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Rh smiled the" cosmopolitan. "I do about all the drinking, and you do about all—the genial. But yours is a nature competent to do that to a large population. And now, my friend," with a peculiarly grave air, evidently foreshadowing something not unimportant, and very likely of close personal interest; "wine, you know, opens the heart, and—"

"Opens it!" with exultation, "it thaws it right out. Every heart is ice-bound till wine melt it, and reveal the tender grass and sweet herbage budding below, with every dear secret, hidden before like a dropped jewel in a snow-bank, lying there unsuspected through winter till spring."

"And just in that way, my dear Charlie, is one of my little secrets now to be shown forth."

"Ah!" eagerly moving round his chair, "what is it?"

"Be not so impetuous, my dear Charlie. Let me explain. You see, naturally, I am a man not overgifted with assurance; in general, I am, if anything, diffidently reserved; so, if I shall presently seem otherwise, the reason is, that you, by the geniality you have evinced in all your talk, and especially the noble way in which, while affirming your good opinion of men, you intimated that you never could prove false to any man, but most by your indignation at a particularly illiberal passage in Polonius' advice—in short, in short," with extreme embarrassment, "how shall I express what I mean, unless I add that by your whole character you impel me to throw myself upon your nobleness; in one word, put confidence in you, a generous confidence?"

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280 "I see, I see," with heightened interest, " something of moment you wish to confide. Now, what is it, Frank? Love affair?"

"No, not that."

"What, then, my dear Frank? Speak—depend upon me to the last. Out with it."

"Out it shall come, then," said the cosmopolitan "I am in want, urgent want, of money."

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

title: Page:The Confidence Man.djvu/294


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", charity!" exclaimed the cosmopolitan, "never a sound judgment without charity. When man judges man, charity is less a bounty from our mercy than just allowance for the insensible lee-way of human fallibility. God forbid that my eccentric friend should be what you hint. You do not know him, or but imperfectly. His outside deceived you; at first it came near deceiving even me. But I seized a chance, when, owing to indignation against some wrong, he laid himself a little open; I seized that lucky chance, I say, to inspect his heart, and found it an inviting oyster in a forbidding shell. His outside is but put on. Ashamed of his own goodness, he treats mankind as those strange old uncles in romances do their nephews—snapping at them all the time and yet loving them as the apple of their eye."

"Well, my words with him were few. Perhaps he is not what I took him for. Yes, for aught I know, you may be right."

"Glad to hear it. Charity, like poetry, should be cultivated, if only for its being graceful. And now, since

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 up on tongues of crimson flame washed over the Bowl brim, at which both clutched spasmodically, then lay still, clutched in their combined grip, to stare at that rainbow arch which still quivered and pulsed over the Bowl.

They knew the others had arrived. They heard the clear sound of bell chime, the song of the spheres. They saw Captain Ek at the Bowl brim fighting the grasp of Bjornsen and the two mechanics, but he shook off their detaining hands as if they were the fingers of children. Then the queenly figure smiled and winged above the arch, remained poised between earth and stars, and from that circle of dancing Nymphs came a young figure, golden-haired, warm-tinted, straight and strong, with her eyes downcast. And up the gleaming Arch toward her Captain Ek went. They saw that his face was suddenly young, his body slender, and he wore the look of youth.

There was one moment he stood clear against the glory, then her arms lifted, enfolded him, and the Arch was one arc of a wheel that revolved slowly as man and maid descended into the white central flame, and whirled faster and faster until human endurance broke before that vast and dreadful radiance.

Yet Crayne was not unconscious. He realized that the Light was gone except for the stars and soft aurora and that he was being carried over the hummocks and stretched on the couch of the Birmingham cabin. He was wakened in time by the sound of hammering as the mechanics repaired the broken wheel-axle and leaking cylinder. He felt Murphy sit on the side of the couch and clutch his wrist, and when he opened his eyes, Murphy was grinning.

"We got it," he said, "an' we got it good. Little lump o' rock it looks like. And we went for a swim in Bimini. Boy, oh boy, I'm only waitin' to try out that there youthstuff back home! But"—his grin was sobered and his voice slightly hushed—"the old man got across. And Bjornsen's gone."

"Bjornsen?" cried Crayne, jerking upright.

"Yeah. Nobody thought of him goin'. The ol' captain shook 'im off like a terrier shakes a rat, an' went. An' the wheel began to turn, they said, an' Bjornsen ran out on one o' the spokes an' the dames caught him, an' he was gone. They's just the two mechs an' Mose, an' you an' me. An' the boat'll be ready in an hour or so. An' here's all we got to show for that dip into glory water."

Murphy rolled two objects that looked like fragments of black glass, flaked unevenly; and, touching them, Crayne felt a tingling as of a mild galvanic battery charge, which was not so much sensation to the fingers as of ceaselessly working energy of the mass.

"Mose decided they was black diamonds an' he's bin cuddlin' 'em considerable, an' it's a funny thing but his wool is white as ours and losing its marcel kink."

"White—ours?" asked Clayne.

Murphy snatched a tiny shaving mirror from the wall and thrust it into Crayne's hand; then pulled off his fur cap. The boy's young face was framed

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174 homage to the memory of the departed ruler; for Boyer had been the "spoiled child" of Pétion and the commander of his body-guard. The new President was well informed for a man of his time. Of an upright and extremely thrifty nature, the first thing to receive his attention after his election was the finances, which were in a bad condition owing to the extreme generosity of his predecessor. He undertook also to restore peace and security in the Grand 'Anse, which since January, 1807, Goman had been harassing. At the beginning of 1819 Boyer despatched a strong body of men against Goman, who was completely defeated, and killed while trying to make his escape. This portion of the territory once pacified the President sought to restore unity in the Government of the country. Pétion's wise and kind policy had already provoked many defections among Christophe's followers. Monarchy was indeed a very heavy burden to the inhabitants of the Northern and Artibonite provinces, whilst under the Republic the people enjoyed more liberty. Comparisons were all in favor of the latter form of government, and, in order to maintain his authority, Christophe had to resort more and more to violence. He was aware of the fact that a struggle between his troops and the republican soldiers would be detrimental to his cause. In consequence he was anxious to prevent being attacked by Boyer, who was more aggressive than Pétion. He found an obliging agent in the English Admiral Homer Popham. The latter went to Port-au-Prince in April, 1820, and did his utmost to induce the President to leave King Henri alone. Sir Homer was principally pleading the cause of the English commerce, which enjoyed great privileges in Christophe's dominion. However, he failed in his purpose, for Boyer refused to commit himself by any promise. The President had full knowledge of the fact that the people in the North and the Artibonite were in a great state of discontent and would avail themselves of the first opportunity of shaking off the yoke.


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 in snow-white curls. Crayne looked in the mirror and saw his own ruddy thatch was the color of ivory. His arms went out, his hand touched Murphy, and suddenly the boy had clutched him in a tight grasp of young arms.

"Maybe it's real, an' it's you an' me alone some day. We'd better keep, on speakin' terms." He tried to laugh, then suddenly dashed from the cabin.

In three hours the Birmingham was repaired and tested, and they set to work smoothing a stretch of ice where she could race for the take-off. In the galley cubby, Mose was singing jazz, and between preparations for a meal, darting to the mirror to stare at his white, straight hair. An excited but silent company took their last look at the reflection of that vast and awful source of the world's atomic energy, the light of which men call the Aurora Borealis.

Then the flight began, and with it an eery moaning of winds that blow between the worlds. They stood at salute, faces toward the Bowl, a gesture of honor and farewell to Captain Ek and Bjornsen.

Then came the fight with gales that howled, drove frozen snow like flails in a constant tattoo on the wings and body of the Birmingham, until she was tossed like a bird. The weary mechanics slept. Crayne was at the throttle. Mose crouched in a heap with the fragments of rock in his arms, his teeth chattering as he saw the strain on the faces of Crayne and Murphy.

Suddenly Crayne cried out, and Murphy leaped to his side.

"The stick's gone," he yelled above the fury of elemental cataclysms about them.

The end came suddenly—a downward plunge, a crash, then flames leaping. Crayne was on his feet in a moment. The cabin of the Birmingham had burst like an eggshell, and from it rolled Mose still clutching the rock, and Murphy. Of the others—the two sleeping mechanics—they had not sight or sound. Flame soared and roared, the black smoke streaked through the storm, and what had been a steel-thewed bird of flight was a roaring inferno, the heat of which must have brought merciful death to the poor wretches stunned by the crash.

Glowing framework was all that was left of her in but a few minutes. Crayne, Mose and Murphy faced the bitter blast without food, fire or shelter.

It was Crayne who roused the other two from stupefaction.

"We can't be far from the ship. We die if we hesitate. Let's go."

And buffeting the storm they went, three puny forms, without compass or star; went until Mose staggered from exhaustion and plunged on his face in the snow. Then without a word they lifted him, drew his arms over their shoulders and pressed on.

"But," said Crayne at the end of hours of torture, "it's true, I think. We were due to slip out when she crashed. We're due to go down now. Man can't live in this wind up here, and I'm not even tired. How about you?"

