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Day v. Washburn (65 U.S. 352)

THIS was an appeal from the Circuit Court of the United States for the district of Indiana, sitting in equity.

Washburn made an assignment of his property to Keith, for the benefit of his creditors.

Day and Matlock, and Frothingham and Warner, citizens of Ohio and New York, filed a bill in the Circuit Court of the United States to set aside this deed as fraudulent. They alleged, as a reason for not sueing him at law, that he had no property upon which a judgment would be a lien, nor any that an execution would reach.

Other creditors of Washburn, upon simple contract debts, came in by a supplemental bill, and applied to be admitted to a distributive share of the assets.

The court ordered them to be distributed equally amongst the parties to the record, from which decree Day, &c., appealed to this court.

The case was submitted on printed arguments by Mr. Henderson for the appellants, and by Mr. Macdonald and Mr. Porter for the appellees. Mr. Henderson contended for a preference in favor of Day, &c., which the counsel for the appellees opposed.

Mr. Henderson's point upon this branch of the case was as follows:

3. The complainants contend that by filing their bill to avoid the assignment, they thereby obtained a specific lien on the assets in the hands of the assignee, and were, under the law of the case, entitled to be fully paid to the exclusion of the other creditors, whose equity is not superior to complainants. It is a well-established rule in equity 'that when the equities are equal, that title which is prior in time shall prevail.'

1 Story's Equity Jurisprudence, 400.

This rule applies as well to a case like the one before the court as to equities growing out of conveyances. With regard to cases like this, the general rule is laid down by numerous adjudications that a creditor may file a bill in his own name and behalf, and for his sole benefit, or he may file in behalf of himself and all others who may be entitled and may choose to come in. If he proceeds on his own account alone, and no lien has been gained or can be acquired at law, he acquires a specific lien by filing the bill, and is entitled to priority over other creditors.

1 American Leading Cases, 85.

Edmondson v. Lyde, (before referred to,) 1 Page R., 637.

Corning v. White, 2 Page R., 567.

Butler et al. v. Jaffray et al., 12 Ind. R., (now in press.)

Farnham v. Campbell, 10 Page R., 598-601.

Weed v. Pierce, 9 Cowen, 722-728.

U.S. Bank v. Burk, 4 Blackf., 141.

Miers and another v. the Maysville Turnpike Co., 13 Ohio R., 197.

Douglass v. Hamilton, 6 Ohio R., 156.

Wakeman v. Grover, 4 Page R., 23.

Russel v. Lasher, 4 Barbour S.C.. R., 232.

Burrell on Assignment, 600, 601.

Hobbs v. Bancraft et al., 4 Ind. R., 388.

1 Kent, note to 263-4.

Messrs. Macdonald and Porter opposed this view of the case, and added:

Whether the decree, so far as it directs a ratable distribution of the assets, was right or not, is not now before the court. The appellees do not and did not object to such ratable distribution. The question, so far as relates to that, is a question between the appellants and their co-complainants, and the latter are not made parties to the appeal. Of course, therefore, nothing affecting their interest will be adjudicated by this court.

7 Pet., 399; 16 Id., 521; 14 Curtis, 406.

Mr. Justice NELSON delivered the opinion of the court.

title: Day v. Washburn (65 U.S. 352)


text: Talk:Day v. Washburn (65 U.S. 352)

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title: Talk:Day v. Washburn (65 U.S. 352)


text:
Day v. Washburn (65 U.S. 352)/Opinion of the Court

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

The bill was filed in the court below by two mercantile firms, creditors of Washburn, against him and the assignee of his property, for the purpose of setting aside the assignment as fraudulent against creditors, and that the property might be applied in satisfaction of the complainants' demands. These demands were simple contract debts, not reduced to judgment.

The defendants demurred to the bill, and assigned, as the ground of the demurrer, the want of equity.

The court overruled the demurrer, and the defendants answered separately, among other things denying all fraud in the assignment. Replications were filed to the answers.

In this stage of the case, the other creditors of Washburn applied by petition to the court to be made parties to the bill, charging fraud in the assignment, and praying that it might be set aside, and the property and effects of the debtor be subjected to the payment of all his debts, and be divided equally among all the creditors.

