text:
The Merrimac (81 U.S. 199)

APPEAL from the Circuit Court for the District of Louisiana, in a case of collision condemning the Merrimac for damages done to the Gladiator.

Mr. J. Hubley Ashton, for the appellants; Mr. Conway Robinson, contra.

Mr. Justice CLIFFORD stated the facts, and delivered the opinion of the court.

title: The Merrimac (81 U.S. 199)


text: Talk:The Merrimac (81 U.S. 199)

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

title: Talk:The Merrimac (81 U.S. 199)


text:
The Merrimac (81 U.S. 199)/Opinion of the Court

Vessels engaged in commerce are liable for damage occasioned by collision by reason of the negligence, want of care, or skill on the part of those intrusted with their navigation, or on account of the complicity, direct or indirect, of their owners. Owners appoint the master and employ the crew, and consequently the owners are held responsible for the conduct of the master and crew in the management of the vessel.

Damages were claimed in the libel in this case, which was filed in the District Court by the owners of the steamtug Gladiator, to recover compensation for injuries the tugboat received on the eleventh of January, 1867, by a collision which occurred on that day in the Mississippi River at the Southwest Pass, between the Gladiator and the steamship Merrimac, of the burden of two thousand tons, in tow of two tugboats, to wit, the Calhoun, of five hundred tons, lashed to her starboard side, and the Harry Wright, of the same tonnage, lashed to her port side. They instituted the suit in rem against the steamship and the two tugs which had her in tow, and they charged in the libel that the damage to the Gladiator was done by the three steamers made respondents in the libel. Service was made by seizing the three respondent steamers, and the respective owners of the same appeared and filed separate answers. By leave of court a bond for value was given in each case, and each of the respondent steamers was released when the bond for value was filed. Testimony was taken on both sides and the parties went to hearing, and the District Court entered a decree dismissing the libel, and the libellants appealed to the Circuit Court, where the parties were again heard, and the Circuit Court affirmed so much of the decree as dismissed the libel as to the two steamtugs, but reversed the decree as to the steamship, and pronounced for damages as against her in favor of the libellants.

Courts, under such circumstances, may estimate the damages without a reference, or they may send the cause to a commissioner for that purpose, in the exercise of their discretion. Pursuant to that rule the Circuit Court estimated the damages without a reference, and found the amount to be four thousand six hundred and ninety-seven dollars and forty cents, with five per cent. interest from the time the libel was filed in the District Court. Whereupon the owners of the steamship appealed to this court, and the only question presented is whether the decree of the Circuit Court awarding damages to the libellants against the steamship is correct, as none of the other parties have appealed.

By the pleadings and evidence it appears that the steamtug of the libellants was made fast to the larboard side of the ship Celuta, bound to the port of New Orleans, and which, in endeavoring to pass up the river, had grounded some twelve hours before on the bar of the Southwest Pass. Her master had employed the Gladiator and the steamtug Switzerland, which was lashed to the starboard side of the Celuta, to assist the crew of the ship in getting her over the bar, and at the time of the collision these three vessels, lashed together in the manner described, were lying on the bar, the port side of the Gladiator being at the distance of seventy to seventy-five feet from a certain buoy indicating the place on the bar where was a certain 'wreck' which entirely obstructed navigation. Under these circumstances the Gladiator was unable to move, as she was lashed to the ship Celuta and the ship was aground on the bar, and it was while the Celuta and her two steamtugs were in that situation that the steamship Merrimac and the two steamtugs which had in her tow, also bound to New Orleans, came up and attempted to pass between the Gladiator and the buoy which indicated the location of the wreck, and the pleadings and evidence show that the steamtug Calhoun was lashed to the port side of the steamship, and having a considerable list to port her starboard guard was elevated and passed over the rail of the Gladiator, striking the latter vessel with great violence, raking her from stem to stern, and carrying away all her upper works. By the collision the cabin, cook-house, pilot-house, and engine-room of the Gladiator were entirely smashed and carried from the port side over to the starboard side of the steamtug. Her boiler was knocked out of place, her steam-drum broken to pieces, her lever and exhaust-pipe broken, and much other damage was done to the engine and other parts of the steamtug, as more fully set forth in the record.

Two defences were set up by the owners of the steamship: (1.) That the steamship and the two steamtugs which had her in tow were in the charge and under the control of a branch pilot, taken on board conformably to the requirements of the law of the State, and they allege that the owners of the vessels, while they were under the control and management of such a pilot, are not in any way responsible for their navigation. (2.) That there was sufficient space to allow the steamship and her two tugs to pass up between the wreck and the Gladiator, and that they came up in a skilful and proper manner; that as they were passing the Gladiator and touched shoal water the Calhoun careened two points, which made it impossible to prevent a collision, which was an event wholly unforeseen and which could not have been anticipated by the most skilful seamanship.

Much discussion of the first defence, since the decision in the case of The China, is entirely unnecessary, as the whole subject was there very carefully considered. By the law of the State it is provided that if the master of any ship or vessel coming to the port of New Orleans shall refuse to receive on board and employ a pilot, the master or owner of such ship or vessel shall pay to such pilot who shall have offered to go on board and take charge of the vessel half-pilotage. State pilot laws which compel the owners of vessels to pay half-pilotage in cases where the pilot offers his services and they are refused, where the law is not enforced by any penalty, are not regarded as compulsory, and therefore the fact that the vessel was in charge of a pilot under such a law at the time of the collision is no defence to a libel for damages, if it appears that the collision was occasioned by negligence or unskilful navigation. Port regulations are supposed to be known to the shipowner before he sends his vessel on the voyage, and the general rule is that in sending her to any particular port he elects to submit to the lawful regulations established at that port, and that the vessel, in case she unlawfully collides with another vessel engaged in lawful commerce, shall be responsible. Where the law is not enforced by any penalty it is not regarded as compulsory, and if not compulsory the defence that the ship was in charge of a pilot is not a valid defence, which is all that need be said upon the subject.

2. Other defences failing, it is quite common to set up the defence of inevitable accident. Most collisions are inevitable at the moment they occur, but the primary rule is that precautions must be seasonable, as all experience shows that in order to be effectual they must be seasonable, and if they are not so, and a collision ensues in consequence of the delay, it is no valid defence to say that nothing could be done at the moment to prevent the two vessels from coming together. Inability to prevent a collision usually exists at the time it occurs, but it is generally an easy matter to trace the cause of the disaster to some negligent or unskilful act, or to some antecedent omission of duty on the part of one or the other or both of the colliding vessels. Few cases arise where there is less difficulty in answering such a defence or in pointing to the antecedent error than in the case under consideration, as it is quite clear to any one acquainted with the rules of navigation that it was a rash act for the steamship with her two tugs, one on her larboard side and the other on her port side, to attempt to pass between the Gladiator and the wreck, even if the space between those objects was somewhat wider than the three steamers abreast, which, to say the least of the proposition, is very doubtful.

Beyond doubt it was the duty of the steamship to keep out of the way, both because she was astern and because the Celuta to which the Gladiator was lashed was aground, and it is no answer to say that it was possible to pass, and that the attempt would have been successful if the Calhoun, when she reached shoal water abreast of the Gladiator, had not careened, as alleged in the answer. Under the circumstances it must be assumed that those in charge of the steamship knew that it was their duty to keep out of the way, and if they did not know that the water shoaled where the Celuta was grounded, it only furnished additional evidence to support the conclusion that the attempt to pass between the Gladiator and the wreck was a rash act and that the owners of the steamship are responsible for the consequences. Such being our conclusion, it is unnecessary to examine the other questions discussed at the argument.