"Nope. Seems like it's right, boy. Bimini stuff, maybe. An' if that ain't a ship's mast-head light, I'm a liar. An' hear the dogs! We've come some distance, no rest, no grub, no anything. They was something in it. Bimini!"

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Rh As long as he was able to rouse his soldiers by the magic of his daring bravery, Christophe had still the possibility of maintaining his authority. But disease, on which he had not reckoned, made him impotent. On the 15th of April, 1820, whilst hearing mass in the church of Limonade, he fell heavily to the floor. The man before whom his fellow-citizens were made to bow their heads was laid low by a stroke of apoplexy. However, he did not die from this stroke, but he remained paralyzed. Locked up in his palace of "Sans-Souci," unable to ride on horseback as before, Christophe had no longer any means of stimulating the devotion of his followers. In consequence, on the 2d of October, 1820, Saint-Marc joined the cause of the Republic and asked the assistance of President Boyer. That was the signal for a general defection. On October 6 the Governor of Cap, General Richard, followed Saint-Marc's example. Christophe imagined that he could reduce even nature to submission; he resorted to a most extraordinary medication in order to regain the energy of which his poor paralyzed limbs were deprived: for over an hour he was vigorously rubbed with a mixture of rum and pepper (piment). In spite of this powerful stimulant, his strength failed at the very moment when he tried to mount his horse in order to lead his army. But with a stern determination not to give in he caused himself to be carried in a chair and placed in front of his palace, where, on the 8th of October, 1820, he reviewed his body-guard and intrusted them with the mission of subduing Cap. This body-guard, on whose faithfulness no doubt had ever been cast, was no sooner out of his presence than it went over to the insurrection, crying out, "Vive la liberté!" That same night Christophe had retired to his room, where the news of this defection reached him. He at once summoned his wife and his children, whom he loaded with tokens of his affection. After dismissing them, he ordered his servants to bring him fresh water, and after a bath he put on a spotless white suit. He then seized one of his pistols, pointed it


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 Over the snow, dogs streaked with yelps and howls, and from a star of light hung low over the ice that had hemmed her in came men of the Aurora to meet them.

They had pulled the beard of death, seen visions, dreamed dreams. Yet when they met the men of their own race they were silent.

"Commander Crayne, Lieutenant Murphy and Mose the Negro cook were the only members of the Birmingham's crew to return from the ill-fated flight to the magnetic pole," was the news account flashed south by the Aurora's "sparks." "The plane crashed and burned. A particularly marvelous display of northern lights was followed by the worst storm recorded in these latitudes, in which the plane crashed."

A later report told of the loss of the Aurora off the Grand Banks:

"The schooner Aurora is sunk, the last of a series of disasters of this ill-starred cruise. In spite of berg-finding apparatus and modern appliances, the Aurora struck a low-lying berg which opened her from stem to stern. Her crew saved themselves in boats that were picked up by fishermen. Commander Crayne, Lieutenant Murphy and the Negro cook, Mose Johnson, were on the bridge when the boats pulled away from the doomed vessel, having refused to go in the boats although there was room. The government cruiser Mohawk was dispatched to the scene of the disaster in hope that the three men had somehow survived."

Later dispatches:

"After a miraculous escape, clinging for hours to a floating raft with bitterly cold seas washing over them, Commander Crayne, Lieutenant Murphy and Mose Johnson were picked up by the Mohawk, little the worse for their dreadful experiences. These three men of the Birmingham, lost near the magnetic pole, seemingly bear charmed lives. The only statement Commander Crayne made was that he wanted a month's quiet; then he would plan for another northern trip of discovery. The will of Captain Ek, lost in Crayne's flight, has left his vast fortune to charity with only two individual bequests. His books are willed to Professor Bjornsen, who perished with him, and they will revert to his son, also a professor of sciences in Christiania. The other bequest is that of his estate in Norway to Commander Crayne, where Crayne and Murphy will go immediately."

Reading the news accounts, Murphy crumpled the paper and looked at Crayne.

"Dare you to swim the Atlantic and try out that Bimini stuff? he said.

"Bud," replied Crayne, "standing in the Aurora's wheelroom with locked doors when she slipped from the berg and sank in God alone knows how many fathoms, and us three coming up, catching a spar and living for two days and nights in berg-cold water, is proof enough for me. Bimini. Perhaps we have dipped in hell!"

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text: Buttered Side Down/The Frog and the Puddle


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176 at his heart, and pulled the trigger. On hearing the report of the shot the whole household rushed to his room; Henri Christophe was but a corpse and royalty had ceased to exist. President Boyer neglected none of the means which might bring under his rule that portion of territory hitherto under Christophe's authority. On October 16 he was at Saint-Marc; on the 21st he arrived at Gonaives, and on the 26th of October, 1820, he entered Cap, where the former subjects of Henri I decided to become part of the Republic. In this manner the secession with its possibilities of grave consequences for the future of the country came happily to an end. The union of all the Haitians was complete. Boyer was thus enabled to undertake the realization of the plan of Dessalines, who thought that Haiti should have no other limits than "those laid out for her by nature and the sea." After the expulsion of the French in 1809 the inhabitants of the eastern portion of the island had again acknowledged Spain's authority.


text: Avon Fantasy Reader/Issue 10/Bimini

title: Avon Fantasy Reader/Issue 10/Bimini


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Rh The vicinity of this Power had always made the Haitians uneasy; they were in consequence determined to embrace the first opportunity to get rid of it. Whilst at Cap-Haitien, Boyer had many interviews with secret agents sent by the inhabitants of the Spanish portion of the island. He in turn despatched to them trustworthy emissaries with the mission of directly preparing the way for the union of the whole country under one government. However, Nuñez de Caceres, one of the leaders of the uprising then being prepared against Spain, thought that it would be more advantageous to establish an independent State and to form with Haiti nothing more than an offensive and defensive alliance; according to his idea the new State was to become one of the Colombian Confederation. Boyer lost no time in taking the necessary measures for the frustration of this plan. Before Caceres had had time to give the signal for the insurrection, Monte-Christi and Laxavon hoisted the Haitian flag (November 15, 1821). On the night of November 30 and on December 1 Caceres and his followers took possession of the most important posts in the town of Santo Domingo; and the Spanish Governor, Pascal Real, unable to uphold Spain's authority, left the place on the 5th of December. Still believing in the possibility of carrying out his idea of independence, Caceres hoisted the Colombian flag and proclaimed the establishment of the Dominican Republic. But the public mind had already been won over to the cause of Haiti, the flag of which was floating over such important towns as Puerto-Plata, Macoris, Banica, Azua, etc. In support of these friendly demonstrations President Boyer, on the 16th of January, 1822, left Port-au-Prince at the head of 14,000 soldiers for Santo Domingo. The inhabitants of the former Spanish territory welcomed the President of Haiti and his army with the greatest enthusiasm. Nuñez de Caceres was unable to resist the trend of public opinion. Yielding to the wish of his fellow-citizens he hoisted the Haitian flag at Santo Domingo on the 19th of January, 1822. And on the 9th of February President Boyer entered the town,


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178 loudly cheered by the inhabitants. Without bloodshed both the former French and Spanish portions of the island became united and threw in their destinies one with the other; and for twenty-two years the Haitian flag floated over the whole island of Haiti. However, a few French colonists at Samana were striving to prevent this peaceful union. They still were slave-owners. At the first demonstrations on behalf of Haiti they had hastened to ask for the protection of the Governor of Martinique. In consequence a French squadron was despatched to Samana, which they found, upon arriving, already in possession of the Haitians. The firm attitude assumed by the new occupants compelled the French to withdraw. In this way was slavery abolished throughout the whole island. After organizing the administration and taking such measures as were necessitated by the circumstances, Boyer left Santo Domingo on March 10, and on the 6th of May, 1822, he was at Port-au-Prince.

Territorial unity having now become an accomplished fact, it remained for Haiti to strive to put an end to her misunderstanding with France. It was impossible to make the most of the riches of the island so long as there was the probability of an attack from the former mother country. Complete security could only be obtained through the recognition of Haitian independence by France. It was thought that Great Britain would gladly help in bringing about this result. In consequence, Pétion and Christophe unhesitatingly granted special privileges to British commerce. Boyer adopted the same policy. Whilst all foreign products had to pay an import duty of 12 per cent, those from Great Britain paid only 7 per cent; and when these products were imported by Haitian ships, the duty was further reduced to 5 per cent. Great Britain profited by these advantages but did not show the least inclination to lend assistance to Haiti. On the contrary, in the treaty additional to the Paris treaty, Great Britain promised not to counteract any of the means to which France might resort in order to "recover Saint-Domingue and