The court ordered that these petitioning creditors become co-complainants, and referred the case to a master to take an account of what was due to each of the complainants, which account was duly taken, and a report made to the court; and afterwards the defendant, Keith, was ordered to bring into court the amount of moneys admitted by him to be in his hands, made out of the assigned property, amounting to the sum of $2,437; and then, at a subsequent day in the term, the court overruled a motion made, on behalf of the two firms who filed the bill, to have the moneys in court applied to the payment of their debts in preference to the other creditors; and adjudged the assignment fraudulent as to creditors, and directed that the whole fund be distributed ratably among all of them, according to their respective demands, and referred the case to a master to make the distribution; and, on his report, confirmed the same.

The case is before us on appeal by the two firms who filed the bill, alleging for error the refusal of the court to give them preference in the distribution of the assets.

The proceedings in the case have not been conducted with much regularity, but the principles of equity governing the rights of the parties concerned are very well settled, and the application of them to the facts as presented will satisfactorily dispose of it.

The court of chancery does not give any specific lien to a creditor at large, against his debtor, further than he has acquired at law; for, as he did not trust the debtor on the faith of such lien, it would be unjust to give him a preference over other creditors, and thus defeat a pro rata distribution, which equity favors, unless prevented by the rules of law. It is only when he has obtained a judgment and execution in seeking to subject the property of his debtor in the hands of third persons, or to reach property not accessible to an execution, that a legal preference is acquired, which a court of chancery will enforce. (2 John., ch. 283; 4 Ib., 691.)

The two firms, therefore, who filed the bill, the appellants here not having reduced their demands to judgment and execution before seeking relief against the fraudulent assignment of the debtor, are not in a situation to set up any claim to a preference over the other co-complainants, or to object to an equitable distribution of the assets among all the creditors.

Indeed, the principle upon which the bill seems to have been drawn, and is now sought to be sustained, would preclude any preference in favor of the appellants-which is, that the debtor's property, in the hands of the assignee, constituted a fund for the benefit of creditors, which a court of equity only could reach, and hence that the creditor had a right to the interposition of the court, without first obtaining a judgment and execution. It is true, where a specific fund has been assigned or pledged for the benefit of creditors, and it is necessary to go into a court of chancery to make a distribution among them, the equitable lien of each creditor upon the fund lays a sufficient foundation for the interposition of the court. It will enforce this equitable lien thus arising out of the assignment or pledge for the benefit of the creditors, in the exercise of its own appropriate jurisdiction. But in all these cases, chancery, upon its own principles, distributes the fund pro rata among all the creditors, unless preference in given in the pledge or assignment of the fund. In the present case, as the assignment was made to Keith, in trust for the benefit of creditors, if the bill had been filed to enforce the trust, no judgment or execution would have been necessary, as preliminary steps to the interposition of the court; but in that case the appellants would not have been entitled to a preference, as none was given to them in the trust deed, but the contrary.

For this reason, doubtless, the bill was filed to set aside the deed as fraudulent, with a view to defeat the preferences given therein to other creditors. The objection that the demands of the appellants had not been reduced to judgment and execution before filing the bill, would have been fatal to the relief sought, if taken in time by the defendants. It was waived, however, both as respected the appellants and the other co-complainants; and, as the court was left unembarrassed by the objection, it was right in proceeding to dispose of the property and effects of the debtor, and to make the proper application of them; and, as we have seen neither of the creditors had acquired a preference at law, the application in chancery, upon its own principles, was a ratable distribution among all the creditors as decreed by the court below.

Decree affirmed.


text: Talk:Day v. Washburn (65 U.S. 352)/Opinion of the Court


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Tate v. Carney

THIS case was brought up from the Supreme Court of the State of Louisiana holding sessions for the eastern district of Louisiana, being issued under the twenty-fifth section of the Judiciary act.

The head note has given an outline of the case so that the reader can understand it; and the opinion of the court contains a full statement.

Tate was sued in the court below, and disclaimed title otherwise than as one of the heirs of Nancy Tate, whose other heirs then intervened.

Carney and the others claimed under Yair's title.

The Supreme Court of Louisiana rejected the claim of the heirs of Nancy Tate, who brought the case up to this court.

