p. 434). It says much for Walden's character and amiable qualities that, in spite of his usurpation, every one spoke well of him. Prophete praises his moderation in prosperity and patience in adversity. Arundel, whose see he had usurped, adds his testimony to his honest life and devotion to the priestly office; even Adam of Usk, who reproaches him with the secular employments of his early life, bears witness to his amiability and popularity (ib.;, iii. 282; , p. 37).

John Drayton, citizen and goldsmith of London, by his will, made in 1456, founded chantries in St. Paul's and in the church of Tottenham for the souls of Walden and his brother and his wife Idonea, as well as those of John de Waltham, bishop of Salisbury, his predecessor as treasurer, and of Richard II and his queen (, i. 754). It is not known what connection had existed between Drayton and the two prelates. By a curious coincidence, however, both Waltham and Walden had been rectors of Fenny Drayton.

A manuscript collection of chronological tables of patriarchs, popes, kings, and emperors, misleadingly entitled ‘Historia Mundi’ (Cotton. MS. Julius B. xiii), has been attributed to Walden (, iii. 125) on the strength of a note at the beginning of the manuscript. But this ascription is in a later hand, not earlier than the sixteenth century. The manuscript itself probably dates from the early part of the thirteenth century, which disposes of the alleged authorship of Walden, and is equally fatal to the attribution to Roger de Waltham (d. 1336) [q. v.] found in another copy of the ‘Historia’ (Harl. MS. 1312).

[Rymer's Fœdera, original ed.; Cal. Patent Rolls of Richard II, vols. i. and ii.; Wilkins's Concilia Magnæ Britanniæ; Annales Ricardi II et Henrici IV (with Trokelowe), Walsingham's Historia Anglicana, and the Continuation of the Eulogium Historiarum (vol. iii.), all in Rolls Ser.; Adam of Usk, ed. Maunde Thompson; Froissart, ed. Kervyn de Lettenhove; Chronique}}

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text: Portland Company v. United States

title: Portland Company v. United States


text: Talk:Portland Company v. United States

title: Talk:Portland Company v. United States


text:
Portland Company v. United States/Opinion of the Court

APPEAL from the Court of Claims.

The Portland Company, a corporation of Maine, filed a petition in the court just named to recover the drawback allowed by the 17th section of the act of June 30th, 1864, on certain locomotive-engines exported by them. The engines were manufactured by the company under a contract with the United States, and the internal revenue tax thereon was paid. Afterwards the engines were sold by the government at public auction, and the company bought them. The Court of Claims dismissed the petition, and the claimants appealed.

On the case being called, January 8th, 1872, it was submitted by the appellants on the record, no brief being filed in their behalf.

For the United States, a brief was submitted by Mr. C. H. Hill, Assistant Attorney-General.

The CHIEF JUSTICE, January 20th, 1873, delivering the judgment of the court, said:

From time to time, the court has adopted rules of practice intended to facilitate the presentation of causes by counsel and their consideration by the court. Finding that these rules, through the inattention of the bar, had failed in a great degree of their intended effect, we promulgated at the last term and for the same end, an amended twenty-first rule, the fourth section of which required that the brief should contain, in the order there stated:

First, a concise abstract or statement presenting succinctly the questions involved, and the manner in which they were raised;

Second, an assignment of the errors relied upon, setting out, in cases brought up by writ of error, separately and specifically each error asserted and intended to be urged, and in cases brought up by appeal, as specifically as may be, the error alleged to exist in the decree; or, if the error be alleged in a ruling upon the report of a master, stating the exception to the report and the action of the court upon it;

Third, a brief of the argument exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record and authorities relied upon in support of each point, and containing, when a statute of a State is cited, so much thereof as may be deemed necessary to the decision of the case, printed at length.

The fifth section of the rule also required that when the error allowed is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be instructions given or instructions refused.

And the sixth section required that when the error alleged is to the admission or rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected.

The necessity of strict compliance with these rules, especially in view of the greatly augmented business of the court, is evident. It will facilitate as much the labors of the bar as those of the bench. That counsel might have full notice of the rule, it was required to take effect on the first day of the present month of January, and the clerk was directed to have printed copies made of the rule as amended, and send one copy to each of the counsel in all cases pending and not yet argued. In the case before us, this rule has been totally disregarded on the part of the appellant.

DISMISS THE APPEAL.


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


text:
Railroads v. Richmond

MOTION to dismiss a writ of error to the Supreme Court of Iowa, which had been sued out on the assumption that the case came within the third clause of the 25th section of the Judiciary Act. That act thus enacts:

'That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had,

'(1st.) Where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is AGAINST their validity;

'(2d.) Or where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is IN FAVOR of such their validity;

'(3d.) Or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is AGAINST the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission,--

'May be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error.'The case was thus:

This statute being in force, the Sioux City and Dubuque Railroad, beginning on the Missouri, the western boundary of Iowa, runs eastwardly across the State till it reaches Dubuque on the Mississippi, its eastern boundary. On this road quantities of grain are carried from the West to Chicago and other eastern towns. Arriving at Dubuque, the grain, bound eastward, or as it was called 'through grain,' was formerly taken from the railcars, put on a ferry-boat, carried thus across the Mississippi to Dunlieth (a town in Illinois directly opposite Dubuque), and there put upon cars of the Illinois Central Railroad and sent forward, east. Dubuque was thus a point for transshipment. In this state of things the Sioux City and Dubuque Railroad made a contract with Richmond and another, owners of an elevator at Dubuque, beside the road and near the river, that they, the owners of this elevator, should have the handling of all the 'through grain;' and that the railroad company would pay them a certain price per bushel for receiving and discharging it, and would pay also for storage of it when exceeding ten days.

With this contract in force Congress in 1866 passed two acts, one of June 15th, entitled 'An act to facilitate commercial, postal, and military communicatins among the several States,' which enacted:

'That every railroad company in the United States, &c., be, and is hereby, authorized to carry upon and over its road, boats, bridges, and ferries, all passengers, troops, government supplies, freight, and property on their way from any State to another State, and to receive compensation therefor, and to connect with roads of other States so as to form continuous lines for the transportation of the same to the place of destination.'

The other, an act of July 25th, entitled 'An act to authorize the construction of certain bridges, and establish them as post roads.' This act provided for the construction of certain bridges across the Mississippi River, including one at Dubuque, and declared that they shall be 'For the more perfect connection of any railroads that are or shall be constructed to the said river at or opposite said points, and that, when constructed, all trains of all roads terminating at said river, at or opposite said point, shall be allowed to cross said bridge,' &c.

In pursuance of this second act a brigde was built over the river; and in virtue of the first one the two roads were connected by the Dubuque bridge, so as to form a continuous line of roads, and put under one management and control, that of the Illinois Central Railroad, which agreed to assume the contract about the elevator.

Neither road having, however, any further occasion to transfer at Dubuque anything passing over the road, the elevator was no longer used. The grain passed continuously on. Thereupon, Richmond, and the other owners of the elevator, brought suit against the companies, alleging that they, the companies, were

'Daily receiving through grain as aforesaid, and passing the same through Dubuque, without permitting the plaintiffs to have the handling of the same at their elevator as aforesaid, and without paying the plaintiffs therefor.'

The petition asked for damages, and prayed for an injunction to restrain the companies from delivering grain otherwise than through their elevator.

The defendants denied every allegation in the petition, and averred that the plaintiffs had been paid in full for all of the grain which they were entitled to handle under and by virtue of the said contract. They did not, however, plead specially the Constitution of the United States, nor the acts of Congress hereinbefore named, as a defence to the demand.

The case was heard in the Supreme Court of Iowa, where a final decree was rendered, giving the plaintiffs in the case $73,186 damages, and concluding thus:

'And it is further ordered, adjudged, and decreed that the claim of the said defendants, that the Constitution of the United States, and certain acts of the Congress of the United States, one entitled, &c., approved July 25th, 1866, and another entitled, &c., and approved June 15th, 1866, renders void and of no force and effect the covenants sued on in this action by the said plaintiffs in the contract and supplemental contract, which are the subjects of this action, be and the same is hereby denied, and it is adjudged that the said Constitution and the said acts of Congress do not in any manner affect the validity or force and effect of either or any of said covenants, or of either of said contracts.'

From this decree it was that the present writ was taken, under the assumption, as already stated, that the case came within the third clause of the 25th section of the Judiciary Act.

The motion to dismiss was made on the ground that 'the record did not show a state of facts that made any act of Congress apply to the case.'