DECREE AFFIRMED.


text: Talk:The Merrimac (81 U.S. 199)/Opinion of the Court


text:
The Mabey and Cooper

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

The ship Helen Cooper, lying at her dock in the East River, at Brooklyn, near the gas-works there, on Saturday the 17th of February, 1866, with her stern towards the river but ready for sea, applied to the captain of the steamtug Mabey to tow her out. Immediately opposite, at pier 45, on the New York City side, was lying at the same time and well in her dock, another ship, the Isaac Chapman. The wind on that day was somewhat high, the East River on the Long Island side of it was filled more or less with ice, and the day generally was not favorable for a sailing vessel's getting out of that part of the East River for sea. The Isaac Chapman, at least, like the Helen Cooper, was on that day and at that hour ready for sea, but was afraid to go out, and remained waiting till the river by slack water should be made less dangerous from ice. Other sailing vessels, however, in other parts of the East River and at a different hour sailed, on the 17th, and many from the North River. The captain of the Mabey when desired to tow out the Helen Cooper, remarked upon the state of the tide and unpropitious character of the day generally, and advised her owners to wait till the tide changed and the river got more free of ice. The owners seeing no danger, and wanting the Mabey to get off, resolved to go, and ordered the tug to proceed. 'We will take,' said their agent, 'the risk of all accidents.' Accordingly the Mabey attached her hawser and pulled the Helen Cooper out, stern foremost, into the middle of the stream; cutting the hawser there and attaching it in a new way. From this point and before the operation of getting her under the intended way was completed, she shot straight into the Isaac Chapman, near the main rigging, cutting her down to the water's edge, carrying away her back-stays and mizzen-stay, mashing her boats, starting her deck, and disabling her generally.

The owners of the Chapman hereupon libelled both the tug and ship. The tug answered on the 7th of May, 1867, setting forth that her master informed the owners that it was not safe to proceed to sea in the then condition of the weather and tide. That the agent of the owners insisted that the vessel should go to sea; that he yielded to the orders of the agent of the ship, he agreeing that the owners would assume all risk; that the collision was occasioned by disobedience of the orders of the pilot and bad navigation of the ship; that the order of the pilot was not to cast off the hawser by which the ship was moored but only to slacken it until the head of the ship was swung round; that the order was disobeyed, and that the hawser was cast off before the ship came round, which sent the ship over to the New York shore; and that the ship, when she had reached the middle of the stream, and was headed down stream, put her helm hard aport, so that she took a sheer to starboard, which caused her to run into the Chapman.

As the master of the tug had acted in the whole matter against his own judgment, and had set out at all only upon the request of the owners of the ship Helen Cooper, and on their agreeing to take upon themselves all risks, they now largely took upon themselves the management of the defence. They had already, May 2d, 1867, put in an answer. By the answer they set up,

'That they had a Sandy Hook pilot on board; that by his direction the tug took the ship in tow by hawser; that at this time the ship was lying at the wharf with her bows up and her stern out; that the hawser was made fast to her bows on the port side of the ship, and passed along aft, and there made fast by stops, and that the ship was towed stern foremost into the stream; that, as she passed out into the stream, the stop at the stern was cut, so as to allow her bow to turn around and head down the river; that while in the act of turning, both the ship and tug were unexpectedly caught in an immense field of floating ice, which, in spite of the tug, set both the ship and tug towards the New York shore; that, finding that the field of ice was too powerful for the tug to control, both anchors of the ship were let go, with a large amount of chain, notwithstanding which, the ice carried the ship and tug across and down the river, so that the head of the ship having finally got pointed down the river, was carried by the ice so that her bows were carried inside pier 45, and into the side of the Chapman; thus causing any damage that was done. That the field of ice in which the ship became entangled was too powerful to be controlled; and that all which she could do, was to drop her anchors with a view to stop her headway; which, however, being done, failed to bring her up; that the collision was thus the result of inevitable accident; or if not of inevitable accident, then certainly that it arose from no fault of the ship, or her officers, or crew.'

An amended answer was as follows:

'That, at the time there was considerable floating ice on the Brooklyn side of the East River, but that the river was clear for a considerable distance out on the New York side; that, owing to the floating ice, the ship was turned with more difficulty than it would otherwise have been; that the tug had got the ship's head turned down the river, angling towards the New York shore, and with most of the ship in clear water, free from ice; that, while the tug was thus successfully towing the said ship, and angling well off her port bow so as to keep her head turning down the stream, until she should head directly down, a ferry-boat suddenly and improperly crossed the bows of the tug, and in order to prevent the striking the said ferry-boat the headway of the tug was suddenly slowed, but that with the impetus which the ship had, she shot ahead towards the piers on the New York side; that, the instant the pilot discovered that the tug had slowed he waved her on, but that she could not go on without running into the ferry-boat; that, instantly upon the slowing of the tug it was seen that the tug had lost, by slowing, the control of the ship; that both anchors were at once let go, they being all ready for that purpose, but that owing to the character of the ground the ship overran her anchors, and dragged them both, and came upon the Chapman; that the wheel of the ship was hard astarboard from the time she left the pier at Brooklyn to the time of coming into contact with the injured vessel Chapman.'

Though both the master of the Helen Cooper and the pilot swore positively to this ferry-boat's shooting out of her dock in the way described, and that this-by compelling the tug to slow, and so to slack her hawser, and let the ship drift without motive power on a wrong course-was the cause of the whole difficulty, yet some other testimony went to show that the collision was caused primarily by setting out in an unfavorable state of the tide, and when the ice rendered navigation difficult; in proceeding with too much rapidity, and in towing with too long a hawser; and from the causes set forth in the answers of the owners of the tug.

The District Court condemned both tug and ship; and the owners of the ship, who had undertaken and managed the whole defence, appealed to the Circuit Court, where the decree was affirmed. From the decree of affirmance the owners of both the tug and of the ship appealed to this court.

Messrs. Beebe, Donohue, and Cooke, for the appellants:

There is no sufficient positive testimony that the day was an unsafe one. It was a Saturday, when, of course, five ocean steamers set off. Some sailing vessels also set off. On the other hand, there is sufficient and most positive testimony that the tug was embarrassed by a ferry-boat suddenly shooting out of dock, passing ahead of her, and that by the tug stopping, the ship, which had considerable way on, and had not got headed around, was left without motive power to keep her in the right course; and so that she could not avoid the collision, although she made all the efforts in her power, by dropping her anchor, and otherwise.

The East River opposite New York is not so wide as that you can turn a large ship in the middle of the river, and if you could not run near the opposite shore you could never turn.

The cause of the collision was an inevitable accident, and such a one as neither tug nor ship could guard against. It was no fault of either that the ferry-boat embarrassed the tug, and had there not been a cake of ice in the river, or had the hawser been the shortest, that embarrassment would have been equally as great. Indeed, if the hawser had been shorter the ship would have been into the tug and both into the ferry-boat; and perhaps all into the Chapman.

The ship was under the control and management of the tug, and she is not responsible for the acts or faults of the tug. It is no cause to hold her responsible that the owners of the ship assumed the defence of the tug, because if the collision happened by the ship's fault, the tug should be discharged. Yet she is held. It is not good sense to hold both the ship and the tug responsible. If the fault is on the one or the other the court must say so.

If both the tug and ship are in fault, the loss should be equally divided between them.

Messrs. Benedict and Benedict, contra:

As to the appeal taken by the tug. No appeal was taken in her behalf from the decree of the District Court. The ship having assumed her defence, she had no further care of the controversy and took no appeal. She is, therefore, in no situation to take an appeal from the decree of the Circuit Court, and her appeal ought to be dismissed.

As to the ship's appeal. The sole defence set up in the ship's answer was that the ship was 'unexpectedly caught in an immense field of floating ice.' The amended answer entirely abandons this defence, even contradicting it in material points, and sets up as a defence that 'a ferry-boat suddenly and improperly crossed the bows of the tug,' caused her to stop and thus caused the collision. This new defence was clearly an afterthought. The ship's codefendant, the tug, sets up no such defence. Yet the defence is one which must be applicable to both the tug and the ship, if it had any existence at all. It is one whose existence must have been better known to the tug than to the ship, and the fact that the tug does not set it up but charges the collision to be the result of negligence on the part of the ship, throws the strongest suspicion upon it. This suspicion is still further strengthened by the subsequent conduct of the cause. The tug having made this charge upon the ship, the latter, by agreement, takes upon herself all the responsibility of the litigation, and then fails to put before the court any evidence from the tug as to the occurrence in question. The inference is irresistible that her owners knew that those witnesses would not sustain their theory of the defence, but would show negligence on the part of the ship, and that they took this course to keep this evidence from the knowledge of the court. This they have succeeded in doing, but they cannot avoid the conclusions to which such a course of conduct on their part necessarily exposes them.

It is vain to say that the matter of the ferry-boat was after discovered. It is not credible that the owner of the ship had never inquired the cause of the collision; nor is it credible that, having inquired, he should have heard nothing of this ferry-boat, or should have forgotten all about her, if she was the cause of it. And how is the fact to be accounted for, that, while the witnesses from the tug must have been, from their position, the best witnesses to prove the existence and movements of this ferry-boat, and that while the ship, by assuming the responsibility of the defence, had done all in her power to make those witnesses disinterested, she failed to call one of them to support her allegations? It is plain that this alleged ferry-boat, of whom no one can tell the name, whence she came, or whither she went, had no real relation to the disaster. Independently of all which the court is asked to hold that an ordinary movement of a Brooklyn ferry-boat is an inevitable accident, and that this ship is not liable for the consequences, resulting to an innocent third party from her failure to provide for and guard against such ordinary movement.