It was submitted on a printed argument by Mr. Benjamin for the plaintiffs in error, and argued by Mr. Taylor for the defendants.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Tate v. Carney


text: Talk:Tate v. Carney

title: Talk:Tate v. Carney


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Tate v. Carney/Opinion of the Court

This cause comes before this court by a writ of error to the Supreme Court of the State of Louisiana, under the 25th section of the Judiciary act of September, 1789. The dedendant in error (Carney) commenced a suit in the District Court of the 8th judicial district of Louisiana, in which he asserted that he had purchased, in the year 1844, at the probate sale of the succession of Sarah Cohern, deceased, five hundred and sixty acres of land on Cool creek, in that district, and that Charles Tate had disturbed his possession and denied his title. He summoned Charles Tate to exhibit his claim to the land, and required the representatives of Sarah Cohern, deceased, to maintain the title they had warranted to him, or to refund the purchase money he had paid. The result of various proceedings in the District Court was the forming of an issue between the defendant in error and the plaintiffs in error relative to their respective rights in the said parcel of land. It is situated in the section of country east of the Mississippi river and the island of New Orleans, and west of the Perdido river, which was claimed by the United States under the treaty of Paris of 1803, for the cession of Louisiana, and which was adversely claimed and possessed by Spain as a portion of West Florida until 1812-'13. The act of Congress for ascertaining the titles and claims to lands in that part of Louisiana which lies east of the Mississippi river and island of New Orleans, approved 25th April, 1812, is the first of the series of acts that apply to this district. 2 Stat. at Large, 713. The 8th section requires the commissioners to be appointed under the act to collect and report to Congress, at their next session, a list of all the actual settlers on land in said districts, respectively, who have no claims to land derived either from the French, British, or Spanish Governments, and the time at which such settlements were made. The reports made by the commissioners appointed under the act of 1812 were submitted to Congress, and are the subject of the act of the 3d March, 1819, for adjusting the claims to land, and establishing land offices in the district east of the island of New Orleans. 3 Stats. at Large, 528.

The third section of this act provides, 'that every person whose claim is comprised in the lists or register of claims reported by the said commissioners, and the persons embraced in the list of actual settlers not having any written evidence of claim reported as aforesaid, shall, when it appears by the said reports or by the said lists that the land claimed or settled on had been actually inhabited or cultivated by such person or persons in whose right he claims, on or before the fifteenth of April, 1813, be entitled to a grant for the land so claimed or settled on as a donation; provided that not more than one tract shall be thus granted to any one person, and the same shall not contain more than six hundred and forty acres. By the 9th section of this act, the register and receiver of the land offices in that district were authorized to make additions to the list of settlers, noting the time of their settlement, and to report the same to Congress. These, with other reports, were disposed of in the supplementary act for adjusting land claims in that district, adopted 8th May, 1822. 3 Stats. at Large, 707. The third section of the act of 1822 is in the same language as the corresponding section in the act of 1819 before cited. The sixth section of this act requires the register and receiver to grant a certificate to every person who shall appear to be entitled to a tract of land under the third section of the act, setting forth the nature of the claim and the quantity allowed. In 1820, Robert Yair made proof in the land office that in the year 1805 he had settled upon a parcel of land in the district, and had occupied and cultivated it from that time until the date of his application and proof. His claim was reported to Congress, and in 1824 a certificate issued to him for that land, which is the land in controversy. Robert Yair continued to occupy the land until his death, in 1825 or 1826, when it passed to his widow and heirs. The defendant in error (Carney) traces his title to these heirs. The claim of the plaintiffs in error is traced to Nancy Tate, their ancestress, who made a settlement in the same district in 1811, and whose claim was reported under the act of 1812, before cited.

In the year 1847, her heirs applied to the register and receiver of the land office in that district for an order of survey, in which application they represented that Nancy Tate was entitled to a section of land under the acts of Congress aforesaid; that she had settled upon public land in an adjoining section, forty-one; that John Tate was settled upon the same section; and that both could not have their complement of land, from their proximity, out of land contiguous to their settlement. But that there was vacant land to the east and northeast, not claimed by any person, sufficient to make up the quantity she had been entitled to, and prayed for the order, as one that could not injure any other person. The register and receiver caused a notice to be served on the defendant in error, to show cause why the order should not be granted. There is no evidence that he appeared on this notice.