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Rh to subdue the inhabitants of that colony." And as it would be perhaps necessary to almost exterminate "the inhabitants of the colony" in order to subdue them, Great Britain, though requesting the abolition of the slave-trade, forgot for a while her philanthropic principles and authorized France to continue this barbarous trade for five years, as it would probably be the only way of repeopling the depopulated island. In spite of this attitude, greatly out of keeping with the commercial privileges which had been granted her, the Haitians had still the hope that Great Britain could be induced to recognize their independence and to help them to obtain the same recognition from France. But they were rudely disillusioned when, in 1823, Great Britain recognized the independence of Mexico, Colombia, etc., and refrained from recognizing theirs. They knew finally that they could not expect any assistance from this Power. In consequence, in 1825, they abolished all the privileges by which the British were profiting and ordered that henceforth the import tax of 12 per cent would be indiscriminately levied on all foreign products. As to the United States, Haiti had not even thought of having recourse to their intervention. In that country the partisans of slavery were at that time omnipotent. They naturally could not help bearing ill-will against the former slaves, who had not only created a sovereign State, but who had even dared to transform their territory into an asylum of freedom and liberty for the unfortunate human beings who, on account of their color, were elsewhere subjected to a shameful yoke. President Boyer had even sent an agent to New York to encourage the men of the black race to emigrate to Haiti. No wonder then was it that the United States recognized the independence of Colombia, etc., and ignored that of Haiti. Thus the young Republic, at the very beginning of its existence, found itself isolated and compelled to face the power of France without the sympathy of a single nation. But Haiti, with a sense of her responsibility,


text:
Verden v. Coleman

 * Verden v. Coleman (59 U.S. 86), ( 15 L.Ed. 272 ), ( 18 How. 86 )
 * Verden v. Coleman (63 U.S. 192), ( 16 L.Ed. 336 ), ( 22 How. 192 )
 * Verden v. Coleman (66 U.S. 472), ( 17 L.Ed. 161 ), ( 1 Black. 472 )

title: Verden v. Coleman


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180 remained undaunted and spared nothing in order to preserve her autonomy. French commerce was suffering no less than that of Haiti, owing to the bad feeling existing between the two countries. On both sides the necessity of coming to some kind of an agreement was felt. Still, France could not yet make up her mind to accept as an accomplished fact the loss of her colony. In 1821, after the failure of the agents sent to Pétion, she once again entertained the idea of forcibly establishing a protectorate over Haiti; with that end in view Mr. Dupetit Thouars was despatched to Haiti. Boyer, like his predecessor, flatly refused to take such a proposal into consideration. This evidently did not have the effect of discouraging France, as in 1823 another agent, Mr. Liot, was sent to Port-au-Prince. His instructions were to try to induce President Boyer to take the initiative in the negotiations for the acknowledgment of the independence of his country. In May the President of Haiti charged the French General, Jacques Boyé, who had given many proofs of his friendship to the Haitians, to enter into a parley with France. The French Government commissioned Mr. Esmangart to confer with the Haitian envoy. The two agents opened the negotiations at Brussels on the 16th of August, 1823. The Haitian plenipotentiary requested the full recognition of the independence of the Republic and, in return, offered freedom from all import duties, during the next five years, on all French products; and at the conclusion of that time the duties on French products were to be only one-half of the amount levied on all other foreign products. Mr. Esmangart refused to recognize the full independence of Haiti; he put an end to the parleys and left Brussels on the 22d of August. This last display of France's ill will produced a very bad impression in Haiti. On the 6th of January, 1824, President Boyer issued a proclamation ordering various energetic measures relative to the defense of the Haitian territory. Arms and ammunition were stored in the interior of the island, in all places which could serve as the basis of military operations. Once


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Rh more the country was preparing for war. The inhabitants were still in a state of great agitation when Mr. Laujon, the new agent of France, arrived in Haiti and requested President Boyer to take up the negotiations once more. Accordingly, two Haitian agents, Mr. Rouanez and Senator Larose, were again sent to France. They left Haiti on the 1st of May, 1824, and arrived at Havre on the 14th of June. The Haitian plenipotentiaries were at first taken to Saint-Germain, and afterward to Strasbourg, where they met Mr. Esmangart, the French agent. Upon their declaring that the negotiations could not be successfully carried on at so great a distance from Paris, the conferences were transferred to Meaux. The Haitian envoys kept their patience throughout all these changes and finally succeeded in arranging that the parleys be held in Paris. They were instructed to secure the recognition of the independence of Haiti, and in return to agree to the payment of an indemnity to the former colonists; the French products, however, were to enjoy no greater privileges than those granted to the more favored nations; and Haitian products were not to pay higher duties in France than importations from the French colonies. As soon as Larose and Rouanez had made known the views of their Government, the French agent raised a grave question. He contended that the King of France having in 1814 reconveyed the Spanish portion of the island to Spain was empowered to negotiate only for the French portion of Saint-Domingue. Since 1822 there existed neither a French nor a Spanish portion: the Republic of Haiti was in peaceful possession of the whole island. In consequence, the Haitian envoys refused to take into consideration any such discrimination and threatened to break up the parleys. They were then invited to confer directly with Marquis de Clermont-Tonnerre, the Minister of War and of the colonies. In an interview with him on the 31st of July they were astounded to learn that the King of France, whilst willing to recognize the independence of Haiti, intended,


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182 however, to retain the right to manage the foreign relations of the Republic. They energetically protested against such a pretension, and considering it useless to prolong the negotiations, they left France on the 15th of August. Their arrival in Haiti created great excitement. President Boyer at once acquainted the people with France's intention of forcing a protectorate upon them; he informed the Senate of the failure of his plenipotentiaries and summoned the most important among the generals of the Haitian army to Port-au-Prince. War appeared to be inevitable. Once more the necessary measures were taken in order to enable the country to repel a foreign invasion. Whilst resorting to the precautions rendered necessary by circumstances, President Boyer did not neglect to complete the organization of the Republic. A Civil Code, a Code of Civil Procedure, a Commercial Code, a Penal Code, and a Code of Criminal Instruction were successively enacted and proclaimed. The whole country was thus under the same laws. Whilst the Haitians, in spite of the ill will shown them abroad, were striving to consolidate their government, France harassed them still further by a humiliation in the guise of a favor. This was the act of Charles X, who bestowed on them as a charity the recognition of their independence. Without their consent, regardless of their desire in the matter, and without taking the slightest notice of the arduous negotiations which had been hitherto carried on, the haughty Bourbon signed, on the 17th of April, 1825, the following ordinance:

"Charles, by the grace of God, King of France and Navarre. "Wishing to attend to the interest of French Commerce, to the misfortunes of the former colonists of Saint-Domingue and to the precarious condition of the present inhabitants of the island; "We have ordered and order the following: "Art. I. The ports of the French part of Saint-Domingue shall be open to the commerce of all nations.


text:
United States v. Knight's Administrator (66 U.S. 488)

This cause (a California land claim brought here on appeal by the United States from the decree of the District Court) was reached on the docket at the present term, was called in its regular order, and was argued by counsel on both sides; the opinion of the court upon it was delivered, and a decree pronounced, that the decree of the District Court be reversed and the cause remanded, with directions to dismiss the petition of the claimant. (See ante, p. 227.)

At a subsequent day of the term, Mr. Reverdy Johnson, for the claimant, moved the court so far to modify its order entered therein, as to remand the cause to the court below for further evidence and proceedings, and offered in support of the motion sundry affidavits to show by this new testimony that the court had fallen into error in some conclusions of fact stated in the opinion, and also that some of the testimony was not within the knowledge or power of the appellee when the case was heard in the District Court, but has been discovered since.

Mr. Black, for the United States, hoped the court would relieve him from the duty of making an argument on the motion; thought that it ought not to be heard at all, and gave his reasons for that opinion.

Mr. Johnson maintained the propriety and regularity of the motion, and respectfully insisted on his right to be heard.

Mr. Chief Justice TANEY.


text: Talk:United States v. Knight's Administrator (66 U.S. 488)


text:
United States v. Knight's Administrator (66 U.S. 488)/Opinion of the Court

The court cannot receive the depositions, nor hear an argument upon the motion. The point has already been decided at the present term in the case of The United States vs. Hensley, and a similar motion overruled.

In the case of Southard et al. vs. Russell, (12 How., 139,) the court held that it could not look beyond the record as transmitted from the inferior court, nor suffer its judgment to be influenced in any respect by new testimony offered here. And that case was before us in the exercise of the general chancery powers conferred by the Constitution, in which a broad discretionary power may be exercised in order to promote the purposes of justice; for in a case prosecuted within that jurisdiction the defeated party, upon the discovery of new evidence, may, after a final decree in this court, obtain leave here to file a bill of review in the court below to review the judgment which this court had rendered. 16 How., 547.

But the jurisdiction which the court exercises in this case is a special one, created by act of Congress, and its mode of proceeding and powers are regulated and defined by the law; and it cannot, under any supposed analogy to proceedings in chancery, exercise any power beyond that which the act or acts of Congress have given. 6 Pet., 470, United States vs. Nourse. These acts of Congress give this court the power to hear and determine the case upon the proceedings and evidence taken in the court below certified to this court; but no power to receive or consider any new evidence, although discovered since the decree was passed. Indeed, it would have been inconsistent with the policy upon which these acts of Congress were passed to confer this power upon the court. This special jurisdiction was created in order to ascertain promptly the extent of the grants which had been made by the Mexican Government to private individuals, and how much of the public domain still remained in the hands of the Government at the time of the cession to the United States, and had become subject to the disposition of this Government. And if a proceeding like the one now proposed was sanctioned, it would lead to interminable delays in almost every case where the decision was against the claimant, and it would be difficult to say when the rights of the United States could be regarded as finally settled in any case while a Mexican still made claim to the land under what he might allege to be a Mexican grant. And we may judge, from the character of the testimony offered in the cases which have already been before the court upon these Mexican claims, what would be the extent of the fraud and perjury to which such a privilege would lead, when the claimant had learned from the decision of the court what were the weak points of his case, and was strongly tempted by the magnitude of his claim to seek for and discover some new testimony to cure its defects.