Mr. Platt Smith, in support of the motion:

Although the acts authorize the connection of the tracks so as to form continuous lines of transportation to the place of destination; and though the tracks are connected and the lines formed, the acts do not say that the grain once loaded and on the line shall in no case change cars or break bulk short of the ultimate destination.

The contract provides that the owners of the elevator shall have the handling of all through grain, and shall have one cent per bushel for the service. The Supreme Court of Iowa says that they will not compel the railroad company to perform this contract specifically, but that they will give damages in lieu if the grain goes on the continuous line without breaking bulk, and the plaintiffs get judgment for the breach of contract. These acts do not in terms nor can they in spirit be stretched to reach the contracts.

Mr. J. E. Wilson, contra:

The final decree rendered by the Supreme Court of Iowa shows:

1. That a question was presented to that court, considered, and decided, involving the commercial power of Congress, and the construction of two acts of that department of the government, and the exemption set up by the defendants from liability to discharge the covenants, contained in the contracts sued on, because of the exercise of the said power in the passage of the acts named.

2. That the said court did construe the provisions of the Constitution conferring the said power, and did construe the said acts of Congress, and thereupon did adjudge 'that said Constitution and said acts of Congress do not in any manner affect the validity or force and effect of either or any of said covenants, or either of said contracts.'

3. That the several contracts, and the several covenants therein contained, were considered in their relations to the Constitution, and said several acts of Congress, and severally held to be valid and of force and effect, because of the construction given to the Constitution and acts by the said court; thereby denying the right of the defendants to carry grain passing from one State to another State without delivering the same to the plaintiffs, and denying the exemption claimed from the covenant of said contract to deliver said grain, and pay one cent a bushel therefor.

Certainly a Federal question is thus presented under the third clause of the 25th section.

The CHIEF JUSTICE delivered the opinion of the court.

title: Railroads v. Richmond


text: Talk:Railroads v. Richmond

title: Talk:Railroads v. Richmond


text:
Railroads v. Richmond/Opinion of the Court

The defendants in error move to dismiss the writ of error on the ground that the 'record does not show a state of facts, that makes any act of Congress apply to the case.' The record does show, however, that the present plaintiffs in error claimed in the State court, that contracts made with the defendants in error had been rendered void and of no force and effect by provisions of the Constitution of the United States, and of certain acts of Congress, approved June 15th, 1866, and July 25th, 1866, and also that the decision of the Supreme Court of Iowa, denied this claim. The motion to dismiss must, therefore, be


text: Talk:Railroads v. Richmond/Opinion of the Court


text: Railroad v. Johnson

title: Railroad v. Johnson


text: Talk:Railroad v. Johnson

title: Talk:Railroad v. Johnson


text:
Railroad v. Johnson/Opinion of the Court

ON motion to dismiss a writ of error to the Supreme Court of Errors of the State of Connecticut.

Johnson held bonds of the Norwich and Worcester Railroad Company, secured by mortgage on the road and by the transfer of certain stock to Huntington and Nichols, as trustees. The bonds were not paid at maturity, and Johnson filed a petition in equity in the Superior Court of New London County, Connecticut, praying that the mortgage be foreclosed, and sale ordered of the stock. In that suit Huntington and Nichols were summoned, and a decree was given against them as trustees, as well as against the railroad company as mortgagors. From that decree the company alone appealed to the Supreme Court of the State. The decree below having been affirmed in that court, the railroad company alone brought the case here by writ of error.

Johnson now moved to dismiss the writ on the ground that Huntington and Nichols were not joined with the railroad company as plaintiffs.

Mr. George Pratt, in support of the motion:

A writ of error must be brought in the names of all the parties against whom the judgment to be reviewed is given. This is a substantial defect in the appeal, and can be taken advantage of at any time before judgment.

Mr. J. Halsey, contra.

Huntington and Nichols had no interest in the controversy, and did not appeal to the Supreme Court. The only party to the decree of that court was the railroad company, and it is the decree of that court which the writ of error seeks to review. It was, therefore, properly brought in the name of the railroad company alone. The motion to dismiss must be

DENIED.


text: Talk:Railroad v. Johnson/Opinion of the Court


text: Dexter v. Hall

title: Dexter v. Hall


text: Talk:Dexter v. Hall

title: Talk:Dexter v. Hall


text:
Dexter v. Hall/Opinion of the Court

ERROR to the Circuit Court for the District of California, in which court Mary Hall and her four children brought ejectment against Henry Dexter; both parties claiming under John Hall, who died intestate; the plaintiffs as his widow and children; the defendant as his grantee. The case was thus:

On the 30th of December, 1848, T. W. Leavenworth, then alcalde of San Francisco, granted to Hall, a lieutenant of our navy who happened to be in service off San Francisco, a piece of land, part of the pueblo lands situate within the corporate limits of the city as defined in 1851, east of Larkin and north of Johnson Street. The deed was duly recorded before April 3d, 1850, in a proper book deposited in the office of the recorder of the county of San Francisco.

Hall afterwards was sent to a lunatic asylum near Philadelphia. While there he executed, on the 27th of December, 1852, a power of attorney to one Harris, his brother-in-law, to sell this land. The power was acknowledged in the usual form before one Broadhead, a commissioner for California, resident in Philadelphia, who went to the asylum, saw Hall, read the power of attorney to him, asked him if he understood it, which he said he did, and that he desired the land sold for the benefit of his wife and children. Under this power the land was conveyed to persons, who afterwards conveyed to Dexter, the defendant.

Subsequently to the grant made by the Alcalde Leavenworth to Hall, the claim of San Francisco to her pueblo lands was submitted to the Unted States Board of Land Commissioners, and on the 3d of October, 1854, confirmed. An appeal was taken to the District Court, and thence transferred to the Circuit Court, where, on the 18th of May, 1865, the claim of the city to the lands, including the lot now in controversy, was confirmed. And this decree of the Circuit Court was affirmed by this court, the mandate having been sent down and filed February 4th, 1867. On the 20th of June, 1855, a city ordinance, known as the Van Ness ordinance, was passed, by which the city relinquished and granted all her right and claim to the lands within her corporate limits, as defined by the charter of 1851, to the parties in actual possession thereof, by themselves or tenants, on or before January 1st, 1855, provided such possession was kept up until the introduction of the ordinance into the common councils, or, if interrupted by an intruder, had been, or might be recovered by legal process. The ordinance also declared that all persons who held title to lands within said charter limits, lying east of Larkin Street, and northeast of Johnson Street, by virtue of any grant by any ayuntamiento, town council, or alcalde of the pueblo after the 7th of July, 1846, and before the incorporation of the city, which grant, or a material portion of which, was recorded in a proper book of records, deposited in the office of the recorder of the county of San Francisco on or before April 3d, 1850, should, for all purposes contemplated by the ordinance, be decreed to be the possessors of the land granted, although it might be in the actual occupancy of persons holding the same adverse to the grantees. As the lot granted to Hall was within this description, the ordinance assured to him whatever right and title the city then had, and confirmed, so far as the city could confirm it, the alcalde's grant.

Subsequently, on the 11th of March, 1858, the legislature of the State passed an act ratifying and confirming what the city councils had done by the Van Ness ordinance, and on the 1st of July, 1864, Congress enacted that all the right and title of the United States to the lands within the corporate limits of the city of San Francisco, as defined in the act incorporating the city, passed by the legislature of California April 15th, 1851, were thereby relinquished and granted to the city for the uses and purposes specified in the ordinance thereof, ratified by an act of the legislature of the State, approved on the 11th of March, 1858, excepting, however, from the relinquishment certain parcels not included in the grant to Hall.

Hall died in 1860 in the asylum, leaving his widow already mentioned, and four children; all minors at that time, the eldest being twenty years old, the next seventeen, the next fifteen, and the youngest nine.

In 1866 Mrs. Hall and these children (the youngest not yet being of age, and suing by a guardian), brought the ejectment mentioned as this suit.

At the time of the suit there were certain acts of California in force, as follows:

1st. An act of April 22d, 1850, 'defining the time for commencing civil actions.' The 9th section of this act read thus:

'In every action for the recovery of real property or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time prescribed by law, and the occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title, for five years before the commencement of such action.'