It is plain from the general aspect of the case that the ship desired as soon as possible to get out of the ice into the clear water, which led them to go over to the New York side, and then the tug had not sufficient power in that narrow space to keep the ship off from the docks.

It was recklessness on the part of the ship to go to sea at all when she did. It does not in the least alleviate this to show that steamers sailed, as ocean steamships do, from the North River on the same day, or that other vessels left other-the lower-parts of the East River at slackwater, no doubt, before the ice began to run.

If the ship had to go to sea at the hour when she did, it was negligence not to have had a second tug. If the condition of things was such in the river that the ship was compelled to go in such dangerous proximity to the piers, and that the crossing of a ferry-boat, which is always to be expected in that part of the river, made the difference between safety and the injury which she actually wrought, that should have been foreseen and guarded against by having a tug alongside. A tug alongside would have averted the collision.

Both vessels must take the consequences of the negligence. The ship was the dux facli. It was her doing; but the tug, undertaking the service at the risk of the ship, is none the less to blame. She had no right, no matter what guarantces she had, to undertake this dangerous service, single-handed, in a port whose piers were lined with valuable ships and cargoes, fastened fore and aft, and helpless alike to resist or to escape.

The case falls within what is said in The Bridgeport.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: The Mabey and Cooper


text: Talk:The Mabey and Cooper

title: Talk:The Mabey and Cooper


text:
The Mabey and Cooper/Opinion of the Court

Controversies growing out of collisions between ships arise where the colliding vessel was in charge of a tug in which both the tug and the tow are liable for the consequences, as when the officers and crews of both vessels jointly participated in their control and management and where those in charge of both vessels are deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Cases also arise where the tow alone is responsible, as where the tug is employed as the mere motive power to propel the tow from one point to another, and both vessels are under the exclusive control and management of the officers and crew of the tow. Other cases also arise where the tug is solely responsible, as where the tug, under the charge of her own master and crew, undertakes to transport another vessel from one point to another, which, for the time being, has neither her master nor crew on board, as in that case her officers and crew direct and control the navigation of both vessels. #fn-s-s

Compensation is claimed in this case by the owners of the ship Isaac Chapman for injuries which the ship received in a collision between the ship of the libellants and the ship Helen Cooper and the steamtug R. L. Mabey, which had the latter ship in tow. As alleged in the libel, the collision occurred on the seventeenth of February, 1866, in the harbor of New York, while the ship of the libellants was moored on the upper side of pier forty-five in East River, and the proofs show that she lay with her head towards the shore, her stern being twenty feet inside of the outer end of the pier. She had a cargo of merchandise on board and was ready for sea, but those in charge of her did not deem it prudent to leave the wharf at that time as the tide was ebb with a strong current and there were large masses of floating ice in the stream.

Different views, however, were entertained by those in charge of the ship Helen Cooper, which was also loaded and ready to sail for a Southern port. By the answer as originally filed it appears that she was lying at the wharf of the gas-works, on the Brooklyn side of the river, with her head towards the shore and her stern towards the stream; that while in that situation those in charge of the steamtug R. L. Mabey made fast to her bows on the port side by a hawser which was passed aft and there fastened by stops, and by that means she was towed into the stream stern foremost, the tide having just commenced to ebb, and the statement of the answer is that as the ship passed out into the stream the stop at the stern was cut so as to allow the ship to turn and head down the river, and that both the ship and the steamtug, while the ship was in the act of turning, were unexpectedly caught in an immense field of floating ice, which, in spite of the power of the steamtug, set both vessels towards the opposite shore and carried them down and across the river so that the bows of the ship passed inside of pier forty-five and struck the side of the ship of the libellants and caused whatever damage the libellants' ship received by the collision. Proof of the collision, therefore, is unnecessary, as the allegation is admitted, but the respondents allege that the ship is not liable, as the collision was the result of inevitable accident.

Prompt appearance was also entered by the claimant of the steamtug, and he filed a separate answer, in which he alleges that the master of the steamtug when applied to on that day to tow the ship of the respondents to sea informed the owners that it was not safe to proceed to sea in the then condition of the weather and tide. Had he himself been governed by that opinion the case of the steamtug would be quite different, but the proofs show that he yielded to the importunity of the owners or agent of the ship and took her in tow, the owners of the ship agreeing to assume the risk of all accidents and dangers. Apart from that he also charges that the collision was occasioned by disobedience of the orders of the pilot and faulty navigation of the ship; that the order of the pilot was not to cast off the hawser by which the ship was moored but only to slacken it until the head of the ship was swung round; that the order was disobeyed, and that the hawser was cast off before the ship came round, which had the effect to set the ship over to the opposite shore towards the ship of the libellants; and he also charges that those in command of the respondents' ship, when she had reached the middle of the stream 'and was headed down stream,' put her helm hard aport so that the ship took a sudden sheer to starboard, which caused her to run into the ship of the libellants.

Leave was granted to the owners of the respondent ship to file an amended answer, in which they still insist that the collision was the result of inevitable accident, but of a widely different character from that described in the original answer filed more than five months earlier. They now allege that the river was clear of ice for a considerable distance on the opposite side of the river; that owing to the ice on the side where the ship lay it was more difficult than it otherwise would have been to turn the ship so that she would head down the river, and that while the steamtug was endeavoring to accomplish that object a ferry-boat suddenly and improperly crossed the bows of the steamtug, and in order to prevent striking the ferry-boat it became necessary that the steamtug should be suddenly slowed, which had the effect to turn the ship towards the opposite shore and caused the collision, in the manner more fully described in the amended answer.

Both parties took testimony and were fully heard in the District Court, and the District Court being of the opinion that both the tug and the tow were in fault, entered a decree for the libellants against both the respondent vessels, and the owners of the ship appealed from the whole decree to the Circuit Court, where the parties were again heard upon the same pleadings and proofs, and the Circuit Court affirmed the decree of the District Court, holding that both the respondent vessels were in fault. Whereupon the owners of the respective vessels took separate appeals to this court.

Objection is made that the owners of the steamtug could not properly appeal to this court, as they did not formally appeal from the District Court to the Circuit Court, but it is not necessary to decide that question, as it is quite clear that the decree must be affirmed against the tug as well as the tow. Nor is the court prepared to admit the validity of the objection, as the record shows that the owners of the tow signed a witten stipulation before the decretal order was entered in the District Court, that they, as the owners of the ship, would assume the entire conduct of the defence and that they would answer and pay whatever sum the libellants should recover in the case against both vessels. Undoubtedly the general rule is that a party who does not appeal cannot be heard in opposition to the decree. Still it appears in this case that an appeal from the District Court to the Circuit Court was taken from the entire decree, and by a party who represented the entire interest of the losing party in the suit. Well-founded doubt may, perhaps, arise as to the regularity of the proceeding, but it is not necessary to solve that doubt in the present case.

Suppose the appeal is correctly here, we are all of the opinion that the decree of the court below was correct.

Where the collision occurs exclusively from natural causes, and without any negligence or fault on the part of either party, the rule is that the loss must rest where it fell, as no one is responsible for an accident which was produced by causes over which human agency could exercise no control. Such a doctrine, however, can have no application to a case where negligence or fault is shown to have been committed on either side. Inevitable accident, as applied to a case 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, and where the proofs show that it occurred in spite of everything that nautical skill, care, and precaution could do to keep the vessels from coming together. #fn-s-s-s

Want of due care is shown in the fact that the ship went to sea at a moment when the master of the tug which had her in tow knew that it was not safe in view of the condition of the weather and tide; nor can the tug be held blameless any more than the ship, because as the master ultimately yielded to the importunities of the owners of the ship and assumed the risk, subject to his claim on the owner of the ship for indemnity. Faulty navigation is also shown, which of itself is a sufficient answer to the defence of inevitable accident.