We do not doubt the power of the court to open the judgment it has rendered at the present term, and continue or rehear the case, if, upon the record before us, any one of the judges who concurred in the decision had since seen cause to doubt its correctness. But in the absence of any such doubt the motion of the appellee is overruled.

Motion refused.


text: Talk:United States v. Knight's Administrator (66 U.S. 488)/Opinion of the Court


text:
Gelpcke v. City of Dubuque (68 U.S. 220)

THIS suit differed from 80-the principal one-only in the fact that the bonds of the city, which in this case bore date 1st September, 1855, were issued prior to the passage of the act of 28th January, 1857, specially authorizing the city to subscribe to the railroads for which the bonds in No. 80 had been subsequently given. The bonds rested in this case (No. 81), therefore, on the charter of the city (approved February 24, 1847), authorizing it 'to borrow money for public purposes,' and on an act passed 25th January, 1855, before the bonds were issued, one section of which enacted that whenever 'any company shall have received, or may hereafter receive, the bonds of any city or county upon subscription of stock by such city or county, such bonds may bear an interest at a rate not exceeding ten per cent., and may be sold by the company at such discount as may be deemed expedient,' and which enacted also (§ 3), that 'the provisions of this act shall apply to any railroad bonds which have been heretofore issued, as well as to those which may hereafter be issued.'

Mr. JUSTICE SWAYNE, after stating the difference between the case and No. 80, and quoting this act, thus delivered the opinion of the court:


text: Talk:Gelpcke v. City of Dubuque (68 U.S. 220)


text:
Gelpcke v. City of Dubuque (68 U.S. 220)/Opinion of the Court

'In this act it is clearly implied that cities have authority to subscribe for railroad stock, and to issue their bonds in payment of it. What is implied in a statute is as much a part of it as what is expressed. (United States v. Babbitt, 1 Black, 61.) Considering the subject in the light of these acts, we entertain no doubt that the city possessed the power to issue these bonds.'

JUDGMENT REVERSED AND CASE REMANDED.


text: Talk:Gelpcke v. City of Dubuque (68 U.S. 220)/Opinion of the Court


text:
Milwaukee & Minnesota Railroad Co. and Fleming v. Soutter (69 U.S. 510)

BRONSON and Soutter had filed a bill in the Circuit Court for Wisconsin, against the La Crosse and Milwaukie Railroad Company, to foreclose a mortgage given by the said company to them to secure bonds to the extent of one million of dollars, which that company had put into circulation, and the interest to a large amount on which was due and unpaid. To this bill the Milwaukie and Minnesota Railroad Company-a company which, on a sale under a mortgage junior to that of Bronson and Soutter, was organized, and became, under the laws of Wisconsin, successor in title and interest to the La Crosse and Milwaukie Company, and also three other persons, one named Sebre Howard-were made or became defendants, and opposed the prayer for foreclosure. They alleged that the bonds which the mortgage to Bronson and Soutter had been given to secure, had been sold, transferred or negotiated at grossly inadequate prices, fraudulently in fact, and were not held for full value by these persons, who sought by the foreclosure to recover their par. The court below, being of this opinion, gave a decree in that suit to the extent of but fifty cents on the dollar. Coming here by appeal at the last term, the decree, after an animated, protracted, and very able argument in support of it by Mr. Carpenter, in behalf of numerous parties interested, was reversed, and a decree ordered to be entered below for the full amount, cent for cent. The suit, at the time of the decree here, had been pending for four years. The mandate from this court ran thus:

'It is ordered that this cause be remanded to the Circuit Court of the United States for the District of Wisconsin, with directions to enter a decree for all the interest due and secured by the mortgage, with costs; that the court ascertain the amount of moneys in the hands of the receiver or receivers from the earnings of the road covered by the mortgage, which may be applicable to the discharge of the interest, and apply it to the same; and that if the moneys thus applied are not sufficient to discharge the interest due on the first day of March, 1864, then to ascertain the balance remaining due at that date. And in case such balance is not paid within one year from the date of the order of the court ascertaining it, then an order shall be entered directing a sale of the mortgaged premises.'

Upon the filing of this mandate in the court below, the receiver was ordered to make report of the funds in his hands; from which it appeared that he had some $50,000 to $60,000 applicable to the payment of the interest on the bonds in suit.

The Milwaukie and Minnesota Railroad Company, who, as already stated, was an incumbrancer on the road, junior to Bronson and Soutter, insisted that instead of this small amount, there was really, or ought to be, in the receiver's hands, between $300,000 and $400,000 applicable to the payment of interest; and asked an order of reference to a master, with instructions to hear testimony, and ascertain and report on this claim. The court made the order, and postponed further action in the case, until the succeeding term in September. At that term it was ascertained that the master would be unable to report on the complicated accounts of the receiver, involving several millions of dollars; and the receiver was again ordered to report the funds actually in his hands. From this second report, it appeared, that he had no money properly applicable to the payment of the debt of Bronson and Soutter, and thereupon the court proceeded to ascertain the amount of interest due on the bonds secured by their mortgage, and entered a decree accordingly, giving the defendant a year to pay it, before a sale of the mortgaged premises.

From this decree the Milwaukie and Minnesota Railroad Company, the already mentioned successors in title and interest to the La Crosse and Milwaukie Railroad Company, appealed; the first ground assigned for their appeal being that the decree was a departure from the mandate of the court, because such decree should not have been rendered until the accounts of the receiver were adjusted, and it was judicially ascertained how much of the millions he had received ought now to be applied to the payment of complainants' interest.

But another matter was now presented here.

At the first term of the court below, after the mandate was filed, the Milwaukie and Minnesota Railroad Company proposed to pay all the interest due on the mortgage of Bronson and Soutter, on condition that an order should be made, discharging the receiver, and placing the road and its appurtenances in the possession of them, the Milwaukie Company, just named. Upon the hearing of this petition, the judges of the Circuit Court were divided in opinion, and the application so, necessarily, refused.

The amount of Bronson and Soutter's debt, above mentioned, exclusive of interest, which the Milwaukie and Minnesota Railroad Company proposed to pay, was one million of dollars; and this, added to twelve hundred thousand dollars of prior mortgages, made two millions two hundred thousand dollars, which the road and its appurtenances would have to be worth, in order to secure the debt of Bronson and Soutter. The road on which the mortgage was a lien is ninety-five miles, and runs from Milwaukie to Portage, besides the depots, rolling stock, and other appurtenances belonging to it. It was in good condition. It constitutes a part of the direct line from Milwaukie to the Mississippi, and is one of the valuable railroads of the United States. The gross earnings from this ninety-five miles for the year preceding the application to discharge the receiver, as shown by his reports, were about eight hundred thousand dollars; though the reports showed a large falling off in the receiver's receipts of later time.

In addition to the opposition made to this motion by Bronson and Soutter, it was opposed by one Sebre Howard, who, with the Milwaukie and Minnesota Railroad Company, had been a defendant to their bill, and on whose motion the receiver had been appointed. Howard objected to the discharge, because, as alleged, he had a judgment of $16,000 against the La Crosse and Milwaukie Railroad Company, which he asserted to be a lien on the road; though whether it was so or not, depended on some questions of fact and law, not perhaps quite clear. This court, assuming a certain state of facts, decided that he had; but it was said that facts had not been well explained to the court.

One Selah Chamberlain, too, opposed it; objecting to the discharge of the receiver, and particularly to delivering the property into possession of appellants, because, as he asserted, he himself was holder of a lien of over $700,000 in the road, and because that lien, according to his view, was secured by a lease which entitled him to the possession of the road. This same Chamberlain had been in possession under his lease for some time prior to the appointment of the receiver, under a contract with the La Crosse and Milwaukie Railroad Company, by which he bound himself to keep down the interest on the various mortgages on the road, including the one on which Bronson and Soutter had filed their bill. This he had failed to do, and he had actually abandoned the possession to the Milwaukie and Minnesota Company, who were in possession at the time the receiver was appointed. His judgment on a suit by the complainants had been assailed, and as it seemed, though counsel denied this view, declared to be fraudulent and void, by a decree of the District Court of the United States; but that question was not finally determined.

A third railroad company, called the Milwaukie and St. Paul Company, a rival company of the Milwaukie and Minnesota, whose relation to it will appear in the diagram below, also opposed the discharge.

This company was an organization created after the litigation already mentioned, as brought about by the proceedings of Bronson and Soutter to foreclose their mortgage, had commenced. It was no party to preceding suits. It owned the western end of the La Crosse and Milwaukie Railroad; that is to say, the road from Portage to La Crosse (one hundred and five miles), and was organized for the purpose of working a road, as its name imports, from Milwaukie to St. Paul; of course, the ownership and control of an eastern end was indispensable to the purpose. This company had procured, in June, 1863, an order from the District Court, that the receiver should deliver to them the eastern end of this road, and all its appurtenances, and they had used them from that day. This court, however, subsequently declared the proceeding of the District Court to have been without jurisdiction, and the order a usurpation of authority. The interest of this third company was, of course, of a strong character, for the necessities of their situation required that they should own an eastern end of the road, to complete their line from Milwaukie, one great terminus of the road to St. Paul.