2d. An act of March 5th, 1864, 'to limit the time for the commencement of civil actions in certain cases.' This act read as follows:

'In any action which shall be commenced, more than one year after this act takes effect, for the recovery of real property situated in the city and county of San Francisco, or for the recovery of the possession thereof, none of the provisions of the act entitled, &c., passed March 11th, 1858 [the act already referred to, as of that date.-REP.], and none of the provisions of either of the orders or ordinances therein recited or referred to, shall be deemed to give, confirm, or otherwise aid the right or title set up or claimed by any party, unless such party, his ancestor, predecessor, or grantor shall have had actual possession of the land in dispute within five years next before the commencement of such action, the time already elapsed when this act takes effect to be included in the computation.'

In this act there was no provision saving the rights of minors or persons otherwise under disabilities. However, an act passed April 4th, 1864, supplementary to the original act, did make an exception in favor of such persons, including persons 'within the age of majority,' and enacted that 'the time during which such inability shall have continued shall not be deemed any portion of the period of limitation, established in the said act, to which this is supplementary.'

Intermediate between these acts was a third one, that of April 11th, 1855, to amend an act entitled 'An act defining the time for commencing civil actions,' passed April 22d, 1850. This intermediate act provided that

'No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained unless it appear that the plaintiff, his ancestor, or grantor, was seized or possessed of the premises in question, within five years before the commencement of such action; provided, however, that an action may be maintained by a party claiming such real estate, or the possession thereof, under title derived from the Spanish or Mexican governments, or the authorities thereof, if such action be commenced within five years after final confirmation of such title by the United States or its legally constituted authorities.'

The plaintiffs having shown Hall's paper title, including the Van Ness ordinance, and the statutes of California, and of the United States in aid thereof, having shown also the death of Hall, and their own heirship under the laws of California, rested.

The defendant then requested the court to charge the jury that upon these facts he was entitled to a verdict upon the following grounds:

'That the plaintiffs relied on the grant from Leavenworth, alcalde, upon the Van Ness ordinance, and the laws of California, and of the United States in aid thereof. That having commenced their action more than one year after the act of California, approved March 5th, 1864, and entitled 'An act to limit the time for the commencement of civil actions in certain cases,' took effect, they must show an actual possession of the premises in themselves or their ancestors, within five years next before the commencement of this action, which they had failed to do.'

The court, however, refused so to charge, and the case, under exception to the refusal, proceeded.

In this further progress of it, certain depositions of persons resident at Philadelphia (in an asylum near which city it will be remembered that Hall had been confined), were read; some tending to show that on the 27th December, 1857 (the date of execution of the power of attorney under which the land had been sold to the defendants or his grantors), Hall was sane, and others tending to show that he was insane. All these depositions being read the defendants called Dr. Elliot, a physician of San Francisco, who had been long in practice, and was still in practive, and asked him this question (he having read carefully all the testimony in the case relating to Hall's sanity and insanity):

'From the facts stated in these depositions and the symptoms stated, what, in your opinion, was the state of Hall's mind December 27th, 1852, as to sanity or insanity?'

The plaintiffs objected to the witness expressing any opinion founded on the testimony adduced on both sides, and the court sustained the objection; permitting the witness, however, to give his opinion upon the testimony adduced by the plaintiffs. The witness then stated, under the defendant's exception to the ruling, that in his opinion as a medical man of large experience, from the facts and symptoms detailed by the plaintiffs' witnesses, Hall was capable of doing business, and of executing a power of attorney before, at, and after December 27th, 1852, and that such a case of insanity as his appeared to have been, rarely occurred without lucid intervals.

The defendant in rebuttal offered to prove that he had purchased the premises in good faith, for a full consideration, and without notice of the alleged insanity of Hall. But the court rejected the testimony.

1st. Of fact. Whether Hall was sane or insane, when he executed the power of attorney.

2d. Of law. If he was insane, whether the instrument was void or voidable only.

On this last point the court below, having stated that the presumption of law, generally speaking, was in favor of sanity, and that whoever set up insanity was bound to prove it, said:

'If, at the time Hall executed the power in question, he was insane, and his insanity was general, the instrument was a nullity, ''and no title could be transferred under it. In that case the plaintiffs are entitled to a verdict. It matters not, if such were the case, what consideration may have been paid to the attorney, or with what good faith the parties may have purchased. The instrument, in such case, is no more to be regarded as the act of Hall than if he was dead at the time of its execution''.'

The jury found for the plaintiffs; thus finding that Hall was insane.

The case was now here on error, the charge, as just mentioned, as to the effect of insanity, if found, on the power of attorney, being the great question in the case; assignments of error being also made in regard to the question which the court allowed to be put to Dr. Elliot, the medical expert, and to other matters of evidence, and to the refusal of the court to direct the jury when the plaintiffs first rested, that the verdict should be for the defendants.

The case, on the great point of it-the effect of an insanity, which, after the verdict of the jury, was to be regarded, of course, as admitted-was interestingly argued, and with a close examination of the authorities.

Mr. Roscoe Conkling, for the plaintiff in error, and Mr. P. G. Galpin, contra.

For the plaintiff in error, reference was made to certain expressions in Beverly's Case, reported by Lord Coke, but more especially to what is stated by Sir W. Blackstone in his Commentaries, thus:

'Idiots and persons of non-sane memory. . . are not totally disabled either to convey or purchase, but sub modo only; for their conveyances and purchases are voidable, but not actually void'

Thus the law, as laid down by the great teacher of elementary law, both in England and here, for more than a hundred years, showed (it was said), that, assuming Hall to have been insane when he executed the power, the power may have been voidable, but was not void. Suppose (it was argued) that instead of a power, the instrument had been a contract for the sale of the land, acknowledged by Hall and wife, and that the contract had been assigned through Page to Dexter for value; the same objection would lie against it as against the power of attorney. But, the consideration being adequate, and the transaction being free from fraud and without notice, a court of equity would enforce it against both. This is the law as it is to be gathered from Jackson v. Gumaer, and Ingraham v. Baldwin, with other cases, in New York; from Somers v. Pumphrey, 10 v. Holman, in Indiana; Chew v. Bank of Baltimore, in Maryland, and from decisions elsewhere in the United States.

Then, there are certain facts which should be remembered.

1. There was no proof that Hall and Dexter or Hall and Page ever met, or that Page or Dexter knew of or suspected the insanity of Hall, nor is there any evidence of unfairness, fraud, or inadequacy of price. In that case the transaction stands.

2. The attorney of Hall was his brother-in-law. No motive is shown for any fraud or deception by him or by those who acted in obtaining the power. They were his relatives and friends.

3. So far as appeared, Hall had not been placed under a committee, nor had he been pronounced insane by judicial decision, and if that had not been done, his contracts are valid, no undue advantage having been taken of him in obtaining them.

4. No complaint was made that the consideration was inadequate, or that it was not fully paid by the purchaser. And there was no allegation of fraud in obtaining the power, or in executing the grant.

[The other points of the case were also argued, but being comparatively unimportant, the argument, in the reporter's limited space, is not presented.]

For the defendant in error.-Some confusion exists, perhaps, at this day in the American decisions as to the effect of a deed of a bargain and sale made by a person non compos mentis. So far as it does exist, it has arisen from a passage in Blackstone's Commentaries, quoted on the other side; one of the very few errors to be found in that excellent book; but an error, certainly, nevertheless. The statement of the law made by Sir W. Blackstone, in the passage quoted, cannot be reconciled with what is affirmed in Thompson v. Leach, a solemn adjudication, made before his time, but of binding authority in it; reported alike by Salkeld, Carthew, and Comberback. That precedent was followed, before Blackstone's time, by Yates v. Boen, reported by Sir John Strange, a reporter of high character; and the statement of the great English commentator was not a true presentation of the law even in his day. His error has been pointed out in our own time, by Sir Edward Sugden, in his most accurate and masterly work on Powers; and though some American judges, as we have said, have been confused (as was not unnatural in view of the great and generally just respect paid to anything in the Commentaries of Blackstone), we find that when the point was raised in the Supreme Court of Pennsylvania, Chief Justice GIBSON, one of the vigorous judicial minds of America, took the distinction at once between a feoffment and a deed of bargain and sale; holding the latter absolutely void. He said:

'The authorities show distinctly that the feoffment and livery of a lunatic or madman are not void, but voidable. . . . So far the argument made for the defendant in error seems unassailable. The defect in it is that it fails to prove the deed of bargain and sale, by which he holds, to be equivalent in all respects to a feoffment. . . . At common law the feoffment of a madman, as shown by the argument, is only voidable. But his deed is absolutely void.'