Palpable error is shown to have been set up in the original answer filed by the owners of the ship, and the court is not satisfied that the defence set up in the amended answer is entitled to any more credit. Such a defence as that set up, that a ferry-boat suddenly and improperly crossed the bows of the steamtug, if founded in fact, could easily be proved by those who were on board the ferry-boat and know what occurred. Instead of that, not even the name of the ferry-boat is given, either in the answer or in the proofs, and not a witness is called except the pilot and the master of the ship, and their statements in that behalf are not satisfactory. No such defence is set up in behalf of the steamtug, and nothing of the kind was alleged in the original answer filed by the owners of the ship shortly after the suit was commenced. Neither of the courts below appear to have given that defence much credence, and this court concurs with the subordinate courts that the defence is not established.

DECREES AFFIRMED.


text: Talk:The Mabey and Cooper/Opinion of the Court


text: Caperton v. Bowyer

title: Caperton v. Bowyer


text: Talk:Caperton v. Bowyer

title: Talk:Caperton v. Bowyer


text:
Caperton v. Bowyer/Opinion of the Court

ERROR to the Supreme Court of Appeals of the State of West Virginia; the case being thus:

In July, 1862, the State of Virginia (with the exception of certain counties, not including that of Monroe), being in rebellion against the United States, and being so proclaimed by the President on the 1st of that month, one Caperton, provost marshal under the Confederate forces of Monroe County (in which martial law had been declared by Jefferson Davis, March 29th, 1862), caused a certain Bowyer, who had remained faithful to his allegiance, to be arrested and thrown into prison, and there kept for a considerable time, upon a charge of giving information to the forces of the United States.

At this time the right to bring civil suits for false imprisonment was limited by the Virginia Code to apparently one year.

In 1863 certain western counties of Virginia, including Monroe County, aforesaid, having formed themselves into a new State were duly received as such into the Union, and in 1865 and 1866 the new State passed two statutes, thus:

'An Act in relation to the Statutes of Limitation, passed March 1st, 1865.

'Be it enacted by the legislature of West Virginia: In computing the time in which any civil suit, proceeding or appeal shall be barred by any statute of limitations, the period from the 17th day of April, 1861, to the date of the passage of this act, shall be excluded from such computation.'

'An Act in relation to the Statutes of Limitation, passed February 27th, 1866.

'Be it enacted by the legislature of West Virginia: In computing the time within which any civil suit or proceeding in trespass or case shall be debarred by any statute of limitation in the counties of Monroe (&c., other counties named), the period from the first day of March, 1865, to the date of the passage of this act, shall be excluded from such computation.'

Prior to the dates of either of these acts, that is to say on the 11th of June, 1864, the Congress of the United States passed 'An act in relation to the limitation of actions in certain cases,' thus:

'That whenever, during the existence of the present rebellion, any action, civil or criminal, shall accrue against any person, who by reason of resistance to the execution of the laws of the United States, or the interruption of the ordinary course of judicial proceedings, cannot be served with process for the commencement of such action or arrest of such person;

'Or whenever, after such action, civil or criminal, shall have accrued, such person cannot, by reason of such resistance of the laws, or such interruption of judicial proceedings, be served with process for the commencement of the action;

'The time during which such person shall be beyond the reach of judicial process, shall not be deemed or taken as any part of the time limited by law for the commencement of such action.'

And in December Term, 1867, this court, in Hanger v. Abbott, decided that the time during which the courts in the then lately rebellious States were closed to citizens of the loyal States, was, in suits brought by them afterwards, to be excluded from the computation of the time fixed by statutes of limitation within which such suits may be brought; a principle subsequently affirmed, and perhaps extended, A.D. 1870, in The Protector, and in Levy v. Stewart.

The rebellion being declared, by the President's proclamation of April 2d, 1866, suppressed in Virginia, and the courts of West Virginia open to all persons, Bowyer, on the 11th May, 1866, sued Caperton in the State Circuit Court of Monroe County, in trespass for the false imprisonment which as Confederate provost marshal he had made in 1862, during the rebellion.

Caperton having demurred to the declaration and pleaded the general issue, put in six special pleas:

1st. That the action was barred, because not brought within one year next after the cause of it accrued.

2d. That it was not so brought within two years.

3d. That more than two years had elapsed after the right of action accrued, and before March 1st, 1865, when the first of the above-quoted statutes of West Virginia was passed.

4th. That at the time of the supposed grievance both the plaintiff and defendant were citizens and residents of Virginia, and that the whole time of limitation prescribed for this action by the law of that State had run while the defendant resided in it, and before the said 1st of March, 1865, when the act of that date was passed.

5th. 'That before the time of the supposed grievances, the defendant had, on oath made in conformity with the law long existing in the Commonwealth of Virginia, declared himself a citizen of the said Commonwealth, and solemnly swore that he would be faithful and true to the said Commonwealth, and would support the constitution thereof so long as he continued to be a citizen of the same, and until and at and after the time of the said supposed grievances he continued to be a citizen of the same, and before and at the time of the said supposed grievances the said Commonwealth was engaged in actual war, and an army consisting of a large number, to wit, _____ thousand soldiers, was raised within the then territory of the said Commonwealth, for the safeguard and defence of the same against those who then, by those then acting at the city of Richmond, in said Commonwealth, as the authorities of said Commonwealth, were deemed the enemies thereof; and during the time that the said army was in actual service within said territory for such safeguard and defence, and while the then actual authorities of said Commonwealth and those in the same confederacy therewith were not only belligerents, but recognized as such by the government of the United States, General H. Heth, the general and commander of troops forming part of said army in actual service, did, under the authority of the executive power then in fact exercised over said Commonwealth and over those in the same confederacy therewith, appoint this defendant provost marshal of the county of Monroe; and while this defendant was such provost marshal under said appointment, the plaintiff was, without any special order from or instigation of this defendant, taken and imprisoned upon a charge of harboring deserters, and was, by this defendant, discharged from imprisonment upon his giving surety for his good behavior; and all the supposed grievances whereof the plaintiff has complained, so far as this defendant did or procured, caused, directed, ordered, instigated others to do the same, were acts done while this defendant was such provost marshal under said appointment, and done in what was then in fact the territory of said Commonwealth, and done in pursuance of the executive authority, which then in fact governed in said Commonwealth, and in accordance with such laws, rules, and regulations as then in fact prevailed therein.'

6th. That on the 7th September, 1865, the President had granted him, the defendant, a full pardon and amnesty for all offences by him committed, arising from participation, direct or implied, in the said rebellion; and the defendant took the oath prescribed in the proclamation of the President, dated May 29th, 1865, and the defendant duly notified the Secretary of State, in writing, that he had received and accepted the said pardon. And further, that all the grievances complained of in the declaration were acts arising from participation, direct and implied, in the said rebellion.

The court sustained the declaration, and issue being tendered to the country on the general issue and the first three of the special pleas, and the court having, without assigning any reasons, decided the three remaining ones to be bad, on general demurrer, the case came on to be tried.

The plaintiff having shown the imprisonment, the defendant offered in evidence, 'both in mitigation of damages and as justification of the acts complained of,' the already-mentioned pardon of the President. This pardon had five conditions annexed to it: (1.) That Caperton should take a certain oath. (2.) That he should not acquire slaves, &c. (3.) That he should pay certain costs. (4.) That he should not claim certain property, or its proceeds. (5.) That he should notify the Secretary of State in writing that he accepted the pardon. It was shown that Caperton had given the required notice and had taken the required oath. What had been done in the other matters did not appear. The court excluded the pardon.

The defendant then requested the court to charge as follows:

'1st. If the jury believe that this action was not brought within one year next before the right to bring the same accrued, the verdict should be for the defendant.

'2d. If the jury believe that the right to bring this action accrued more than one year before the 1st day of March, 1865, and that this action was not brought until after the 1st day of March, 1865, the verdict should be for the defendant.'

The court refused so to charge, and charged thus:

'In computing the time of the statute of limitations in this cause, the jury ought to exclude from the computation all that term of time between the 17th of April, 1861, and 27th of February, 1866, and if the cause of action arose in 1862, as alleged in the declaration, then it is not barred by either of the statutes of limitations upon which issues have been joined.'

Verdict and judgment having, on the 25th July, 1867, gone for the plaintiff, the judgment was taken from the Circuit Court of Monroe County, where the suit was brought, to the Supreme Court of Appeals of the State of West Virginia. All that now was shown by the record as to the action of that court or the reasons of it, appeared in a certificate from its clerk, thus:

'The court having maturely considered the transcript of the record of the judgment aforesaid, together with the arguments of counsel thereupon, is of opinion, for reasons stated in writing and filed with the record, that there is no error in said judgment; therefore it is considered by the court that the judgment aforesaid be affirmed, and that the defendant in error recover from the plaintiff in error, damages according to law, together with his costs about his defence in this behalf expended.