In February, 1848, the register and receiver made a decision, in which they declared that Nancy Tate had settled upon this land; that they were satisfied that Robert Yair, at the time of the confirmation to him, was the holder of another donation for one thousand arpents, and that he was not entitled to this under the act of 1822, for that reason. They annulled the certificate that had been issued to him, and granted the order of survey as applied for. The survey was made to include this land, and a patent was issued in favor of the representatives of Nancy Tate in 1853. This patent describes the land as covered by the claim of Robert Yair, and releases the land, subject to any valid right, if such exists, in virtue of the confirmed claim of Robert Yair, or of any other person claiming from the United States, the French, British, or Spanish Governments. The Supreme Court of Louisiana have found from the testimony that Nancy Tate was not an occupant of this land, and that the settlement of Robert Yair and his representatives had been continuous for some forty years. The question for the consideration of this court is, whether the decision of the register and receiver of the land office in favor of the plaintiffs in error is conclusive of the controversy. The Supreme Court decided that it was not, and we concur in that opinion.

In Doe v. Eslava, 9 How., 421, the defendant in error relied upon a decision of the register and receiver of a land office in the same district, with the same powers as were confirmed upon these, as conclusive in his favor. This court answered: 'We do not consider that the act of May 8th, 1822, and that of the same date, which is connected with it, and referred to as in pari materia, for a guide, meant to confer the adjudication of titles of land on registers and receivers. Sometimes, as in the case of pre-emptioners, they are authorized to decide on the fact of cultivation or not; and here, from the words used, no less than their character, they must be considered as empowered to decide on the true location of grants or confirmations, but not on the legal and often complicated questions of title, involving, also, the whole interests of the parties, and yet allowing no appeal or revision elsewhere. The power given to them is, to decide only how the lands confirmd shall be located and surveyed. The further power to decide on conflicting and interfering claims should apply only to the location and survey of such claims, which are the subject-matter of their cognizance; and on resorting to the reference made to the second act of Congress, that act appears also to relate to decisions on intrusions upon possessions and other kindred matters.'

The case of Cousin v. Blanc, 19 How., 203, involved a question of the effect and binding operation of a decision of the register and receiver of the land office upon a location and survey of a claim confirmed under the act of 1822, and refers to the act of the 3d March, 1831, as showing that the decisions of the register and receiver were not to be considered as precluding a legal investigation and decision by the proper judicial tribunals between the parties to interfering claims. 4 Stat. at Large, 492.

It furnishes no support of the argument that the decision of the register and receiver in such a case as this is conclusive of the title. There is no dispute in this case upon the subject of the location of the claim of Yair. The whole case shows that it had been identified and was actually possessed by Yair and his heirs. The patent of the defendants in error acknowledges that its location had been made, and that the new survey for the claim of Mrs. Tate covered this location. The decision of the register and receiver does not proceed upon any assumption of a conflict of location, but of a denial of the right of Yair. They had no authority to overthrow the decision of the register and receiver that had been made more than twenty years before, which had been followed by possession, and as to which there had intervened the claims of bona fide purchasers. It further appears that Mrs. Tate did not settle upon this parcel of land, and that the decision of the register and receiver in her favor is not supported by testimony. The judgment of the Supreme Court of Louisiana does not contain any error within the scope of the revising jurisdiction of this court, and it is consequently affirmed.

title: Tate v. Carney/Opinion of the Court


text: Talk:Tate v. Carney/Opinion of the Court


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Massey v. Papin

THIS case was brought up from the Supreme Court of Missouri by a writ of error issued under the 25th section of the Judiciary act.

The record was very voluminous, as it traced the title to land for a number of years. It is not necessary to follow this.

Mackay was the holder of a grant of land from Spain for 30,000 arpents, prior to 1819. In that year he gave a bond, by way of mortgage, in which he promised to convey fourteen-thirtieths of the land to Delassus, who assigned his interest in it to Leduc. In 1822, Mackay died, leaving a widow and eight children. In 1836, Congress confirmed the claim to Mackay or his legal representatives. In 1842, Leduc died, devising all his property to Hypolite Papin. Afterwards, in the same year, Papin died, devising all his property to his children equally. In 1854, Joseph L. Papin, one of the children, and the defendant in error, foreclosed the mortgage against the heirs and administrators of Delassus. It was sold, and Papin became the purchaser of fourteen-thirtieths of the 30,000 arpents. Papin then claimed a partition, which was resisted by Massey and others, who claimed under the heirs of Mackay. The Supreme Court of Missouri decided in favor of Papin, and the case was brought up to this court, where it was argued by Mr. Blair for the plaintiffs in error, and Mr. Glover for the defendant.

Mr. Justice CATRON delivered the opinion of the court.

title: Massey v. Papin


text: Talk:Massey v. Papin

title: Talk:Massey v. Papin


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Massey v. Papin/Opinion of the Court

This case is brought here by writ of error to the Supreme Court of Missouri.