Mr. Carpenter, for the appellants.

1. The proceedings had in the court below, by which the amount due on the bonds secured by the mortgage to Bronson and Soutter was ascertained and a decree entered, was not according to the direction of the mandate. The decree, indeed, gave the year to pay; but this, and all else that was done, was ordered before and without ascertaining what sum was in the receiver's hands. Now, the authority of the inferior court extends only to executing the mandate sent it. They cannot vary it, or give any other or further relief. Under that mandate the court was bound 'to ascertain the amount of moneys in the hands of the receiver,' and its authority to order a sale arose only 'IF' the amount was not sufficient to discharge the interest.

2. The appellants complain of the denial of their petition to the Circuit Court, since the cause was remanded, for leave to pay into court all the money due the complainants in this cause, and for possession of the mortgaged premises.

It is admitted that this order is not such as might be appealed from before a final decree. But, when an appeal is properly taken from a final decree, as it has been decided that the present one is, the appellant may be relieved from any interlocutory order or proceeding by which he is aggrieved. The continuance of the receivership until the final decree, or until the amount due the complainants is paid into court, is matter of discretion, and not reviewable here. But after the amount due the complainant had been fixed by a final decree, as that also has been this court, and the owner of the equity of redemption offered to pay that amount into court, the discharge of the receiver was demandable as a matter of right; and its refusal was error, which can be reviewed here.

The Milwaukie and Minnesota Railroad Company was owner of the equity of redemption. As such, it had the right to redeem all prior incumbrances, and the foreclosure under which it was organized extinguished all liens of a date subsequent to that of the mortgage, on the foreclosure of which it came into existence. It was, therefore, entitled to possession, unless some other person could show better right thereto.

Howard's lien was declared by this court to be extinguished. The language of the Supreme Court is this:

'Now it appears that each of these judgments were recovered after the date of the mortgage on the La Crosse and Milwaukie Company, upon the foreclosure of which the Milwaukie and Minnesota Company was formed. The liens of these judgments were cut off by its foreclosure; indeed, the judgment of Howard, of November, 1858, and the last judgment of Graham and Scott, which was recovered in 1860, never were liens upon any interest in the road of the La Crosse and Milwaukie Railroad Company.'

It will be said that this opinion was delivered under a mistake of fact. Perhaps it was so, and perhaps, in a proper proceeding in his case, it may be found that Howard has a valid subsisting lien; but, on this motion, we must consider the presumption to be the other way, and act accordingly.

Chamberlain's opposition demands more respect. He claimed possession under his lease and judgment, which, the case shows, had been vacated by the decree of the District Court. This decree may be erroneous, but cannot be questioned collaterally. It was rendered in a cause in which the complainant, as a judgment creditor, sought to vacate the lease and judgment.

The opposition of the Milwaukie and St. Paul Railroad has no foundation except in selfish interest. The motives of that company to keep the road out of the hands of its true owners, and in the hands of a receiver, interested in his commissions chiefly, are obvious when the topographical position of the rival companies is seen. It is a case where pecuniary motive is as strong as better reasons are weak.

Messrs. Cary and Carlisle, contra.

1. The mandate has been as well observed as in the nature of the difficulties it could be. The obligation of an inferior court to obey the order sent it, is not to be followed to the extent of sacrificing the spirit of the order to its letter.

The denying the appellant's motion to have the receiver pay the money in his hands into court, to discharge him, and to hand the road over to the Milwaukie and Minnesota Company, is so clearly a matter pertaining to the practice of the court below, and so entirely within the discretion of that court, that we have been surprised to hear counsel of Mr. Carpenter's ability, and regard to what positions he asserts, insist upon his right to appeal from it. Such matters must be left to discretion, if such a think as discretion is to exist in an inferior court at all. But if this court will consider a matter in which, from the nature of the case, we think it has no good opportunity to form a judgment, then we say that both the judgment of Howard and the claim of Chamberlain should control the question. The receiver was appointed on Howard's motion. This court has, indeed, said that his lien was discharged. Undoubtedly this idea proceeds on a misapprehension of fact. Howard's judgment in the State court against the La Crosse Company was recovered on the 1st day of May, 1858, and became a lien prior to the mortgage under which the Milwaukie and Minnesota Company sprung. This judgment was 'sued over' in the Federal court, and judgment obtained there November 28th, 1859; but the record, of course, discloses the original lien of his judgment. The opinion of this court mentions the Howard judgment in the Federal court, but makes no mention of the judgment in the State court upon which the judgment of the Federal court was founded. Suing over in the Federal court did not extinguish its lien.

Chamberlain or Howard-if anybody but the present receiver should have the road. Chamberlain was a judgment creditor and a lessee of the road. Counsel insist that the effect of that decree in the District Court was to vacate and annul the judgment and lease as to all the world, and that they are now of no force or effect, as between the parties thereto. But such, we apprehend, is not the effect in law. The effect of that decree was but to postpone the lease to the judgment of another party. The Milwaukie and Minnesota Company can claim no advantage from it.

The attack on the Milwaukie and St. Paul Railroad Company is gratuitous wholly. Legal rights are not to be denied it, merely because the granting of those rights are necessary to its interests and would greatly promote them. Yet this, in effect, is the argument of the other side.

Mr. Justice MILLER delivered the opinion of the court.


text: Talk:Milwaukee & Minnesota Railroad Co. and Fleming v. Soutter (69 U.S. 510)


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Milwaukee & Minnesota Railroad Co. and Fleming v. Soutter (69 U.S. 510)/Opinion of the Court

The first ground assigned for the appeal is, that the decree is a departure from the mandate of the court, because it should not have been rendered until the accounts of the receiver were adjusted, and it was judicially ascertained how much of the millions he had received ought now to be applied to the payment of complainants' interest coupons.

This construction of the mandate cannot be sustained. The receiver is the office of the court, and neither party is responsible for his misfeasance or malfeasance, if any such exists, and it was not, therefore, reasonable that complainants should be delayed in the collection of their debts until the close of a litigation over the receiver's accounts, which might occupy several years. The suit had already been pending four years, and the mandate required the Circuit Court, in its decree nisi, to give another year for the payment of the sum found due. To suppose that this court intended, in addition to these five years, to withhold the recovery of complainants for the additional uncertain period which might be necessary to litigate the receiver's accounts, is to impute to it a manifest injustice. The language of the mandate had reference to the sum actually the receiver's hands, properly applicable to the payment of this debt, and not to what it might turn out on full investigation ought to be there for that purpose. This court had no reason to suppose that there would be any controversy with the receiver on the subject, and framed its mandate on the supposition that all the money for which he would be responsible, would be at once forthcoming. If such is not the case, neither the loss nor the delay of ascertaining the fact was intended by this court to be imposed on the complainants. The decree of the court is, therefore, AFFIRMED.

But another order was made by the Circuit Court, of a very important nature, after the return of the case from this court, and before the decree just affirmed, which appellants seek to have reversed.

At the first term of that court after the mandate was filed, the appellant proposed to pay all the money due on complainants' mortgage, on condition that an order should be made discharging the receiver, and placing the road and its appurtenances in the possession of appellants. Upon the hearing of this petition of appellant, the judges of the Circuit Court were divided in opinion, and the application was thereupon refused, as it was not a division upon a subject which is authorized to be certified to this court for its action.

The appellant insists that this court shall now review the order of the Circuit Court on this subject; and while conceding that it is not such an order, as standing alone could be the subject of an appeal, contends, that as the record is properly here on appeal from the final decree which we have just considered, the whole record is open for our inspection, and that it is our duty to correct the error of which he complains in this particular.

There is no question but that many orders or decrees, affecting materially the rights of the parties, are made in the progress of a chancery suit, which are not final in the sense of that word in its relation to appeals. The order of the court affirming or annulling a patent, and referring the case to a master for an account, is an instance. The adjudications which the court makes on exception to reports of masters, often involving the whole matter in litigation, are not final decrees; and in these and numerous other cases, if the court can only, on appeal, examine the final or last order or decree which gives the right of appeal, it is obvious that the entire benefit of an appeal must, in many cases, be lost.

The order complained of in this case seems to be one of this class. The complainants are seeking a foreclosure of a mortgage with a view to make their debt. The owner of the equity of redemption in the mortgaged premises comes forward and offers to pay this debt, or all of it that is due, provided his property, which is in the custody of the court, shall then be restored to his possession. The right of the owner to this order is, under ordinary circumstances, very clear, and a refusal by the court to give him this right would seem to call for the revisory power of this court, when the whole case is before it, on the record brought here by appeal from a final decree.

The only doubt which the court could have on the question arises from the principle that the appointment and discharge of a receiver are ordinarily matters of discretion in the Circuit Court, with which this court will not interfere.