'And the court doth certify that in the aforesaid judgment there was drawn in question the validity of the statute of the State of West Virginia, passed March 1st, 1865, entitled 'An act in relation to the statutes of limitation,' on the ground that it was repugnant to the Constitution of the United States; and the decision of this, the highest court of law and equity in this State in which a decision in said suit could be had, was in favor of the validity of said statute.'

From the affirmance by the Supreme Court of Appeals the case was brought here, on the assumption that it came within the 25th section of the Judiciary Act, quoted supra, pp. 5, 6. A motion to dismiss for want of jurisdiction having been made, the question of jurisdiction was argued.

Messrs. Conway Robinson, R. T. Merrick, and Simeon Nash, in support of the jurisdiction:

1. By the laws of Virginia, existing prior to the 1st of March, 1865 (when a new statute was passed), all right of Bowyer to sue Caperton had completely gone at the expiration of a year from July, 1862, the time of the alleged trespass-gone, therefore, long before this act of 1865 was passed, or this suit of 1866 was brought. Caperton thus had an ascertained and fixed privilege, immunity, and right, such as subsequent legislation could not deprive him of without his consent. Yet the court below decided that the State of West Virginia could by a retrospective statute divest the right to the defence, which was thus complete under the previous statute, and could give a new right of action. We set up below and maintain here that such a decision is in the face of the fifth amendment to the Constitution, which says that 'no person shall be deprived of liberty or property without due process of law.' The judgment of the Court of Appeals having been in favor of the validity of the statute thus drawn in question by us, our right to come here under the 25th section is clear.

2. Our right is equally clear, because that court affirmed the ruling of the court below declaring our fifth special plea bad.

1. 'Use,' says Vattel, 'appropriates the term of civil war to every war between members of one and the same political society. . . . The sovereign indeed never fails to term rebels all subjects openly resisting him; but when these become of strength sufficient to oppose him, so that he finds himself compelled to make war regularly on them, he must be contented with the term of civil war.' The terms rebels and pirates were freely applied by George III and the British Parliament to the Americans who were engaged in defending themselves and their families and property against Great Britain between 1775 and 1783. Yet when it was argued before this court as to that war, that till the Declaration of Independence, it was only a civil war, there was uttered from its bench this language:

'But why is not a defensive war against Great Britain (call it, if you will, a civil war) to be conducted on the same principles as any other? If it was a civil war, still we do not allow it to have been a rebellion. America resisted and became thereby engaged in what she deemed a just war. It was not the war of a lawless banditti, but of freemen fighting for their dearest rights, and of men lovers of order and government. Was it not as necessary in such a war as in any between contending nations that the law of nations should be observed.'

Such language is no less applicable to the war waged by men of the Southern States from the spring of 1861 to the spring of 1865, a war 'which all the world acknowledges to be the greatest civil war known in the history of the human race.' 'That civil war,' said this court, 'was carried on upon a vast scale against the government of the United States for more than four years. . . . The power which carried it on was recognized as supreme in nearly the whole of the territory of the States confederated in insurrection.' The two cases last cited and others occurring in the interval between them, may be regarded as consistent with the law of nations, as declared by Vattel, that 'whenever a numerous party thinks it has a right to resist the sovereign, and finds itself able to declare that opinion, sword in hand, the war is to be carried on between them in the same manner as between two different nations.' The government of such party, whether called as by publicists a government de facto or denominated as by this court a government of paramount force, must, this court has said, 'necessarily be obeyed in civil matters by private citizens who, by acts of obedience, rendered in submission to such force, do not become responsible as wrongdoers for those acts, though not warranted by the laws of the rightful government.'

Now here Caperton set up below in his fifth plea a claim to be exempt from liability under the laws of war, which exempts one engaged in war for certain acts done in the prosecution thereof. The court below denied this right absolutely by sustaining the demurrer to the pleas setting up that defence. Is this a right or claim set up under an authority exercised under the United States? It certainly is if international law is a law of the United States, of the nation, and not of the several States. Whether this is so was the question in the McLeod case, A.D. 1841, in New York, growing out of the burning of the Caroline. The Supreme Court of that State decided that the State had jurisdiction to try and hang McLeod, notwithstanding Great Britain had recognized the act as done under her orders, and asserted that the British government, not McLeod, was responsible for what was done. Under the ruling of that court McLeod was put on trial, but the Attorney-General of the United States was sent by our government and was present at the trial with the necessary documents to put the question on record so it could be taken up, and the nation saved from a war with Great Britain, by this strange decision of a State court.

That the understanding of the administration and of well-informed persons at the time was, that this, the Supreme Court of the United States, had jurisdiction of the judgment of the Supreme Court of New York, is clear from a notice of the trial of McLeod in the National Intelligencer of May 22d, 1841. The editors alluding to this trial there say:

'Whatever the decision, whether for releasing or remanding the prisoner, an appeal will probably be taken to the Court of Errors, from which a further appeal lies, in cases of this nature, to the Supreme Court of the United States.'Mr. Choate, in a speech delivered on the 11th of June, 1841, in the United States Senate, maintains the same position. He says:

'The clear course of the government, therefore, was to do what it did, to have McLeod's case fairly tried, and if needful, to have his case brought into the National tribunals.'

The well-known relations between Mr. Choate and Mr. Webster, then Secretary of State, make it plain that the views of this great constitutional lawyer upon the jurisdiction of this court, on a right set up as Colonel Caperton's here was in this fifth plea, under international law, under the laws of war, agreed with ours.

This indeed must be the law, or the General Government is at the mercy, on a question of foreign relations, of the action of a State, or of its courts. So in the case of the late civil war, parties for acts done in prosecution of that war are liable or not liable for acts so done, just according to the whim or prejudice of any State court. Is it possible that this court has no jurisdiction over these questions to secure that conformity which is essential to the administration of justice?

The validity of this right under the law of nations, part of the law of the United States, the court below decided against.

3. This court has jurisdiction on yet a third ground. The Constitution of the United States gives power to the President 'to grant reprieves and pardons for offences against the United States.' The pardon was a valid exercise of authority under the United States. And the decision of the Circuit Court is against its validity or against the exemption set up under it. If the pardon could be pleaded in bar, there was error in the court's declaring plea eighth bad. If it could not be so pleaded, then the court erred in not admitting the pardon in evidence under the general issue in mitigation of damages, and the error brings us within the 25th section.

Messrs. J. Hubley Ashton and B. Stanton, contra, and in support of the motion to dismiss:

1. It is no matter whether the act of the legislature of West Virginia of March 1st, 1865, is constitutional or not. The decision as to the effect of the war on the old statute of limitation was right independent of that statute, and of any statute. That this is so was declared by this court at December Term, 1867, in Hanger v. Abbott, and in other cases since.

Besides, on the 11th of June, 1864, Congress passed its 'act in relation to the limitation of actions in certain cases,' in substantially the same form as the West Virginia law of March 1st, 1865. That act applied to all cases, and all places, when no suit could be brought by reason of resistance to the laws or the interruption of judicial proceedings. It did not in terms apply to the time that had elapsed prior to its passage. The legislature of West Virginia, acting upon its own knowledge as to the time that the courts there had been suspended, did but fix the precise time that the old statute should be suspended, and in terms made it applicable to the time that had elapsed, prior to its passage. This court, in Stewart v. Kahn, held that Congress had power to pass such a suspending act to operate retrospectively, and also that the act was a remedial statute, entitled to a liberal construction, and such as should be held to operate retrospectively, although it did not do so in terms. It also held that the act was applicable to suits pending in the State courts.

It would be extraordinary to hold a declaratory act of a State legislature, which in reality but defined and limited the suspension of the statute of limitation, created by the action of the courts and legislature of the General Government, and existing independent of the State statute, unconstitutional and void.

2. Then does the case come here under the 25th section, because the Circuit Court of Monroe County declared the fifth special plea bad? We say the Circuit Court of Monroe County, because there is no evidence that the Court of Appeals ever passed on that part of the case. Contrariwise, it rather seems that they did not. Judging by the certificate (supra, p. 222), no Federal question was raised but that relating to the new statute of limitations. If it was shown that the Court of Appeals did decide against its validity, haud constat that a Federal question was thus passed on. They may have decided the plea bad for other reasons, as ex. gr., for being argumentative, &c.