But though Sir William misconceived the law as to the ability of a person who made a deed while in a state of lunacy, himself to set it aside, upon the recovery of his reason, he did not at all misconceive it, so far as related to the person's heirs or other persons interested after his death. For after stating that the old law had been that the lunatic, on recovery of his reason, might set up his former lunacy to avoid his acts, but that this, as respected the lunatic's ability himself to avoid his acts, had been apparently changed by later views (though not, as he intimates, upon very sensible reasons), he adds:

'And clearly the next heir or other person interested may, after the death of the idiot or non compos, take advantage of his incapacity and avoid the grant.'

Our case is exactly this one, where Sir William says that the lunatic's grant may be avoided.

Again.-If Blackstone's statement of the law were true, there is a distinction to be drawn between a deed and a power of attorney. The latter will be void when the former is not. Thus the deeds of infants are not void, but voidable. If the infant do not dissent within a reasonable time after coming of age the deed cannot be avoided. A warrant of attorney has, however, always been held absolutely void. The reason is stated in the first volume of the American Leading Cases.

As to the authorities cited on the other side, while we contend that the deed of a lunatic is absolutely void, we also admit that the privilege of asserting that it is void, is, like infancy, a personal privilege, and can only be enjoyed by the lunatic and those who claim under him. This distinction alone is sufficient to have decided the cases of Jackson v. Gumaer and of Ingraham v. Baldwin.

Chew v. Bank of Baltimore was a case of a bill filed in equity to set aside the power of attorney of a lunatic, and to declare certain sales of bank stock made under it fraudulent and void, and this case certainly shows that if we had brought an action in equity we might have succeeded. Here, as there, it is not shown that the heirs ever received any portion of the money arising from the sale.

Somers v. Pumphrey, in Indiana, is decided on the case of Crouse v. Holman, in the same State, and the latter evidently stands on the mistake of Blackstone, corrected by Sugden, as before shown.

The remaining cases cited are cases where a court of equity has decreed the specific performance of contracts notwithstanding great lapse of time. We do not dispute the law contained in them.

It is argued that prior to the issuing of a commission de lunatico, the acts of a lunatic are binding upon him, though it seems to be conceded that after that they are not. But the commission has no effect to render the madman more mad than he was before. It is his insanity that renders the act void. The commission may be prim a facie evidence of madness, sufficient to put one dealing with a lunatic upon his guard, and it might well be held that a commission issued was notice to all the world, and thereafter every act of a lunatic was void. But confinement within the walls of a madhouse, and chains, and uncontrollable frenzy, are notices equally clear and equally conclusive to every one doing business with such a lunatic, and shall he be bound by his acts because he has not the sanity required to procure the issuing of the commission?

If a man has no reason, there can be no 'assent of two or more minds,' which is essential to every contract. The p * 20 act performed by a person having no reason is absolutely void. It may not be apparent that the act was void until the lunacy is proved, but when it is proved to have existed when the act was done, then the act was void ab initio.

This observation, it may be added, if true, disposes of the suggestion, made below as here, that we should have proceeded in equity.

[The other assignments of error were then discussed in behalf of the defendant in error.]

Mr. Justice STRONG delivered the opinion of the court.

The prominent question in this case is, whether a power of attorney executed by a lunatic is void, or whether it is only voidable. The Circuit Court instructed the jury that a lunatic, or insane person, being of unsound mind, was incapable of executing a contract, deed, power of attorney, or other instrument requiring volition and understanding, and that a power of attorney executed by an insane person, or one of unsound mind, was absolutely void. To this instruction the defendant below excepted, and he has now assigned it for error.

Looking at the subject in the light of reason, it is difficult to perceive how one incapable of understanding, and of acting in the ordinary affairs of life, can make an instrument the efficacy of which consists in the fact that it expresses his intention, or, more properly, his mental conclusions. The fundamental idea of a contract is that it requires the assent of two minds. But a lunatic, or a person non compos mentis, has nothing which the law recognizes as a mind, and it would seem, therefore, upon principle, that he cannot make a contract which may have any efficacy as such. He is not amenable to the criminal laws, because he is incapable of discriminating between that which is right and that which is wrong. The government does not hold him responsible for acts injurious to itself. Why, then, should one who has obtained from him that which purports to be a contract be permitted to hold him bound by its provisions, even until he may choose to avoid it? If this may be, efficacy is given to a form to which there has been no mental assent. A contract is made without any agreement of minds. And as it plainly requires the possession and exercise of reason quite as much to avoid a contract as to make it, the contract of a person without mind has the same effect as it would have had he been in full possession of ordinary understanding. While he continues insane he cannot avoid it; and if, therefore, it is operative until avoided, the law affords a lunatic no protection against himself. Yet a lunatic, equally with an infant, is confessedly under the protection of courts of law as well as courts of equity. The contracts of the latter, it is true, are generally held to be only voidable (his power of attorney being an exception). Unlike a lunatic, he is not destitute of reason. He has mind, but it is immature, insufficient to justify his assuming a binding obligation. And he may deny or avoid his contract at any time, either during his minority or after he comes of age. This is for him a sufficient protection. But as a lunatic cannot avoid a contract, for want of mental capacity, he has no protection if his contract is only voidable.

It must be admitted, however, that there are decisions which have treated deeds and conveyances of idiots and lunatics as merely voidable, and not void. In Beverly's Case, which was a bill for relief against a bond made by Snow, a lunatic, it was resolved that every deed, feoffment, or grant, which any man non compos mentis makes, is avoidable, and yet shall not be avoided by himself, because it is a maxim of law that no man of full age shall be, in any plea to be pleaded by him, received by the law to stultify himself and disable his own person. A second reason given for the rule was, 'because when he recovers his memory he cannot know what he did when he was non compos mentis.' Neither of these reasons are now accepted, and the maxim no longer exists. There were other things ruled in Beverly's case, among which were these: that the disability of a lunatic is personal, extending only to the party himself, except that extends to privies in tenure, as lord by escheat, and privies in estate, as tenant in tail; but that privies in blood, as heirs or privies in representation, as executors or administrators might show the disability of the ancestor, or testator, or in testate. It was also resolved that acts done in a court of record were not avoidable even in equity. Lord Coke, if commenting on the case, remarked that 'as to others there is a great difference between an estate made in person and by attorney; for if an idiot, or non compos mentis, makes a feoffment in fee in person, and dies, his heir within age, he shall not be in ward, or if he dies without heir the land shall not escheat;. . . but if the feoffment is made by letter of attorney, although the feoffor shall never avoid it, yet after his death, as to all others, in judgment of law, the estate is void, and therefore in such case, if his heir is within age, he shall be in ward; or, if he dies without heir, the land shall escheat.' Such also is the rule as stated in Fitz Herbert's Natura Brevium. This is plainly a recognition of the principle that the letter of attorney of an idiot or lunatic is void, though he may not be permitted himself to assert its nullity. His heir, and all others, may. The doctrine is also asserted that as against the heirs of a lunatic his deed is invalid, and this, we think, has been steadily maintained in England.

In Thompson v. Leach, reported in Carthew, and in Comberbach, a clear distinction was taken between the feoffment of a lunatic taking effect by livery of seizin, and his deed of bargain and sale, his surrender, or grant. The former was held to be voidable only because of the solemnity of the livery, while the latter were held to be void. The case was ejectment brought by a lunatic's heirs, and the controlling question was whether his deed was only voidable, or whether it was absolutely void. The grantor had a life estate upon which were dependent contingent remainders, and he made a deed of surrender. If his deed was at any time effective before the contingency happened, it merged the tenancy for life, and destroyed the contingent remainders, and though the deed might afterwards be avoided by any means in law, yet the contingent remainders, being once extinct, could not be revived by any matter ex post facto. It was necessary, therefore, to determine whether the deed was a nullity or whether it was good until avoided. The court resolved that the deed was void, ab initio, because of the grantor's lunacy. It was said that 'there is a difference between a feoffment and livery made propriis manibus of an infant, and the bare execution of a deed by sealing and delivery thereof, as in cases of grants, surrenders, releases, &c., which have their strength only by executing them, and in which the formality of livery of seizin is not so much regarded in the law, and, therefore, the feoffment is not void, but voidable; but surrenders, grants, &c., of an idiot are void ab initio.' The case is a leading one, and it is in some respects more fully reported in Salkeld. There it appears not only that the distinction mentioned is recognized, but that Holt, C.J., declared the deed of a person non compos mentis to be void; that if he grants a rent, and the grantee distrains for arrears, he may bring trespass; that his letter of attorney, or his bond, are void, because, as he stated, the law had appointed no act to be done for avoiding them. Thompson v. Leach has never been disturbed, and, so far as we know, has never been doubted. It was followed by the case of Yates v. Boen, in Strange, which was an action of debt upon articles. The defendant pleaded 'non est factum,' and offered to give lunacy in evidence. Upon the authority of Thompson v. Leach, and Smith v. Carr, decided in 1728, the evidence was received.