As a general rule, this proposition is not denied. But we do not think it applicable to the case before us. While the parties to this suit were fiercely litigating the amount of the mortgage debt, and questions of fraud in the origin of that debt, the appointment, or the discharge of a receiver for the mortgaged property, very properly belonged to the discretion of the court in which the litigation was pending. But when those questions had been passed upon by the Circuit Court, and by this court also on appeal, and the amount of the debt definitely fixed by this court, the right of the defendant to pay that sum, and have a restoration of his property by discharge of the receiver, is clear, and does not depend on the discretion of the Circuit Court. It is a right which the party can claim; and if he shows himself entitled to it on the facts in the record, there is no discretion in the court to withhold it. A refusal is error-judicial error-which this court is bound to correct when the matter, as in this instance, is fairly before it. That the order asked for by appellants should have been granted, seems to us very clear.

It was objected by the complainants that the receiver should not be discharged, because the security of the road and its appurtenances was not sufficient to insure the payment of their debt, and, therefore, its receipts should be applied to that purpose through the agency of a receiver.

The amount of complainants' debt, exclusive of the interest (which appellants proposed to pay), was one million of dollars, which, added to twelve hundred thousand dollars of prior mortgages, made the sum of two millions two hundred thousand dollars which the road and its appurtenances should be worth to secure complainants' debt. The road bed on which complainants' mortgage is a lien is ninety-five miles from Milwaukie to Portage, besides the depots, rolling stock, and other appurtenances belonging to it. It constitutes a part of the direct line from the former city to the Mississippi River, which is one of the most valuable routes in the United States, both present and prospective. The gross earnings from this ninety-five miles for the year preceding the application to discharge the receiver, as shown by his reports, were about eight hundred thousand dollars; and although these reports show a great falling off in the receiver's receipts since that time, the circumstances which have produced it are not of a character to incline us to continue the road in the possession of a receiver. The road was also in good repair. The decree which we have just affirmed authorizes the complainants, upon default in payment of any future instalment of interest, to apply for and have an order of sale of the road under that decree. Under these circumstances, when appellants propose to pay to me $300,000 or $400,000 of complainants' debt before possession is given, it is idle to say that the security of their debt requires the road still to be detained from its lawful owner.

Sebre Howard objects to the discharge of a receiver, because he has a judgment of $16,000 against the La Crosse and Milwaukie Railroad Company, which he claims to be a lien on the road; and as the present receiver has also been appointed receiver in his suit, he claims that his debt must first be paid before he can be discharged.

The idea of appointing or continuing a receiver for the purpose of taking ninety-five miles of railroad from its lawful owners, which is earning a gross revenue of $800,000 per annum, to enforce the payment of a judgment of $16,000, the lien of which is seriously controverted, is so repugnant to all our ideas of judicial proceedings that we cannot argue the question. If Mr. Howard has a valid judgment, the usual modes of enforcing that judgment are open to him, both at law and in chancery; but the extraordinary proceeding of taking millions of dollars worth of property-of such peculiar character as railroad property is-from its rightful possessors, as one of the usual means of collecting such a comparatively small debt, can find no countenance in this court.

Selah Chamberlain objects to the discharge of the receiver, and particularly to delivering the property into possession of appellants, because he says he has a lien of over $700,000 on the road, and because that lien is secured by a lease which entitles him to the possession of the road.

Mr. Chamberlain had been in possession under his lease for some time prior to the appointment of a receiver, under a contract with the La Crosse and Milwaukie Railroad Company, by which he bound himself to keep down the interest on the various mortgages on the road, including the one on which this suit is brought. This he had failed to do, and had actually abandoned the possession to the complainants in this suit, who were in possession at the time the receiver was appointed. His judgment was assailed, and declared to be fraudulent and void by a decree of the District Court of the United States. There is a question whether that decree is binding as between him and the present appellants, which we do not intend to decide here; but we refer to this fact as having strong influence on the question of the propriety of keeping the road in the hands of a receiver for his benefit, or delivering it to him if the receiver is discharged. We shall endeavor to protect his interest, whatever it may be, in any order that shall be made on the subject.

As to the Milwaukie and St. Paul Railway Company, who also resisted this application, we do not see that they have any legal interest in the matter; and the interest which prompts their interference is not such as the court can consider on an application of this kind.

In reference to all these parties we remark again, that the court deprives them of none of their rights to proceed in the courts in the ordinary mode to collect their debts, and that the appointment of receivers by a court to manage the affairs of a long line of railroad, continued through five or six years, is one of those judicial powers, the exercise of which can only be justified by the pressure of an absolute necessity. Such a necessity does not exist here; and the fact that so many years of the exercise of this power has not produced payment of any part of the debts which the receiver was appointed to secure, is an irresistible argument against his longer continuance.

The order of the court dismissing this application is, therefore, REVERSED, and the case remanded to the Circuit Court, with instructions to ascertain the amount due to complainants within some reasonable time to be fixed by said court, and to make an order that on the payment of that sum, with the costs of complainants, into court, the receiver shall be discharged, and the railroad from Milwaukie to Portage City, with all the appurtenances, rolling stock, and other property, real and personal, belonging to said division of road, be delivered by said receiver to the Milwaukie and Minnesota Railroad Company; but that no such discharge of the receiver, or delivery of the road and its appurtenances, shall be made until said company shall first enter into bond with sufficient surety to pay to Sebre Howard and Selah Chamberlain all such sums as may come into the hands of said company, which shall hereafter be found to be rightfully applicable to the payment of their claims, if they shall be established as liens on said road. And the appellants to recover their costs in this court.

ACTION ACCORDINGLY.


text: Talk:Milwaukee & Minnesota Railroad Co. and Fleming v. Soutter (69 U.S. 510)/Opinion of the Court


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Lee County v. Rogers (74 U.S. 175)

ERROR to the Circuit Court for Northern Illinois. The case, which involved two points, being this:

1. An act of Congress of the 28th of February, 1839, provides, that in all suits in any Circuit Court of the United States, in which it shall appear that both the judges, or the one who is solely competent to try the same, shall be in any way interested, or shall have been counsel, or connected with either party so as to render it improper to try the cause, it shall be the duty of such judge, or judges, on the application of either party, to cause the fact to be entered on the records of the court and make an order, that an authenticated copy thereof, with all the proceedings in the suit, shall be forthwith certified to the most convenient Circuit Court in the next adjacent State, or in the next adjacent circuit, which Circuit Court shall, upon such record and order being filed with the clerk, take cognizance thereof in the same manner as if such suit had been rightfully and originally commenced therein, and shall proceed to hear and determine the same; and the proper process for the due execution of the judgment or decree rendered therein, shall run into and be executed in the district where such judgment or decree was rendered; and, also, into the district from which such suit was removed.

A subsequent act, one of March 3d, 1863, provides, that whenever the judge of the Supreme Court for any circuit, from disability, absence, the accumulation of business in the Circuit Court in any district within his circuit, or from his having been counsel, or being interested in any cause pending, or from any other cause, shall deem it advisable that the Circuit Court should be holden by the judge of any other circuit, he may request, in writing, the judge of any other circuit to hold the court in such district during a time named in such request.

With these two acts on the statute-book one Rogers had brought suit, in the Circuit Court for Iowa, against the supervisors of Lee County, to recover the interest due by the county on certain bonds which it had issued, and for the payment of which interest, a tax was by the statutes of the State to be levied.

Having obtained a judgment against the county, and issued execution without getting any satisfaction, he applied to the same court for an alternative writ of mandamus upon the board of county supervisors (whose duty it was, by the laws of Iowa, to levy all taxes levied), to levy a tax sufficient to pay his judgment, or to show cause for not doing so. The writ having issued, the supervisors made a return showing cause, or what they set up as such. The case subsequently coming on for further proceeding, and both the judges of the Circuit Court for Iowa being interested in the matter as tax-payers of the county of Lee, the case was ordered to be transferred to the Circuit Court for the Northern District of Illinois.

Being now in that court, a motion was made to remand it, on the ground that the act first above quoted, the act, namely, of 1839, had been repealed by the subsequent one of 1863, and that, under this last act, if the two judges of the Circuit Court for Iowa were interested in the case, a circuit judge of some other district should have been requested to hold a court in the Iowa circuit, the case being left there. Instead of this the case had been transferred and the judge had been left in his district. The motion was, however, denied.

2. The case being thus in the Circuit Court for Northern Illinois, and a peremptory writ having issued thence, and the supervisors having refused to obey it, the relator's counsel moved that a writ should be issued 'according to section 3770 of the code of Iowa,' directed to the marshal of the United States for the district of Iowa, and commanding him to levy and collect the taxes named in the peremptory writ.

This section, 3770 of the code of Iowa, upon which the motion for the appointment of the marshal was based, is found in a chapter of the Iowa code, regulating proceedings in mandamus. It thus enacts:

'The court may, upon application of the plaintiff (besides or instead of proceeding against the defendant by attachment) direct that the act required to be done may be done by the plaintiff, or some other person appointed by the court, at the expense of the defendant; and, upon the act being done, the amount of such expense may be ascertained by the court, or by a referee appointed by the court, as the court or judge may order; and the court may render judgment for the amount of such expense and costs, and enforce payment thereof by execution.'