But what is the plea at best? It is simply that Caperton acted under the authority of the rebel government, and that therefore he is justified. But this involves no question upon the validity or construction of the Constitution of the United States, or of any treaty, law, authority, or commission derived from the United States, nor upon the validity of any State law on account of its being in conflict with any provision of the Constitution of the United States, or any treaty, law, authority, or commission, derived from the United States.

It is said that it involves a question of international law. If it does, this can give this court no jurisdiction. The law of nations is not embodied in any provision of the Constitution, nor in any treaty, act of Congress, or any authority, or commission derived from the United States. It is true that the courts of the United States, like the courts of the States, and of all other civilized countries, recognize the law of nations as binding upon them; and it is argued that as the government of the United States is charged with the management and control of our foreign relations, the courts of the United States ought to have the power of deciding in the last resort, all questions of international law, otherwise difficulties may arise with foreign nations on account of erroneous decisions by the State courts which the government of the United States could not provide against. But whatever force the argument of convenience might have in a case arising between the United States and a foreign nation, it has very little in a case arising out of a defunct rebellion. It is no great hardship for parties who have plunged the country into a bloody and protracted war, and who have been pardoned for crimes the greatest known to the law-treason, murder, arson, and robbery among them-to be required to make redress for the injuries which their neighbors have sustained at their hands.

The case of McLeod, in the Supreme Court of New York, is referred to. The decision of that court was the subject of much criticism at the time. It was disapproved by Mr. Webster, who was then Secretary of State, and by Mr. Crittenden, Attorney-General of the United States, and many other distinguished jurists. Whether it was right or wrong is not important for our present purpose. But no attempt was made to bring the case before this court for revision. And it seems probable, that if the administration had supposed that this court had appellate jurisdiction from the New York courts in that case, that the case would have been brought before this court. The administration was seriously embarrassed by the decision. There was great danger of the country being plunged into a war with Great Britain, on account of its failure to surrender McLeod. Still, the courts of New York were permitted to maintain their jurisdiction and try McLeod for murder. The country was relieved from further controversy by the jury finding him not guilty.

What is still more conclusive as to the opinion of the jurists of the country, as to the appellate jurisdiction of this court on questions of international law is, that immediately after the McLeod case was disposed of, an act of Congress passed, to give the courts of the United States jurisdiction in similar cases that might thereafter arise. That act was passed August 29th, 1842. It provided that a writ of habeas corpus might be issued by any judge of this court, or any District judge of the United States, where any subject or citizen of a foreign state, and 'domiciled therein,' was imprisoned for any act done or committed under the authority of any foreign state or sovereign, the validity or effect whereof depended on the laws of nations. But this law can have no application to the case at bar.

It is assumed by the other side that whenever the established government in a civil war exercises the powers and rights of a belligerent, and applies to the contest the rules and usages of war, that it thereby grants to the parties in rebellion all the rights and immunities of a party to a public international war; that if it sends or receives a flag of truce, exchanges prisoners, or blockades the ports of the insurgent government, it thereby makes the insurgents a belligerent power, which has a right to demand all the rights and immunities of an independent nation in a public international war. This is an error. It is one of the essential attributes of sovereignty which belongs to every independent nation, to determine for itself, how it will deal with rebels and insurgents against its authority and government. It may treat one of its insurgent citizens as an enemy and hold or exchange him as a prisoner of war, and another as a rebel and traitor and hang him for treason. Writers on international law say indeed that the rules and usages of civilized modern warfare, which are applicable to international wars, are equally applicable to civil wars. But they also say, that when an insurrection or rebellion is suppressed, the government may prosecute the parties that are engaged in it, and punish them for treason and rebellion.

The case now before the court cannot, in short, be distinguished from Jones v. Hickman, where it was held that 'the proportions and size of the struggle did not affect its character,' that there was no 'rebel government de facto in any such sense as to give any legal efficacy to its acts,' and that the judgment of a rebel court was illegal and void, and could not protect the judges and marshal from an action for false imprisonment.

3. As respects the pardon, the certificate from the Court of Appeals shows that it was not spoken of there at all. If it was so spoken of, the court perhaps thought that it had rightly been deemed insufficient either as evidence or plea, because it did not appear that more than two conditions had been observed.

Mr. Justice CLIFFORD delivered the opinion of the court.

Special jurisdiction only is given to this court by virtue of a writ of error to a State court, and unless the record shows that the case falls within the conditions annexed to the right of a party to invoke the exercise of the jurisdiction, the writ of error must be dismissed. Primarily those conditions are two: (1.) That it shall appear that some one of the questions specified in the twenty-fifth section of the Judiciary Act, or the second section of the amendatory act, did arise in the case. (2.) That the question which did so arise in the case was decided by the court in the way therein required to give this court jurisdiction to re-examine the question, and the rule is settled that unless both those things appear the jurisdiction does not attach.

On the sixth day of August, 1866, the plaintiff brought an action of trespass for false imprisonment against the defendant in the State court, in which he alleged that the defendant, on the twenty-ninth of June, 1862, with force and arms, seized the plaintiff and incarcerated him in a dungeon, and imprisoned him there for twenty-four days, separated from his home and family, and that he subjected him to great danger and many hardships, and seriously impaired his health and put him to great pain and distress, both of body and mind.

Service having been made the defendant appeared and demurred to the declaration, and filed seven other pleas, as follows: (1.) That he was not guilty in manner and form as alleged. (2) That the action was not brought within one year next after the right to bring the same accrued. (3.) That the action was not brought within two years next after the right to bring the same accrued. (4.) That more than two years had elapsed after the right to bring the action accrued, and before the present limitation act of the State was passed. (5.) That the plaintiff and defendant were citizens of the same State, and that the whole time prescribed as a limitation had elapsed before the present act modifying the pre-existing law was passed. (6.) That the supposed grievances were acts done by the defendant as provost marshal under the military orders of the State, in time of actual war, as more fully set forth in the plea. (7.) That the President, on the seventh of September, 1865, granted the defendant a full pardon and amnesty for all offences by him committed, arising from participation, direct or indirect, in the rebellion.

Subsequently the plaintiff filed a joinder to the demurrer, joined the issue tendered under the plea of not guilty, and filed a replication to the six special pleas as follows: (1.) That the action is not barred as alleged, and tendered an issue to the country. (2.) That the action is not barred as alleged in the second special plea, and also tendered an issue to the country. (3.) That the action is not barred as alleged in the third special plea, and tendered an issue to the country. (4.) Plaintiff filed a demurrer to the fourth, fifth, and sixth special pleas, and the defendant demurred to the replication of the plaintiff to the defendant's first special plea.

All the issues of law were determined by the court in favor of the plaintiff, that is, the court overruled the demurrer to the declaration, sustained the demurrers of the plaintiff to the fourth, fifth, and sixth special pleas of the defendant, and also overruled the demurrer or the defendant to the plaintiff's replication to the defendant's first special plea, which left nothing for trial but the issues of fact, which were submitted to a jury, and the jury found all the issues of fact in favor of the plaintiff, and that the defendant was guilty as alleged in the declaration, and assessed damages for the plaintiff in the sum of eight hundred and thirty-three dollars. Judgment was rendered for the plaintiff, and the defendant excepted and removed the case into the Court of Appeals of the State, where the judgment was in all things affirmed. Whereupon the defendant sued out the present writ of error and removed the cause into this court for re-examination under the twenty-fifth section of the Judiciary Act.

Jurisdiction, it is claimed by the defendant, may be sustained in this case upon three grounds, which will be separately considered: (1.) Because the judge told the jury that, in computing the time of the statute of limitations, they ought to exclude from the computation all that period of time between the seventeenth of April, 1861, and the twenty-seventh of February, 1866, as that ruling, as he contends, was equivalent to a ruling that the recent acts passed by the State upon that subject are valid laws, which he denies. (2.) Because the court sustained the demurrer of the plaintiff to the fifth special plea of the defendant, setting up belligerent rights as a defence to the action. (3.) Because the court excluded the pardon granted to him by the President when offered in evidence under the plea of not guilty.