The doctrine of Thompson v. Leach was asserted also in Ball v. Mannin, decided in the House of Lords in 1829. In that case the sole question presented was, by agreement of counsel, whether the deed of a person non compos mentis was invalid at law. In the inferior court the judge had charged the jury that 'to constitute such unsoundness of mind as should avoid a deed at law, the person executing such deed must be incapable of understanding and acting in the ordinary affairs of life,' and refused to charge that the unsoundness of mind must amount to idiocy. The ruling was sustained by the Court of King's Bench in Ireland, and, on writ of error, by the Exchequer Chamber. The case was then removed to the House of Lords, and the judgment was affirmed. It is, therefore, the settled law of England, and it has been since the decision in Thompson v. Leach, that while the feoffment of an idiot, or lunatic, is only voidable, his deed, and especially his power of attorney, are wholly void. And now by act of Parliament, 7th and 8th Vict., ch. 76, § 7, his conveyance by feoffment, or other assurance, is placed on the same footing with his release or grant.

Sir William Blackstone, it is true, appears to have overlooked the distinction made in Thompson v. Leach; and in his Commentaries, while admitting that the law was otherwise prior to the reign of Henry VI, asserted the doctrine that the conveyances of idiots and persons of non sane memory, as well as of infants and persons under duress, are voidable, but not actually void. But Sir Edward Sugden notices this statement with disapproval. His remarks are as follows: 'When Beverly's case was decided it was holden that deeds executed by lunatics were voidable only, but not actually void, and therefore they could only be set aside by special pleading, and by the rule of law the party could not stultify himself. And Mr. Justice Blackstone, following the old rule, has laid down that deeds of lunatics are avoidable only, and not actually void. But in Thompson v. Leach the distinction was solemnly established that a feoffment with livery of seizin of a lunatic, because of the solemnity of the livery, was voidable only; but that a bargain and sale, or surrender, &c., was actually void. This, therefore, was the ground of the decision in Yates v. Boen. When the Chief Justice remembered that an innocent conveyance, or a deed, by a lunatic, was merely void, he instantly said, that non est factum might be pleaded to it and the special matter be given in evidence.'

In this country there has been inconsistency of decision. Some courts have followed Mr. Justice Blackstone, and Beverly's Case, without noticing the distinction made in Leach v. Thompson, Yates v. Boen, and other English cases. Such are the decisions cited from New York, beginning with Jackson v. Gumaer, and those relied upon made in other States. Nowhere, however, is it held that the power of attorney of a lunatic, or any deed of his which delegates authority but conveys no interest, is not wholly void. And in Pennsylvania, in the Estate of Sarah De Silver, it was directly ruled that a lunatic's deed of bargain and sale is absolutely null and void, and the distinction between his feoffment and his deed was recognized. So also in Rogers v. Walker, which was an ejectment by a lunatic, it was held that a purchaser from her had no equity to be reimbursed his purchase-money, or the cost of improvements, and Chief Justice Gibson said: 'Since the time of Thompson v. Leach, it has been held that a lunatic's conveyance executed by sealing and delivery only is absolutely void as to third parties, and why not void as to the grantor? It was said to be so for the very unphilosophical reason, that the law does not allow him to stultify himself,-an early absurdity of the common law, which was exploded with us by Bensell v. Chancellor.'

The doctrine that a lunatic's power of attorney is void finds confirmation in the analogy there is between the situation and acts of infants and lunatics. Both such classes of persons are regarded as under the protection of the law. But, as already remarked, a lunatic needs more protection than a minor. The latter is presumed to lack sufficient discretion. Reason is wanting in degree. With a lunatic it is wanting altogether. Yet it is universally held, as laid down by Lord Mansfield, in Zouch v. Parsons, that deeds of an infant which do not take effect by delivery of his hand (in which class he places a letter of attorney), are void. We are not aware that any different rule exists in England or in this country. It has repeatedly been determined that a power of attorney made by an infant is void. So it has been decided in Ohio, in Kentucky, in Massachusetts, and in New York. In fact we know no case of authority in which the letter of attorney of either an infant or a lunatic has been held merely voidable.

It must, therefore, be concluded that the Circuit Court was not in error in instructing the jury that a power of attorney executed by an insane person, or one of unsound mind, is absolutely void.

This disposes of the only serious question in the case. There are other assignments of error, but they may be dismissed with brief notice. The only one which has any plausibility, and which needs particular notice, is that which complains of the refusal of the court to permit a medical witness to give his opinion respecting the sanity of John Hall at the time when he signed the power of attorney, basing his opinion upon the facts and symptoms stated in the depositions read at the trial. The witness was, however, allowed to give his opinion upon the testimony adduced by the plaintiffs. The record does not show fully what were the facts stated in the depositions, nor whether they were established by uncontradicted evidence. It may be, therefore, that, by the form in which the question was put, the witness was required not merely to give his opinion upon facts, but to ascertain and determine what the facts were. This of course was inadmissible. The rule is, as laid down in Greenleaf's Evidence, 'If the facts are doubtful and remain to be found by the jury, it has been held improper to ask an expert who has heard the evidence what is his opinion upon the case on trial; though he may be asked his opinion upon a similar case hypothetically stated.' The question asked was: 'From the facts stated in these depositions, and the symptoms stated, what, in your opinion, was the state of John Hall's mind on December 27th, 1852, as to sanity or insanity?' It was to this the plaintiffs objected. But the witness gave his opinion, founded on all the testimony adduced by the plaintiffs tending to show insanity, and that opinion was that Hall was capable of doing business and of executing a power of attorney. He could have said no more had he been allowed to consider the evidence given by the defendants as well as that given by the plaintiffs. The defendants, therefore, received no possible injury from the ruling of the court. Hence this assignment cannot be sustained.

There remains one other exception to be considered, for the proper understanding of which reference must be made to the plaintiffs' title.

That the grants and confirmations relied on by the plaintiffs were effectual to vest in Hall the title to the land in dispute admits of no question, and it is not denied by the plaintiff in error. He claimed under Hall. But when this title had been given in evidence by the plaintiffs below, with proof that they were the children and heirs of Hall, and when they had rested in chief, the defendants asked the court to direct a verdict in their favor for the reason, among others, that under the State statute of March 5th, 1864, it was incumbent upon the plaintiffs, inasmuch as their action had not been commenced within a year after its passage, to show an actual possession in themselves or their ancestors within five years next before the commencement of the action, which they had failed to do. The court refused the direction, and correctly. At the time when the request was made it did not appear that the actual possession of the land had not been enjoyed by the plaintiffs within five years next before the action was brought, and, therefore, they were presumed to have had such possession, in the absence of evidence of an adverse possession, and no such evidence has been given. The 9th section of the act of April 22d, 1850, which defined the time for commencing civil actions, expressly declares that in every action for the recovery of real property such a presumption shall be made in favor of one establishing a legal title. In addition to this three of the plaintiffs were minors when the title descended to them, and continued minors until within less than five years before the suit was brought, and one was a minor until 1872. The period of their disability was, therefore, not to be included in the statutory period of limitation.

It is probable that when the request to direct a verdict for the defendants was made, the supplementary act of April 4th, 1864, was overlooked. Certainly it has not been argued here that the plaintiffs below were affected by the act of March 5th of that year. But it is claimed the plaintiffs were barred by the statute of limitations of 1855. That, however, is not before us. The Circuit Court was asked to give no instruction in regard to it, and none was given. Besides, so far as the record exhibits, there was no evidence of continued adverse possession during the five years next preceding the commencement of the suit.

There is nothing more in the case that requires particular notice; nothing which would justify our awarding a new trial.

title: Dexter v. Hall/Opinion of the Court


text: Talk:Dexter v. Hall/Opinion of the Court


text:
The John Griffin

APPEL from the Circuit Court for the Eastern District of New York; the case being thus:

The act of Congress of March 2d, 1799, 'to regulate the collection of duties on imposts and tonnage,' enacts by its 50th section, 'that no merchandise shall be unladen from vessels coming from any foreign port but in open day; that any person who shall be concerned in thus unlading them, shall forfeit and pay severally, for each offence, $400, and be disabled from holding any office of trust or profit under the United States for a term not exceeding seven years, and that when the value of the goods unladed exceed $400, the vessel, tackle, apparel, and furniture shall be subject to seizure and condemnation.'