The court below accordingly issued the writ to the marshal, 'commanding him to levy and collect the taxes named in the said peremptory writ, and when collected to pay said judgment, interest, and costs therein named,' and in performing the said duty, requiring him to conform to the laws of the State of Iowa, for the collection of State and county taxes, as near as might be.

The case being here on error, it was alleged that the court below erred,

1. In overruling the motion to remand the cause to the Circuit Court of the United States for the District of Iowa; and,

2. In making an order for the appointment of the marshal of the United States, as a commissioner, to levy and collect the tax upon the property of Lee County.

Mr. McCrary, for the plaintiff in error, contended, that the act of 1863 was intended to supersede that of 1839. Great convenience and advantage arose to suitors, witnesses, attorneys, and others, by providing for calling a neighboring judge to try such cases. It was vastly more easy for a judge to come into an adjoining circuit than for counsel and witnesses to go by hundreds from State to State.

Several reasons might be assigned in support of the second allegation of error; but a conclusive one, he argued, was, that so far as anything appeared here, the chapter of the Iowa code on which the court acted in appointing the marshal, had never been adopted by the Federal court below as one of its rules of practice. It thus had no force in that court. The decision in Riggs v. Johnson County last winter, on the subject of mandamus in this class of cases, was based expressly upon the ground that the rules and practice of the court authorized the issuing of writs of mandamus to enforce the levy of taxes in these cases, and it was upon a full review of the acts of Congress concerning the practice of the courts, that this conclusion was reached.

Messrs. Grant and Dick, contra,

1. Went into a minute examination of the act of 1839, and that of 1863, contending that the provisions were able to stand together, and were thus but cumulative. They gave two modes of proceeding where the judges were interested, &c. Either could be adopted, as was most convenient in the circumstances. The learned counsel contended—

2. That the chapter of the Iowa code in question, if never otherwise adopted, had been sufficiently adopted for this case, by being completely acted upon in it.

Mr. Justice NELSON delivered the opinion of the court.

title: Lee County v. Rogers (74 U.S. 175)


text: Talk:Lee County v. Rogers (74 U.S. 175)

title: Talk:Lee County v. Rogers (74 U.S. 175)


text:
Lee County v. Rogers (74 U.S. 175)/Opinion of the Court

I. It will be observed on a comparison of the act of 1839 with the subsequent one of 1863 that they are very different from each other in their general purpose, scope, and intent. The first provides only for the removal and trial of a suit in which the judges are disqualified to try the particular cause on account of interest, or having been counsel or connected with either party. The second act is more general, and in the events named the judge is to be invited to hold the court for a given session or term, to be named. It is true that the reasons assigned in the section for calling on the judge embrace two of those assigned in the act of 1839 for the removal to an adjacent court, namely: interest, and having been counsel; but this enumeration is not of much importance in the interpretation of the act, for after the enumeration it is added, or 'from any other cause;' so that the judge would be authorized for a cause not enumerated to call in the judge to hold a session for any time specified, and during which he would no doubt be fully competent to try any cause coming even within the enumeration. The frame of the section, we think, shows that the main purpose of the provision was to procure a judge to hold a session or term of the court, and not to try a particular cause which the resident judge was incompetent to try. But the more decisive difference between the two acts is that the power conferred by the latter is permissive and discretionary, whereas the former is express and mandatory. The action of the judge in the latter act depends upon the question whether or not he deems it advisable that the circuit judge of another circuit shall be called in; in the former it is made the duty of the judge, on the application of either party, to cause the fact to be entered in the records of the court, and to make the order of removal. In the latter act it is also discretionary with the judge requested to hold this circuit. The condition of his own circuit may render it inexpedient, or his refusal unavoidable; in the former it is the duty of the circuit to which the cause is removed to take cognizance of the same and try it as if originally brought in that court. We are of opinion therefore that there is no necessary repugnancy between the two acts, and although in some particulars the two provisions have reference to the same subject, and for the purpose of remedying a common inconvenience, there are no negative words in the latter act, and to this extent the remedy may be well regarded as simply cumulative.

II. The next question is as to the appointment of the marshal as a commissioner to levy the tax in satisfaction of the judgment.

This depends upon a provision of the code of the State of Iowa. The provision is found in a chapter regulating proceedings in the writ of mandamus; and the power is given to the court to appoint a person to discharge the duty enjoined by the peremptory writ which the defendant had refused to perform, and for which refusal he was liable to an attachment, fine, and imprisonment. It is given by way of an alternative proceeding in execution of the peremptory writ in lieu of the attachment, and is express and unqualified. The duty of levying the tax upon the taxable property of the county to pay the principal and interest of these bonds was specially enjoined upon the board of supervisors by the act of the legislature that authorized their issue, and the appointment of the marshal as a commissioner in pursuance of the above section is to provide for the performance of this duty where the board has disobeyed or evaded the law of the State, and the peremptory mandate of the court.

This section is but a modification of the law of England and of the New England States, which provide for the execution of a judgment recovered against a county, city, or town, against the private property of any individual inhabitant, giving him the right to claim contribution from the rest of the people.

It is said that this practice prescribed for the State courts of Iowa has not been adopted by the United States circuit for that district, and hence that it is not competent for the court in the present instance to follow this mode of proceeding. But the answer is that the court having charge of the cause under the act of 1839, is fully competent to adopt it in the particular case, as its power is the same over it as if it had been a suit originally brought in the court.

JUDGMENT AFFIRMED.

Mr. Justice MILLER did not sit in this case.


text: Talk:Lee County v. Rogers (74 U.S. 175)/Opinion of the Court


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Page:Haiti- Her History and Her Detractors.djvu/318

282 ends in view he will lay aside every cent he can possibly spare. In spite of his apparent carelessness, of his fondness for enjoyment, especially in the form of dancing, the Haitian peasant is more thrifty than the men of the towns and cities, the latter as a rule spending all that they can earn. The Haitian people are noted for their hospitality and the kind welcome they extend to foreigners. In the country parts as well as in the towns a stranger is always sure of finding shelter. One can travel without fear all over the island; no one would think of molesttingmolesting [sic] a traveler, even were it known that he had his pockets full of gold. Foreigners, men and women, who have ridden all about the country know perfectly well that they can do so in all security; not only will the Haitian peasant not think of stealing, but he will even often refuse any remuneration for the hospitality he so readily offers. The best room, the best bed, in the humblest abode, is given to the transient guest, whom in all probability they will never again see; they set their choicest dishes before him. And what is the reward of this kind-hearted people? Many a time the very foreigner who has taken the greatest advantage of the hospitality of the Haitian peasants will be the first to represent them as returning to barbarism, as adepts of Vaudou, snake worshippers, and even as cannibals. There are men who hunger so for notoriety that in order to obtain it they do not hesitate to resort to falsehoods of the most flagrant type. The truth is of very little account to a certain class of travelers. Provided that their sensational books be sold, what matter to


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Page:Cournot Theory of Wealth (1838).djvu/44

 30 business as the science of exchange. This science, which can be summed up in a table found everywhere, should not distract our attention. In other words, we have nothing to do with nominal exchange, but only with actual exchange, i.e. the ratio between the values in exchange of the same weight of fine silver according as it is payable in different places. It is plain also that the cost of exchange, or the difference of the ratio of exchange from unity, cannot exceed the cost of transportation of this weight of fine silver from one place to the other, when free trade in the precious metals is allowed between the two places, or the cost of transportation plus the expense of smuggling when this trade is embarrassed by prohibitory laws. To find the equations of exchange, we will suppose, to begin with, that the cost of exchange is less than the cost of transportation, or that the exchange takes place without any real transportation of money, without any change in the distribution of the precious metals between the two commercial centres.

14. Let us suppose at first only two centres of exchange. Let us designate by m1,2 the total of the sums for which the centre (1) is annually indebted to the centre (2); and by m2,1 the total of the sums for which the place (2) is annually indebted to the place (1); by c1,2 the rate of exchange at the place (1) on the place (2), or the amount of silver given at the place (2) in exchange for a weight of silver expressed by 1 and payable at the place (1).

Adopting this notation, and starting from the hypothesis that the two places balance their account without transporting money in either direction, it is plain that we shall have


text:
Page:Cournot Theory of Wealth (1838).djvu/45

 Rh

We have in general $$c_{2,1}=\frac{1}{c_{2,1}}$$, and in this particular case $$c_{2,1}=\frac{m_{1,2}}{m_{2,1}}$$

Whenever, therefore, the ratio $$\frac{m_{2,1}}{m_{1,2}}$$ only differs from unity by a quantity less than the cost of transportation of a monetary unit from one place to the other, the balance between the two places will be settled without actual transportation of money and by the mere effect of the rate of exchange.