1. Two acts of limitation have recently been passed by the State legislature. By the first, which was passed on the first day of March, 1865, it was enacted that, in computing the time within which any civil suit, proceeding, or appeal, shall be barred by any statute of limitations, the period from the seventeenth day of April, 1861, to the date of the passage of the act, shall be excluded from such computation. By a subsequent act passed on the twenty-seventh of February, 1866, it is provided that, in computing the time within which any civil suit, or proceeding in trespass or case, shall be barred by any statute of limitations in certain counties, including the county in which this suit was brought, the period from the first day of March, 1865, to the date of the passage of the act shall be excluded from such computation.

Two prayers for instruction upon that subject were also presented by the defendant which were refused by the court, but it is not necessary to reproduce them, as the question involved is as fully raised by the instruction given to the jury as by the refusal to give those instructions.

Exception was taken by the defendant to the refusal to instruct and to the instruction given, but the grounds of the exception are not stated, nor are the reasons for the ruling given by the court. Such an exception is not sufficient to show that any one of the questions mentioned in the twenty-fifth section of the Judiciary Act was either raised or decided in the manner therein required to give this court jurisdiction under a writ of error to a State court. Unless both those things appear; that is, unless it appears that the question was raised and that it was decided in the way required, the jurisdiction does not attach, and it is clear that the exception is not sufficient to show that either occurred at the trial. Nothing further was done upon the subject in the court of original jurisdiction, but the cause was removed into the Court of Appeals of the State, where the judgment was affirmed. Appended to the judgment in that court is a certificate signed by the clerk and certified by the presiding justice of the court, that there was drawn in question the validity of the act of the State passed March, 1865, in relation to the statute of limitations, on the ground that it was repugnant to the Constitution of the United States, and that the decision of the highest court of law and equity in the State was in favor of its validity. Evidently that court had before it nothing but the exception taken and signed in the subordinate court, which is clearly insufficient to raise such a question or to show that it was decided in a way to give this court jurisdiction in such a case. Undoubtedly such a certificate is entitled to much weight, as showing that the question was decided by the court which gives it, and in the manner required to give jurisdiction, but it is not conclusive to show that the question was raised in the case, as the latter question may depend upon the construction of the pleadings, or, as in this case, upon the proper construction of the language of the bill of exceptions.

Necessary implication, it is said, will suffice, which may be granted, but it can hardly be said in this case that it must necessarily be implied that the judge instructed the jury that the State statute was consistent with the Federal Constitution. What he did tell the jury was that a certain period of time should be excluded from the computation in determining the issues of fact presented by the pleadings, whether the action was barred by the one or two years' limitations. Three years before that this court had decided that the period during which the courts of the State where the defendant resided were closed, by reason of the insurrection and rebellion, should not be deemed and taken as a part of such a limitation.

Congress allowed one year from the date of the act to the time allowed for suing out writs of error and taking appeals in districts where the sessions of the courts had been suspended or interrupted by insurrection or rebellion, and this court decided that the act of Congress was a remedial, and not a restraining one, and applied the rule laid down in the prior case, that in computing the five years allowed for the purpose, the period for which the courts were closed by insurrection or rebellion, must be excluded from the computation. Provision was also made by Congress that the time during which any person was beyond the reach of legal process, by reason of resistance to the execution of the laws, or the interruption of the ordinary course of judicial proceedings, shall not be deemed or taken as any part of the time limited by law for the commencement of any action, civil or criminal. Objection was taken to the validity of that provision, but this court unanimously held it to be constitutional.

Prior to these decisions, founded upon acts of Congress, this court had decided, as before remarked, that the period during which the courts were closed by the insurrection must be excluded from every such computation, and this court has twice since that decided in the same way, every justice of the court concurring in the opinion. Enemy creditors cannot prosecute their claims subsequent to the commencement of hostilities, as the rule is universal and peremptory that they are totally incapable of sustaining any action in the tribunals of the other belligerent. Absolute suspension of the right to sue and prohibition to exercise it exist during war, by the law of nations, but the restoration of peace removes the disability and opens the doors of the courts.

Tested by these considerations, this court is of the opinion that the judge of the State court may well have followed the decisions of this court in the instruction he gave to the jury without having intended to express any opinion as to the constitutionality of the State law, and that it does not appear with sufficient certainty that the supposed Federal question did arise in the case, or that it was decided in the manner required to give this court jurisdiction under a writ of error to a State court.

2. Next ground assumed is that the court erred in sustaining the demurrer of the plaintiff to the fifth special plea of the defendant, setting up belligerent rights as a defence to the action.

Unquestionably it does appear that the plaintiff demurred to that plea and that the court sustained the demurrer to the plea, but it nowhere appears that the court held the plea bad for the reason supposed by the defendant. On the contrary, the plea is very defectively drawn, and it may be that it was held bad for many other sufficient reasons, and the fact that the certificate filed by the chief justice makes no mention of this point justifies the conclusion that it was not decided by the court of last resort. Questions presented in a subordinate court are frequently waived in the appellate court, and it is plain law that questions not presented in the court of last resort do not give jurisdiction in a case like the one before the court. Such a question may be raised in a bill of exceptions, but sufficient of the proceedings must be stated to show not only that it was raised, but that it was decided in the manner required to give the jurisdiction.

3. All that remains to be considered is the question respecting the pardon. By the bill of exceptions it appears that the defendant offered the pardon, both in mitigation of damages, and as a justification of the alleged wrongful acts, and it appears that the plaintiff objected to the introduction of the instrument and that the court sustained the objection, and that the pardon was excluded. Enough appears to show for what purpose the pardon was offered, but nothing appears to show upon what grounds it was rejected at the trial or that the question was ever examined or decided by the Court of Appeals. Five conditions are embodied in the pardon, but the record shows that the defendant complied with the first and fifth, and it does not show that he has ever violated any one of the others. No mention is made of that ruling in the certificate of the chief justice, nor is there anything in the record to show that the exception was presented to the Court of Appeals, unless that may be inferred from the fact that the Court of Appeals found that there was no error in the record and affirmed the judgment. Questions not decided in the State court, because not raised or presented by the complaining party, will not be re-examined in this court on a writ of error sued out under the twenty-fifth section of the Judiciary Act. Such is the settled practice, and the act of Congress provides that it must appear that the question presented for decision in this court was raised in the State court, and that the decision of the State court was given as required by that section. Repeated decisions have established that rule, and inasmuch as the point has been several times ruled at the present session, we forbear to extend the discussion.

DISMISSED FOR WANT OF JURISDICTION.

title: Caperton v. Bowyer/Opinion of the Court


text: Talk:Caperton v. Bowyer/Opinion of the Court


text:
Caperton v. Ballard

ERROR to the Supreme Court of Appeals of Western Virginia; the case being thus:

The Constitution of the United States ordains 'that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,' and also ordains that 'the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.'

Congress in execution of this power thus given to it, by act of May 26th, 1790, passed a statute prescribing the mode in which 'the records and judicial proceedings of the courts of any State shall be authenticated, so as to take effect in every other State.' This statute enacts:

'That the records and judicial proceedings of the courts of any State shall be proved or admitted in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form.'

The act then proceeds:

'And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are or shall be taken.'

In this state of the law one William A. Ballard, as administrator of William Ballard, deceased, brought suit against a certain Caperton, in the State Circuit Court of Monroe County, West Virginia-a county prior to about the 20th of June, 1863, of Virginia, but after that date a county of West Virginia-for a tortious seizure, sale, and destruction of the property of the intestate. The letters of administration were issued to the plaintiff by the Circuit Court of Monroe County, on the 25th of April, 1866, after the suppression of the rebellion. In bar of the suit the defendant pleaded that on the 16th of February, 1863, letters had been duly granted by the County Court of the same county, on the same estate, to one John C. Ballard, who properly qualified as administrator. To this it was replied that the letters were granted by a court in rebellion, and void.

On the trial the plaintiff produced evidence to show that he was regularly appointed administrator by the Monroe County Circuit Court, on the 25th of April, 1866. The defendant, on the other hand, in order to sustain his plea, offered in evidence an order from the County Court of the same county, dated February 16th, 1863, reciting that administration of the estate of William Ballard, deceased, is granted to John C. Ballard, who had made oath, &c., and 'that letters in due form are granted to him.' This order, so far as the record shows, was certified in no other manner than by the teste of the clerk, one Lewis Callaway. There was not even a seal attached to the certificate. The defendant then offered evidence that he had paid to this administrator the net proceeds of the alleged tortious seizure and sale of the decedent's property, and he requested the court to charge that if the administration of the plaintiff's intestate had been granted to John C. Ballard by the County Court, composed of justices who held their commission under the authority of the Commonwealth of Virginia issued to them in 1860, such appointment was sufficient to authorize him to act as such administrator, and that there could be no other appointment subsequent thereto until the original appointment was set aside by a court of competent jurisdiction. The court refused so to charge, but on the contrary charged that if on the 16th of February, 1863, when the appointment of John C. Ballard was made by the Monroe County Court, that court was in rebellion against the government of the United States, and was composed of justices who were then engaged in giving aid and comfort to the rebellion by levying supplies, &c., its proceedings were void, and that their appointment to John C. Ballard gave no authority, and that it was not necessary to set aside an invalid order of such a court in order to give effect to the plaintiff's appointment, which was made by a competent tribunal.