In 1806, James Mackay presented his claim before the board of commissioners, sitting at St. Louis, to have confirmed to him 30,000 arpents of land. In 1809, the board rejected the claim.

In 1819, Mackay gave a bond in the nature of a mortgage on 14,000 arpents of the land to Delassus. Papin claimed as assignee of the mortgage, which he caused to be foreclosed, and purchased in the land, and took a title from the sheriff. Massey and others claim under Mackay's heirs.

The Supreme Court of Missouri decided that Papin, claiming under the mortgage of Mackay to Delassus, had a better title than Massey, who claimed under the heirs. And to reverse this decision, this writ of error is prosecuted.

The board of land commissioners of 1809 refused to confirm the claim; they were acting on the title as between the United States and the claimant. The Government had the power to grant the land in fee, regardless of the opinion of the board. Accordingly, in 1832, an act of Congress was passed organizing another board to examine this description of Spanish claims, which had been rejected by the old board. The new board, in October, 1832, recommended the claim for confirmation 'to said James Mackay, or his legal representatives.' James Mackay had died, and his heirs presented the claim the second time; and it is insisted that the confirmation to them by the act of 1836 rejected the mortgage of Delassus, and that the heirs took the unincumbered legal title discharged of the mortgage.

An imperfect Spanish title, claimed by virtue of a concession, was, by the laws of Missouri, subject to sale and assignment, and of course subject to be mortgaged for a debt. The heirs of Mackay took the lands by descent, with the incumbrance attached, and held them in like manner that their ancestor held. The grant of the lands to the heirs by the act of 1836 carried the equities of the mortgagee with the legal title, of which he took the benefit-a consequence contemplated by the mortgage itself; and if the assignment had been in its form a legal conveyance of the lands, the grantee would have taken a legal title. And to this effect are the cases of Bissel v. Penrose, 8 How., and Landes v. Brant, 10 How.

It is ordered that the judgment be affirmed.

title: Massey v. Papin/Opinion of the Court


text: Talk:Massey v. Papin/Opinion of the Court


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Amey v. Allegheny City

THIS case came up on a certificate of division in opinion between the judges of the Circuit Court of the United States for the western district of Pennsylvania.

The nature of the case is explained in the head note of this report, and fully set forth in the opinion of the court.

It was submitted on printed arguments by Mr. Knox for the plaintiff, and Mr. Loomis for the defendant.

Mr. Knox divided his argument into the following heads:

1. The words of the acts.

2. The purpose of the acts.

3. The interpretation put upon them by the Legislature.

Under the first head, he contended that the power to issue bonds was included in the power to subscribe to the capital stock; and referred to Commonwealth v. M. Williams, 1 Jones, 62.

Carr v. Le Feure, 3 Carey, 413.

McMasters v. Reed's Executors, 1 Grant's Cases, 36.

Commonwealth ex rel Hamilton v. Pittsburg, Pittsburg

Legal Journal, March 12, 1860, No. 35, pp. 274-276.

The popular use of the word 'subscribe' corresponds with the grammatical and legal meaning, as stated in the above cases. Allegheny city has placed this interpretation upon them, and no different construction ought now to be admitted.

The words 'certificates of loan' and 'bonds' are considered identical by several acts of the Legislature, viz: 21st of April, 1851, 18th April, 1853, May 8, 1854.

2. The purpose of the acts.

The purpose was to enable the city of Allegheny to contribute by the use of its credit to the making of this road, and bonds, with coupons, were the only kind of securities that would serve the purpose of the act.

2 Peters, 661; 3 Wheaton, 388.

3. The interpretation placed on the act by the Legislature.

The act of May 8, 1850, passed after the issue of the first set of bonds, recognised them as a debt of the city.

The two first points relate to the act of 1852, as well as to the first act.

Mr. Loomis confined his argument to the following propositions, viz:

1. Whether the several acts of Assembly mentioned in the case stated conferred any authority on the corporation of the city of Allegheny to give bonds, with coupons, as stated in the cause.

2. Whether such bonds and coupons are null and void by reason of such want of authority.

3. Whether they are null and void for any other irregularity connected with their issue.

Upon the first point, Mr. Loomis expatiated upon the unreasonableness and injustice of binding the property of one man by the will of another, which was not sanctioned by the Constitution of Pennsylvania.