The same statute, after directing how seizures for violations of it shall be made, enacts:

'SECTION 71. That in actions, suits, or informations to be brought where any seizure shall be made pursuant to this act, if the property be claimed by any person, in every such case the onus probandi shall be upon the claimant.'

With this statute in force, the United States libelled in the District Court at New York the bark John Griffin, owned by one W. Downey and three other persons, on an allegation that her officers had aided in introducing segars of the value of more than $400 into New York City, from Cuba, A.D. 1868, in violation of the law.

There did not seem to be any reason to doubt that the segars were brought into the city by night from Cuba without paying duty, and that this was done with intent to defraud the government. And the only question in the case was whether Downey, the master and part owner of the vessel, had participated in this fraud by bringing the segars on his vessel.

The segars were seized in a room where they were stored in New York, and the owner of the segars, one Albren, was the principal witness for the government. His testimony amounted to this: that being in Havana, and desiring to get a large lot of segars through to New York without payment of duty, he met in that city Captain Downey, whose vessel, the John Griffin, was then lying at Matanzas taking in or waiting for cargo; that he suggested the matter to Downey, who neither accepted nor declined, but that a few days afterwards he received a letter from a carman at Matanzas saying if he would send the segars down, the carman would see them all right, which was done; that in a very few days after this he received in Havana a letter in these words,-the letter itself, which had been found by the custom-house officers in Albren's writing-desk before they made the seizure of the segars, being produced by them in evidence,--

MATANZAS, September 23d, 1868.

MR. JOHN ALBREN.

DEAR SIR: Your twenty-two boxes, trunk, and barrel package are all on board safe. I wish your boxes were all hid'en, the same as my sugar boxes. They are too easily distinguished, but I think they will be all right.

Yours, respectfully,

W. DOWNEY.

Albren further testified that shortly after the vessel arrived in New York the segars were delivered at a place designated or agreed on between him and Downey, and that he paid Downey over $3000 for his services in the matter. He mentioned the place where he met and paid Downey, and stated that a man named Morlina was present when this payment was made.

Morlina's testimony corroborated that of Albren as to the receipt of the money by Downey. He testified that he went with Albren and was present when Downey, whom he knew, and Albren met on the street and retired to an office in South Street; that he saw Albren hand Captain Downey a bundle of money, but did not know how much; that it was a bundle of paper money.

To rebut this apparently good case against the vessel, Downey himself came forward. Efforts were also made to impeach the veracity of Albren.

Downey swore positively that the segars were never on board his vessel with his knowledge or consent, and to his belief that they were not there at all. He admitted an interview with Albren in Havana, or somewhere else, in regard to a trunk and barrel package. He equivocated about the authorship of the letter produced by Albren, saying that he 'could not say that it was written by him,' 'that it might have been written by him,' 'that it looked like his handwriting.' He nowhere denied that he wrote it. He attempted to explain it by saying that it might possibly have referred to his having seen these things on board another vessel, not his, as a service to Albren, to let him know they were there, but with no knowledge that they were to be landed without paying duty. But he did not speak of this with certainty, nor did he give the name of the other vessel on which he might have seen the segars. The receipt of the money from Albren he wholly denied.

As to Albren's character for truth and veracity, four witnesses swore that his reputation was bad; but against two of these, proceedings had been begun for frauds on the revenue, and Albren was to be a witness in them. Several other persons testified that they had known and dealt with him, and that, so far as they knew, his character for truth and veracity was good.

A more striking evidence, perhaps, against him on this point, consisted in the fact that after these segars had been seized by the custom-house officers, and proceedings of condemnation had been begun against the vessel, Albren went with Downey to the office of one McGowan, proctor of the claimants, to make an affidavit to subserve their case. Being questioned by the proctor as to whether he had shipped or received any goods by the John Griffin, he said that he had not. The statement was then reduced to writing by McGowan thus, it not, however, having been sworn to nor signed by Albren:

'Deponent further says that he did not receive from on board the said bark John Griffin, at any time during the year 1868, any segars whatever; and that no segars whatever came consigned to deponent in said vessel at any time during the year 1868.'

McGowan's draft of the intended affidavit being produced on the hearing of the present suit, and he having testified to its being what was said, Albren was called on to explain it. And this was the explanation:

'When I visited McGowan's office, I went first time with the captain. He questioned me whether I shipped or received any goods by the John Griffin. I told him not. He continued writing, and after he got through he read it to me-the statement which he wanted me to sign-and I refused to sign. Then he told me that he would give me $500 himself; not the captain, but himself, after the trial was over. I told him these $500, I should like to have them before the trial, and for my evidence of not having shipped or received any goods by the bark John Griffin only.'

The District Court rendered a decree of condemnation, which was reversed in the Circuit Court; and the United States, dissatisfied with this latter decree, appealed to this court.

Mr. Donohue, for the appellant, argued that this attempt to confiscate a valuable vessel rested wholly on the testimony of a convicted smuggler, a man so base that he now unblushingly avows that for $500 he was, a short time since, ready to swear to what he declares was a gross lie. Such testimony, the learned counsel contended, was not fit to be received in any court.

Mr. C. H. Hill, Assistant Attorney-General, contra, contended that the evidence offered in behalf of the government presented a prim a facie case, which the testimony of the claimants had failed to overcome; and that in such a case sentence of condemnation necessarily followed.

Mr. Justice MILLER delivered the opinion of the court.

title: The John Griffin


text: Talk:The John Griffin

title: Talk:The John Griffin


text:
The John Griffin/Opinion of the Court

Upon the case as made out by the government, in the absence of any rebutting evidence, no court or jury, we think, could hesitate in finding that Downey had been guilty of aiding in the fraudulent introduction of the cigars without payment of duty. The case as thus made amounts to some thing more than the probable cause, which, by section seventy-one of the act of 1799, throws the onus probandi on the claimant of the vessel. It is a clear prim a facie case, and both by the statutes and the ordinary rules of evidence required of the claimant such testimony as should satistactorily rebut the presumption of guilt which it raised.

The principal reliance of the claimants for this is upon the testimony of Downey, who attempts to explain his letter, and upon an effort to impeach the character of Albren for veracity. But the whole of his explanation and account of the letter and its purpose is vague, unreasonable, and altogether unsupported by any other testimony, or by reference to anything which would confirm it. While every word and line of the letter is in exact harmony with Albren's account of the transaction, and must be regarded as decisive as to the relative credibility of the two stories told by the witnesses.

In reference to the receipt of the money also, while Downey flatly denies it, and thus is in direct conflict with Albren, the latter is supported by Morlina, who tells a consistent story, and whose veracity is unimpeached.

It is not unimportant in this connection to consider also that Downey swears under the influence of being owner to the extent of one-fourth of the vessel, and that the charge against which he testifies is an implication of bad faith in him towards the other joint owners, and a fraud and a crime against the government, for which, if guilty, he is liable to severe punishment.

The attempt to impeach Albren's character rests on the testimony of four witnesses. Two of these were parties to judicial proceedings alleging against them similar acts of fraud on the revenue, and Albren had been, or was expected to be, a witness against them. On the other hand, several witnesses are called who testify to his general good character for truth and veracity. In this respect we do not think he has been successfully impeached.

As to the statement introduced in evidence, as taken down in the office of the claimants' attorney, purporting to be made by Albren, though not signed or sworn to, it seems to us that his own account of it is probably correct, namely, that it was an attempt to commit him before the trial to a statement which would exonerate Captain Downey, and that the offered bribe failed, probably because neither party would trust the other by signing the paper or paying down the money first.

We think that a case is made out against the vessel, and that the decree of the Circuit Court must be REVERSED, and a judgment rendered in favor of the United States in that court.

DECREE ACCORDINGLY.

title: The John Griffin/Opinion of the Court


text: Talk:The John Griffin/Opinion of the Court


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Page:Dictionary of National Biography volume 59.djvu/32

 de la Traïson et Mort de Richart deux, ed. Engl. Hist. Soc.; Nichols's Royal Wills; Godwin, De Præsulibus Angliæ, 1742; Wharton, De Episcopis Londoniensibus et Assavensibus; Newcourt's Repertorium Parochiale Londoniense; Hennessy's Novum Rep. Eccl. 1898; Le Neve's Fasti Ecclesiæ Anglicanæ, ed. Hardy; Jones's Fasti Ecclesiæ Sarisberiensis; Register of Bishop Stafford, ed. Hingeston-Randolph; Weever's Ancient Funerall Monuments; Wylie's Hist. of Henry IV (where most of the facts of Walden's biography are brought together); Hook's Archbishops of Canterbury; Milman's Hist. of St. Paul's.]