Judgment having been given against the defendant, he took the case to the Supreme Court of Appeals of West Virginia, where the instruction was declared to have been proper and the judgment was affirmed.

The judgment was now brought here by the defendant, Caperton, on an assumption that he could properly bring it, on the case stated, under the 25th section of the Judiciary Act, quoted supra, pp. 5, 6.

Mr. J. Hubley Ashton (with whom was Mr. B. Stanton), having asked to have the writ of error dismissed for want of jurisdiction; Messrs. Conway Robinson, R. T. Merrick, and Simeon Nash, argued contra, and in support of the jurisdiction, that it existed under that clause of the Constitution which provides for giving effect in one State to the judicial proceedings of every other State, and that this constitutional provision had been disregarded, because the courts in West Virginia did not give proper effect to the letters granted in 1863 by the court of a county which at that time formed a part of Virginia, but which, when the subsequent letters were granted, and this suit was tried, had become incorporated into West Virginia.

Mr. Justice DAVIS delivered the opinion of the court.

title: Caperton v. Ballard


text: Talk:Caperton v. Ballard

title: Talk:Caperton v. Ballard


text:
Caperton v. Ballard/Opinion of the Court

This court has repeatedly declared that it is only under the 25th section of the Judiciary Act that it takes cognizance of error committed in the highest courts of a State. There must be a Federal question, within the terms of that section, to enable us to review the decision of a State tribunal. Is there such a question here?

It is argued that a constitutional provision has been disregarded, because the courts in West Virginia did not give proper effect to the letters granted in 1863 by the court of a county which at that time formed a part of Virginia, but which, when the subsequent letters were granted, and this suit was tried, had become incorporated into West Virginia.

It may be conceded that the decision on this subject could be reviewed, if the record showed a state of case in which this provision of the Constitution was applicable, but in the absence of this we cannot consider the point, whatever may be the hardship of this particular suit. The same constitutional provision which ordains 'that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,' also ordains that 'the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.' Congress acted on this subject, and on the 26th of May, 1790, prescribed the manner in which judicial records, and the proceedings of the courts of any State shall be authenticated, so as to be considered proved and admitted in any other court in the United States. This act declares further that the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every other court within the United States as they have by law, or usage, in the courts of the State from whence the said records are or shall be taken. The mode of authentication prescribed by the law requires the attestation of the clerk with his seal attached, and the certificate of the judge that the attestation was in due form. If a judicial proceeding has the effect of record evidence in the courts of the State from which it is taken, it has the same effect in the courts of every other State. To receive this conclusive effect, however, it must not only be pleaded but proved in conformity with the act of Congress on the subject. Unless this is done there is nothing for this court to act upon.

It is only through the instrumentality of the statute that the clause of the Constitution, which the plaintiff in error relies on, can be invoked for his protection. Legislation was required to make the constitutional provision effective, and this having been done by a general law, it requires no argument to show that a party cannot claim that a right under the Constitution and law has been denied him by a State court, unless he has used the means for his protection which the statute directs.

This the plaintiff in error failed to do. He relied for his justification upon letters of administration granted in 1863 by the County Court of Monroe County, while it was a part of Virginia, but did not furnish the legal evidence required to establish the existence of the record. It would seem that in Virginia, the tribunals intrusted with probate business were designated by the name of County Courts, while in West Virginia the Circuit Courts of each county were empowered to grant letters of administration. Doubtless the County Court records of Monroe County were transferred to the custody of the clerk of the Circuit Court, after West Virginia was admitted into the Union. This is fairly inferable from the fact that the only evidence offered to the grant of letters in 1863 was the transcript of the records of the County Court, under the hand of Lewis Callaway, styling himself clerk of the Monroe County Circuit Court.

This proof, if received by the State court as sufficient to establish the record of a judicial proceeding in Monroe County, while a part of Virginia, lacked the formalities required by the act of Congress. The seal of the County Court was wanting, as well as the certificate of the presiding magistrates. It will not do to say that they could not be procured on account of the anomalous condition in which the records of the county were placed by the change of jurisdiction. There is nothing to show that any effort was made to supply the omission. In fact the case does not seem to have been tried in reference to the conclusive effect of the judgments of one State in the courts of another. It rather seems to have been tried on the theory that the judgment was void because the court granting the letters was disloyal. Indeed, neither in the pleading nor proof is the particular provision of the Constitution on this subject relied on. It is certainly not set up in words, nor from the pleading itself could an inference even be drawn that Monroe County in 1866 was not in the same State as in 1863. It is only through the history of the country that we ascertain this fact.

It may be that the attention of the court below was called to the conclusive effect of judicial proceedings under the Constitution and laws of Congress, but if so, there is nothing in the record to show it. It is, doubtless, unfortunate that the plaintiff in error did not in proper terms set up the right he now claims, and conform his proof to the requirements of the law. If he had done so, and the decision had been adverse to him, he could have had it reviewed here, although the question would still arise whether the constitutional provision concerning the effect of judgments of different States would be applicable on account of the transfer of Monroe County to the jurisdiction of West Virginia. As the case is, the Federal question is not presented at all, and the writ of error must be

DISMISSED FOR WANT OF JURISDICTION.


text: Talk:Caperton v. Ballard/Opinion of the Court


text:
Gibson v. Warden

APPEAL from a decree of the Circuit Court for the Southern District of Ohio, in a bill in equity filed by Warden & Ludlow, assignees of Moore & Co., against David Gibson, and against Gaylord, Son & Co., and other defendants. The matter in issue was the validity, in view of the bankrupt law, of two chattel mortgages, given by the bankrupt, one to the said Gibson, and the other to the said Gaylord, Son & Co. The mortgages were asserted to be frauds on the bankrupt law, as coming within either the first clause or the second of the 35th section of the Bankrupt Act. The first clause reads thus:

'If any person being insolvent, or in contemplation of insolvency, within four months before the filing of the petition by or against him, with a view to give a preference to any creditor or person having a claim against him, or who is under any liability for him, procures any part of his property to be attached, sequestered, or seized on execution, or makes any payment, pledge, assignment, transfer, or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment, assignment, transfer, or conveyance, or to be benefited thereby or by such attachment, having reasonable cause to believe such person is insolvent, and that such attachment, payment, pledge, assignment, or conveyance is made in fraud of the provisions of this act, the same shall be void, and the assignee may recover the property, or the value of it, from the person so receiving it, or so to be benefited.'

The second clause read thus:

'And if any person being insolvent, or in contemplation of insolvency or bankruptcy, within six months before the filing of the petition by or against him, makes any payment, sale, assignment, transfer, conveyance, or other disposition of any part of his property to any person who then has reasonable cause to believe him to be insolvent, or to be acting in contemplation of insolvency, and that such payment, sale, assignment, transfer, or other conveyance is made with a view to prevent his property from coming to his assignee in bankruptcy, or to prevent the same from being distributed under this act, or defeat the object of, or in any way impair, hinder, impede, or delay the operation and effect of, or to evade any of the provisions of the act, the sale, assignment, transfer, or conveyance shall be void, and the assignee may recover the property, or the value thereof, as assets of the bankrupt. And if such sale, assignment, transfer, or conveyance is not made in the usual and ordinary course of business of the debtor, the fact shall be prim a facie evidence of fraud.'

The court below decreed that the mortgages were invalid, and secured no priority, and that the defendants stood on the footing of general creditors. Gibson appealed, as did Gaylord & Sons; the other defendants did not appeal.

Mr. Aaron F. Perry, for the appellant, Gibson; Mr. E. M. Johnson, for the appellants, Gaylord & Son; no counsel for the appellees.

Mr. Justice SWAYNE stated the case more particularly, and delivered the opinion of the court.

title: Gibson v. Warden


text: Talk:Gibson v. Warden

title: Talk:Gibson v. Warden