Let us now suppose any number of places in correspondence, and let mi,k express generally the total of the sums annually due from the place (i) to the place (k), and ci,k the coefficient of exchange from (i) to (k). The number of these coefficients for a number of places (r) will be r(r—1); but, as in general, $$c_{i,k}=\frac{1}{c_{k,i}}$$, the number of coefficients to be determined is reduced at the outset to $$\frac{r(r-1)}{2}$$. Nor are all these coefficients mutually independent; for if, for instance,

$$c_{i,k} > c_{i,l} \times c_{l,k},$$

any one having to convey money from (k) to (i), instead of getting draft from (k) on (i), will find it cheaper to get one from (k) on (l) which he can exchange for one from (l) on (i). For the same reason it is impossible to have

$$c_{i,k} < c_{i,l} \times c_{l,k},$$


text: User:KarasuGamma

title: User:KarasuGamma


text:
User talk:Veggies21

Cheers, stephen (talk) 04:27, 29 September 2010 (UTC)

title: User talk:Veggies21


text:
Page:Buttered Side Down.djvu/11

BUTTERED SIDE DOWN shopping thoroughfare or a factory district.

A confession of this kind is not only good for the soul, but for the editor. It saves him the trouble of turning to page two.

This is a story of Chicago, which is a first cousin of New York, although the two are not on chummy terms. It is a story of that part of Chicago which lies east of Dearborn Avenue and south of Division Street, and which may be called the Nottingham curtain district.

In the Nottingham curtain district every front parlor window is embellished with a “Rooms With or Without Board” sign. The curtains themselves have mellowed from their original department-store-basement-white to a rich, deep tone of Chicago smoke, which has the notorious London variety beaten by several shades. Block after block the two-story-and-basement houses stretch, all grimy and gritty and looking sadly down upon the five square feet of mangy grass forming the pitiful front yard of each. Now and then the monotonous line of front stoops is broken by an outjutting basement delicatessen shop. But not often. The Nottingham curtain district does not run heavily to delicacies. [2]

title: Page:Buttered Side Down.djvu/11


text:
Thorington v. Smith

APPEAL from the District Court for the Middle District of Alabama, the case being this:

In November, 1864, Thorington being the owner of a piece of land adjoining the city of Montgomery, Alabama, sold it to Smith and Hartley, all parties being then resident of Montgomery. At the time of this sale the late rebellion was still in active operation and had been so for more than three years. Alabama, or this part of it, was at the time in the occupation of the military and civil authorities of the rebel States, and the Federal government exercised no authority there. There was no gold or silver coin in use, nor any notes of the United States, such as made the circulation of the loyal portion of the country. The only currency in any ordinary use, or in which current daily business could be at all carried on, were treasury notes of the Confederate States, notes in form and general aspect like bank bills, and by which the Confederate States of America promised to pay the bearer the sum named in them, 'two years after the ratification of a treaty of peace between the Confederate States and the United States of America.'

'The whole State of Alabama,' said the testimony in the case, 'was in a revolutionary condition, politically and financially. The value of all kinds and species of property was changing from week to week, and from day to day, and there was no standard of value for property. A large advance frequently took place in the price of property of different kinds within a day or two, say one hundred to two hundred per cent. Speculation pervaded the whole community, and individuals asked whatever they thought proper for any and everything they had to sell. There was no standard value or regular price for real estate at the time mentioned. Prices changed with the fortunes of war. As the prospects grew dark the prices advanced. While, however, the Confederate States treasury notes were the general and really the only currency used in the common transactions of business, there were occasional instances where sales of property were made on the basis of gold and of notes of the United States.'

The Confederate notes, though in fact imposed upon the people of the Confederate States, by its government, were never declared by it to be a legal tender.

The price agreed to be paid by Smith and Hartley, for the land which they purchased was $45,000. Of this sum $35,000 were paid at the execution of the deed in Confederate States treasury notes; and for the residue a note was executed thus:

MONTGOMERY, November 28th, 1864.

$10,000.

One day after date, we, or either of us, promise to pay Jack Thorington, or bearer, ten thousand dollars, for value received in real estate, sold and delivered by said Thorington to us this day, as per his deed to us of this date: this note, part of the same transaction, is hereby declared as a lien or mortgage on said real estate situate and adjoining the city of Montgomery.

W. D. SMITH.

J. H. HARTLEY.

The rebellion being suppressed in 1865, the Confederate States treasury notes became, of course, worthless, and Thorington, in 1867, filed a bill in the court below against his purchasers, who were still in possession, for the enforcement of the vendor's lien, claiming the $10,000 in the only money now current, to wit, lawful money of the United States.

The answer set up, by way of defence, that the negotiation for the purchase of the land took place, and that the note in controversy was made, at Montgomery, in the State of Alabama, where all the parties resided, in November, 1864, at which time the authority of the United States was excluded from that portion of the State, and the only currency in use consisted of Confederate treasury notes, issued and put in circulation by the persons exercising the ruling power of the States in rebellion, known as the Confederate government.

It was also insisted that the land purchased was worth no more than $3000 in lawful money; that the contract price was $45,000; that this price, by the agreement of the parties, was to be paid in Confederate notes; that $35,000 were actually paid in those notes; and that the note given for the remaining $10,000 was to be discharged in the same manner; and it was asserted on this state of facts, that the vendor was entitled to no relief in a court of the United States.

On the hearing below, a witness, who negotiated the sale of the land, was offered to show that it was agreed and understood that the note should be paid in Confederate States treasury notes, as the $35,000 had been. This witness described the note, however, as one payable at thirty days.

The court below, admitting the evidence to prove that the note was in fact made for payment in Confederate States treasury notes, and sustaining, apparently, the view of the purchasers that the contract was illegal because to be paid in such notes, dismissed the bill.

The questions before this court upon the appeal, were these:

1. Can a contract for the payment of Confederate notes, made during the late rebellion, between parties residing within the so-called Confederate States, be enforced at all in the courts of the United States?

2. Can evidence be received to prove that a promise expressed to be for the payment of dollars was, in fact, made for the payment of any other than lawful dollars of the United States?

3. Did the evidence establish the fact that the note for ten thousand dollars was to be paid, by agreement of the parties, in Confederate notes?

A point as to the measure of damages was also raised at the bar.

The case was twice argued.

Mr. P. Phillips, for the appellant (a brief of Mr. Chilton being filed):

1. There is no reason to suppose that the contract was entered into for the purpose of giving currency to the Confederate notes, and thus aiding the rebellion. And the question is not whether the issuing of these notes was illegal, but whether an agreement to receive them in payment of property, made the contract between the parties illegal. If there was no illegal design, the contract was not immoral. The contract, therefore, was legal.

The only question is, what must we hold it to mean.

The note now here on its face is clear and distinct. The promise to pay 'ten thousand dollars' has a well-under-stood, well-defined meaning. Whether made in Massachusetts or Alabama the rules applicable to its construction are the same. The issue presented by the answer is, that this contract did not represent the truth; that, in point of fact, the agreement was for a payment in an illegal currency of a mere nominal value. It is difficult to conceive of a more palpable contradiction of the legal effect of a contract than the admission of evidence to sustain this defence.

The cases are numerous where the struggle has been made to introduce parol evidence to explain the meaning of words, regarded by the court of doubtful import: such as 'current funds,' 'current bank notes,' 'currency.' But where, as in this case, a party has promised to pay so many 'dollars,' no authority will sanction evidence of an agreement that dollars meant not what the law says it meant, but something very different, to wit, Confederate treasury notes. All the authorities are the other way.

2. This question, as applicable to the condition of things set up in the answer, was considered in Roane v. Green, the court holding that it was not competent to prove by parol, on such a note, that Confederate treasury notes was the payment agreed on. In fact, as these notes were never made a legal tender by the rebel government nothing but coin would, even under it, be a discharge of the debt.

Indeed in all these cases of alleged contemporaneous agreements, it may be asked why the verbal condition, if bargained for, was not put in writing also? If the rest of the agreement was sufficiently important to authorize written evidence of its execution, why except the remainder? The obvious inference must be, that all that the parties did in fact agree to was put in due written form, and that all collaterals and appendages, concerning which there was mere conversation, was precisely what they could not agree upon. This, of course, is not always the true inference, but it is of necessity the legal inference.

3. The parol evidence offered, if competent, is insufficient. There was but one witness, and he misdescribes the note in one feature of it, the time namely that it had to run: a most important feature in view of the changes in values at the time when the note was given.

4. Another point not raised below, perhaps, but to which, if the court should think that the contract can be enforced, but not payment demanded in our now recognized currency, we would direct attention, is this. Confederate money is now wholly worthless. Payment in it is no payment at all. What, then, is the measure of damages? The peculiar circumstances of this case perhaps take it out of the rule announced in Thompson v. Riggs, that the value of the money at the time the note was payable is the criterion. The value of gold as marked by these treasury notes, fluctuated daily and hourly, and was different in different parts of the State. While it was 20, 30, or 40 to 1, these treasury notes had an exchangeable power of 2, 3, or 4 to 1 in the different species of property. It may well be that the vendor should have agreed that if the note was paid at maturity, it might be extinguished in these notes; but it by no means follows that in default of payment he was willing to be compensated by the value of these notes in gold.

If, therefore, the date of the maturity of the note is adopted for the purpose of ascertaining the damage, the measure should be, not the value as compared to gold, but rather its relative value in property.

No opposing counsel on either argument.

The CHIEF JUSTICE delivered the opinion of the court.

title: Thorington v. Smith


text: Talk:Thorington v. Smith

title: Talk:Thorington v. Smith