WALDEN, THOMAS {d. 1430), Carmelite. [See .]

WALDHERE or WALDHERI (fl. 705), bishop of London, succeeded Bishop [q. v.], who died in 693, and about 695 gave [q. v.], king of the East-Saxons, the monastic habit, receiving from him a large sum for the poor. He was present at Sebbi's death. He received from Swaebraed, king of the East-Saxons, a grant dated 13 June 704 (Codex Diplomaticus, No. 52). In a letter written about the middle of 705 to [q. v.], archbishop of Canterbury, he speaks of a conference that was to be held in the following October at Brentford between [q. v.], king of the West-Saxons, and his chief men, ecclesiastical and lay, and the rulers of the East-Saxons, to settle certain matters of dispute. He and [q. v.], bishop of the West-Saxons, had arranged that the meeting should be peaceful, and he was desirous of acting as a peacemaker at the conference; but the archbishop had decreed that no one should hold communion with the West-Saxons so long as they abstained from obeying his order relating to the division of their bishopric. Waldhere therefore laid his desire before Brihtwald, deferring to his decision. He must have died before the council of Clovesho in 716, at which his successor, Ingwald, was present. The grant to Peterborough attested by him and Archbishop [q. v.] is an obvious forgery (Anglo-Saxon Chronicle, an. 675, Peterborough).

WALDIE, CHARLOTTE ANN, afterwards (1788–1859), author of ‘Waterloo Days,’ born on 28 Sept. 1788, was second daughter of George Waldie of Hendersyde Park, Roxburghshire, by his wife Ann, eldest daughter of Jonathan Ormston of Newcastle-upon-Tyne. In June 1815 she was, with her brother John and sister Jane (see below), on a visit to Brussels. She wrote an account of her experiences which was published in 1817 under the title of ‘Narrative of a Residence in Belgium, during the Campaign of 1815, and of a Visit to the Field of Waterloo. By an Englishwoman’ (London, 8vo). A second edition was published in 1853 as ‘The Days of Battle, or Quatre Bras and Waterloo; by an Englishwoman resident in Brussels in June 1815.’ The latest edition, entitled ‘Waterloo Days,’ is dated 1888 (London, 8vo). The narrative is of great excellence, and takes a high place among contemporary accounts by other than military writers. In 1820 Charlotte Waldie published anonymously, in three volumes, ‘Rome in the Nineteenth Century’ (Edinburgh, 12mo); second and third editions appeared respectively in 1822 and 1823. A fifth edition, in two volumes, was published in 1852, and a sixth in 1860. The book is largely quoted by Mr. A. J. C. Hare, and is still useful to travellers.

On 22 Aug. 1822 Charlotte married Stephen Eaton, banker, of Stamford, of Ketton Hall, Rutland, who died on 25 Sept. 1834. She died in London, at Hanover Square, on 28 April 1859, leaving two sons and two daughters.

Thomson of Edinburgh painted a miniature of her at eighteen years of age. Yellowlees painted an unsatisfactory portrait in 1824, and Edmonstone a half-length in 1828. These pictures were at Hendersyde Park in 1859.

Other works by Mrs. Eaton are:
 * 1) ‘Continental Adventures,’ a story, London, 1826, 3 vols. 8vo.
 * 2) ‘At Home and Abroad,’ a novel, London, 1831, 3 vols. 8vo.

Her youngest sister,, afterwards (1793–1826), author, born in 1793, showed a taste for painting at an early age, and studied under Nasmyth. She painted many pictures, mostly landscapes inspired by the beauty of the scenery surrounding her home. The figures in three or four of them are the work of Sir [q. v.] As early as 1819 she exhibited at Somerset House a picture called ‘The Temple at Pæstum’ (Addit. MS. 18204). Twenty-eight of her pictures were at Hendersyde Park in 1859, but many had been removed at the time of her marriage, and remained in the possession of her husband. In September 1816 she accompanied her sister Charlotte, with whom she has often been confused, and her brother John abroad, returning to England in August 1817. The result was a book entitled ‘Sketches descriptive


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United States v. Kelly (82 U.S. 34)

THIS was an appeal by the United States from a judgment of the Court of Claims, in favor of one Kelly, lately a soldier in the army of the United States, for an unpaid balance of bounty money.

The claim was denied by the pay department, on the ground that the bounty had been forfeited by desertion The case as found by the court was, that the petitioner had deserted, but was restored to duty by order of his department commander, without trial, on condition that he make good the time lost, about two months; that he complied with the condition, and was honorably discharged at the expiration of his term of service.

Upon this case, Mr. N. P. Chipman, for the soldier, and in support of the ruling below, made a very full examination of the acts of Congress, and on an exhibit of their provisions, argued that there was nothing in any of them prohibiting the payment of bounty money to a soldier who had deserted, irrespectively of the circumstances of his desertion; that desertion, being sometimes a mere technical desertion, and without cowardice or disaffection to the service, did not per se so taint the status of the soldier, as to render him necessarily and without any judicial proceedings absolutely disqualified to receive bounty; nor was it under every circumstance such an act that his contract with the government was wholly and ipso facto dissolved, and that he could never return, and by performance of service properly thereafter-which service should be accepted-set up a condonation of his offence. The counsel argued that any other view would lead to the worst consequences in an army of a million of troops, called out as our troops were during the rebellion; troops comprising officers and men of inexperienced years; both officers and soldiers unacquainted with the laws of war; the soldiers especially unacquainted with the rigors of discipline, unused to the restraints which capricious or incompetent superior officers could enforce; not schooled nor proof against the evil influences of depraved associates, and liable, under some physical suffering or discouragement, or inadvertence, to commit an offence the gravity of which was not comprehended, and the penalty for which had not been understood or appreciated. The counsel fortified his views as to the effect of desertion in such a case as the one before the court by references to the third edition, published in 1868, of the Digest of the present Judge Advocate General of the United States, the Hon. Joseph Holt, Esq., whom he characterized as 'the most eminent and able writer on military law that this country had ever produced.'

Mr. C. H. Hill, Assistant Attorney-General, contra, submitted the case on the record.

The CHIEF JUSTICE delivered the opinion of the court.

title: United States v. Kelly (82 U.S. 34)


text: Talk:United States v. Kelly (82 U.S. 34)


text:
United States v. Kelly (82 U.S. 34)/Opinion of the Court

We do not think that, under the circumstances of the present case, the bounty was forfeited. The able lawyer who fills at present the post of Judge Advocate General, in a case similar to the present, held that 'the honorable discharge of the deserter was a formal final judgment passed by the government upon the entire military record of the soldier, and an authoritative declaration by it that he had left the service in a status of honor; that as such, it dispensed altogether with the supposed necessity that the soldier must obtain bounty by removal, by order, of the charge of desertion from the rolls, and amounted of itself to the removal of any charge or impediment in the way of his receiving bounty.' With this opinion we entirely concur.

JUDGMENT AFFIRMED.


text: Talk:United States v. Kelly (82 U.S. 34)/Opinion of the Court


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Smoot's Case

APPEAL and cross-appeal from the Court of Claims; the case being thus:

On the 5th of February, 1864, Smoot entered into two contracts with the War Department through Eakin, quartermaster; one to deliver within forty days 2500 cavalry horses at St. Louis, and the other to deliver within fifty days 2000 like horses at Chicago, at the government stables in each place; of certain qualifications set forth in the contracts, and subject to the inspection provided for in one article of the contract, which was as follows:'It is agreed that the horses, upon being delivered, shall be examined and inspected without unnecessary delay, by a person or persons appointed by the United States, and after such inspector shall have certified that they are in all respects as contracted for, and fully equal to the specifications aforesaid, they shall be received and become the property of the United States; and all such horses as may be condemned and rejected by said inspectors, shall be removed from the government stables within one day after the contractor shall have been notified of said rejection.'

Payment for the horses was to be made on completion of the contract, should Congress have made an appropriation for that purpose; otherwise as soon thereafter as funds might be appropriated.

During the existence of the contracts Smoot was possessed of means and credit to comply with the stipulations on his part, and he and his agents went to Chicago and other parts of the West to make, and did make, all necessary arrangements to carry them out, except the actual procuring of the horses.

At the time the contracts were entered into, and long prior thereto, the mode of inspection of horses purchased by the government had been for horses to be presented and immediately examined in the presence of the owner, and if satisfactory, they were accepted, and if unsatisfactory, they were rejected and returned to the owner without delay, expense, or blemish.

By an order, however, dated on the same day as these contracts, but not promulgated in Chicago or St. Louis until the 1st of March, or known to the defendant till then, the government ordered another and different mode of inspection from what had been the practice and custom of the government theretofore. This new order ran thus:

'Each horse shall be placed in the inspection yard twenty-four hours before inspection, after which time, every person, except the inspector and his assistants, are to leave the yard, not to re-enter it or handle the horses until the inspection and branding has been completed.

'All horses presented that are manifestly an attempt at fraud on the government because of any incurable disease or any distemper whatever, shall be branded on the left shoulder with the letter R.

'Horses that are rejected for being under age, in poor condition, or temporarily injured by transportation or otherwise, shall be lightly branded on the front hoof, near the coronet, with the letter R, not to exceed three-quarters of an inch.

'Any horse once rejected, that is presented to the government without notice of that fact, shall be considered and deemed fraud upon the government, and branded on the left shoulder as fraud.

'When horses are doubtful before branding, they may be kept three or four days under guard, at the expense of the contractor, and then disposed of by branding or otherwise, as the inspector may determine.

'No mares will be accepted.'

At the time the contracts were entered into, and for a long time prior thereto, the usual course of business in filling contracts of this kind, had been for the contractor to buy his horses subject to government inspection, and one effect of the order of the new rules of inspection was to create a change in this course of business, and, therefore, no horses could be purchased by contracts subject to the new inspection.

Another effect was to impose upon the contractors considerable risk, in consequence of the horses being injured by kicks and bruises; by contagious diseases; by loss of identity, in putting the animals with other parcels of horses, so that in the event of rejection the same animals could not be returned; by the expense of keeping the animals during the four days; by injury which might occur to them from being branded by hot iron; the branding of a rejected horse in the manner prescribed by the new order greatly lessening his market value.

Upon ascertaining the effect produced by the new order of inspection, Smoot caused application to be made at the office of the bureau of cavalry, in Washington, for a modification of it, and repeatedly offered to go on and fill and contracts if the objectionable features of the order should be removed. The chief of the bureau was then absent. The next officer in rank referred the matter to the chief, who was expected to be in Chicago soon to decide the matter there. The chief of the cavalry did soon after arrive in Chicago, and the matter was presented to him by several other contractors who were in the same position as Smoot, but the chief decided not to revoke or modify the order. Neither Smoot nor his agent saw the chief of the cavalry in Chicago, but his decision was communicated to Smoot.

Smoot was able and willing to perform his contract by delivering the horses within the time prescribed by it, subject to the inspection prescribed by the contract, but was unwilling to deliver any horses subject to the inspection required by the new order. He did not possess any horses in Chicago, nor tender any to the government at that place, nor apply there to the chief of the cavalry bureau to waive the inspection ordered; but he possessed ample time and means for procuring horses, and he regarded the order as a renunciation by the government of its agreement.

So far in regard to the horses deliverable at Chicago.

The same facts existed as to the contract for St. Louis as to the contract for Chicago, except that the new order was not enforced at St. Louis as against contracts dated prior to its promulgation. Of this fact, however, Smoot had no knowledge, but believed that the order was enforced there, as well as in Chicago. He did not ask the inspecting officers in St. Louis anything about the matter, and did not attempt to transport horses to St. Louis, in accordance with his contract.

Smoot not fulfilling his contract was arrested by the government, under an act of Congress passed in the exigencies of the rebellion, fined $10,000, and put into Fort Delaware for a wilful neglect of duty. He was afterwards, however, on an examination of the case by the Judge Advocate General released.

The Court of Claims having found a case essentially as above, and that the fair profits which Smoot would have made on the 2000 horses to be delivered at Chicago, if he had been allowed to perform his contract according to its terms, would have been $10 a horse, gave him on that contract $20,000.

On the St. Louis contract, the court decided in favor of the government. In the Chicago contract the government appealed; in the St. Louis one, Smoot.

Mr. B. F. Butler, for the claimant, Smoot:

The findings in this case are so far different from those in United States v. Wormer, as to warrant us bringing it before the court for consideration.

1st. In regard to the contract for Chicago; the appeal by the United States. The question is whether the new order of the government, so onerous and impracticable of execution as to have rendered the performance of the contract impossible by Smoot, is, in law, a breach of the contract on the part of the government, so as to render the United States liable for such damages as may be proved to be sustained by the contractor; damages which the court below have found to be $20,000.

There needs neither citation of authorities nor argument to prove, if one party to a contract, by his own act, interposes and enforces onerous conditions upon the manner of the performance of a contract not contemplated by the other party thereto at its inception, and refuses to permit its performance unless those conditions are complied with, that a breach of the contract is thus made by the party so refusing, and he is liable to the party capable and willing to perform on his part, not only for all that he has lost in attempting to perform, but for all the fair profits he would have made in its performance.

Neither the government nor an individual can be permitted to alter any essential element of a contract after it has been entered into a fortiori, when, as in the case at bar, the conditions so imposed render the performance of the contract impossible.

In Wormer's case but two facts were found bearing on this point: first, the contract; second, the order of inspection; and the court was asked, as a matter of law, to infer, as did the court below, that the regulations of the inspection were 'unreasonable.' This clearly was a matter of fact, and not of law. The order of inspection could not be known to the court to be unreasonable as a matter of fact. The case was silent on that subject. It did not appear in that case even that, by the new order, there had been any substantial change from the former custom and practice of the government in the inspection of horses, or that the changes, if any had been made, bore onerously on the contractors.

Now, in this present case, the order of inspection was found to be impracticable of execution, so that at St. Louis it was not enforced. It was relaxed as to the only other contractor who did perform his contracts.

2d. As to the contract for St. Louis; or the appeal by Smoot. This stands upon a precisely similar contract in all material provisions as the other. The distinguishing fact, upon which it would seem that the court below must have found against Smoot, was, that he did not apply at St. Louis for a modification of the order of inspection, nor buy and transport to St. Louis any horses in fulfilment of the contract. The only question of law, if the court sustain our views in the case of the contract at Chicago, which can arise here, is whether, under the facts stated, Smoot was bound to tender horses at St. Louis, or apply there for the disobedience of the order of inspection. The case shows that the order was suspended by the subordinate officers there as to another contractor; but it also shows that Smoot applied to the War Department for its relaxation, and was referred to the chief of the cavalry bureau at Chicago for his answer, and there learned that it would not be modified or relaxed. And no reason, in fact or law, is found why it should be suspended at St. Louis if not in Chicago. Was Smoot, then, bound to apply at St. Louis in expectation that the order would be there disobeyed? This was an order from the War Department, solemnly promulgated for the direction of the whole government in this regard. He had applied to that department, been referred to the chief officer of the proper bureau for his answer, and had received it. Could he then, in law, be compelled to apply at St. Louis for a suspension of the order by the subordinates there? Had he not a right to suppose that the order, being a general one, would be generally enforced where no reason appeared for the exception?

If, then, he was not obliged to apply for a modification of the order at St. Louis, would the law compel him to put himself to great expense to attempt the impossibility of performing his contract there?

Mr. G. H. Williams, Attorney-General, Mr. C. H. Hill, and Mr. W. McMichael, Assistant Attorneys-General, for the United States, argued that the case was not distinguishable from United States v. Wormer; which might have been decided on the ground that there was no tender, nor any evidence even that Wormer had any horses; a position which certainly disposed of Smoot's claims in both cases here.

Reply. Of what use was an actual tender? If A. contract to build a brick house for B., and B., when A. is getting ready to build it, gives him notice that he will not have any such house on his ground, nor any house but a stone one, is A. bound to cart bricks to B.'s land and insist on putting up the brick house? In the present case the refusal to modify the government order was a sufficient refusal. After this refusal, why was Smoot bound to put himself to the trouble and expense of driving 2000 horses from all parts of the West to the city of Chicago, only to be there turned away, ad vana lex neminem cogit?

Mr. Justice MILLER delivered the opinion of the court.

title: Smoot's Case


text: Talk:Smoot's Case

title: Talk:Smoot's Case