The only power given to the corporation was to subscribe, which might, perhaps, have given the railroad company a right of action. Under the city charter, no authority to issue the bonds existed; by the delegation of the authority to subscribe, none was conferred. The plaintiffs took the title at their peril. The public interest requires that corporate functionaries should be kept strictly within the pale of their authority and duty.

[Mr. Loomis then cited a number of authorities in support of these positions. His argument upon the other points must be omitted for want of room. The above notice constitutes but a faint outline of the arguments of both counsel.]

Mr. Justice WAYNE delivered the opinion of the court.

title: Amey v. Allegheny City


text: Talk:Amey v. Allegheny City

title: Talk:Amey v. Allegheny City


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Amey v. Allegheny City/Opinion of the Court

This case has been sent to this court on a certificate of division of opinion between the judges of the Circuit Court for the western district of Pennsylvania.

The plaintiff has sued the mayor and aldermen and citizens of Allegheny city, in actions of debt, upon several coupons of bonds which were issued by that corporation, and made payable to the Ohio and Pennsylvania Railroad Company, in payment for two subscriptions, of two hundred thousand dollars each, to the stock of the latter.

It was agreed by the parties upon the trial of the cause to submit it for the opinion of the court upon a statement, in the nature of a special verdict, and that verdicts upon the coupons should be entered accordingly.

The judges, however, in their consideration of the case, differed in opinion on the following points: 'Whether the several acts of Assembly recited in the case stated conferred any authority on the corporation of the city of Allegheny to issue bonds with coupons, as had been done, or whether the same are altogether null and void, by reason of such want of authority, or for any other irregularity connected with their issue.'

It is admitted that the bonds were issued and delivered in payment for subscriptions of stock to the Ohio and Pennsylvania Railroad Company; that they were made payable to that company or its order; that the company had negotiated them to raise funds to construct the road, and that the road had been completed in conformity with the conditions of the subscriptions of the defendants.

The parties agree that the subscriptions had been made by the authority of acts of the Legislature of the State of Pennsylvania, in conformity with the charter of the railroad company, and were intended to be in pursuance of resolutions and ordinances of the select and common councils of the city of Allegheny.

The mayor was first instructed to subscribe for four thousand shares of the capital stock of the Ohio and Pennsylvania Railroad Company, to be paid for in bonds, with coupons attached for interest, payable semi-annually, the bonds having twenty-five years to run. The railroad agreed to pay the interest upon the bonds until the completion of the road, or so much of it as may be adequate to pay the interest, and that the proceeds of the bonds were to be applied to the construction of the road from the city of Allegheny to the mouth of the Big Beaver river, about twenty-five miles. And to secure the city and the bondholders, it was stipulated, in addition to the legal obligations incurred in making the subscription, that the stock, with the interest, earnings, and dividends of the road, should be pledged to pay the interest, and finally to redeem the bonds. Accordingly two hundred bonds of $1,000 were prepared, and were delivered to the railroad company, on the 1st of January, 1850, and the city at the same time received a certificate of four thousand shares. The coupons now sued upon were a part of those which were attached to those bonds.

The second subscription was made in virtue of another act of the Assembly of Pennsylvania, and in compliance with a resolution of the city, dated June 19th, 1852. That act authorized the city to increase its subscription to the capital stock of the railroad company, to any amount not exceeding its first subscription, upon the laws and conditions which had been prescribed for the first; but it restrained the city from making an issue of bonds of a less denomination than $100. The act also exempts the stock from the payment of any tax in consequence of the payment of any interest to stockholders, until the net earnings of the company shall realize six per cent. per annum on the capital stock. The city authorities passed an ordinance for this additional subscription, but it was not published in compliance with the charter of the city, nor was it recorded in the manner which it is said the charter requires the city ordinances to be. For those neglects, it is said the ordinance was null and void, and that the city had not the power to make the second subscription under the act of the Legislature. But the city bonds were issued, and the subscription was made. It is also objected that the ordinance was endorsed upon the bonds, without any proviso requiring the railroad company to pay the interest upon them according to its stipulation. But it is admitted that the road was built first from the city to the Big Beaver river, and afterwards completed to its termination on the western border of Ohio, and thence to Chicago.

The city continues to hold its stock in the railroad company. It has received five dividends from the company-one of $14,000, another of $16,000, another of $12,000-which were retained by the company by the consent of the city, and had been appropriated to the payment of the coupons for interest; and that $4,000 of those dividends had been paid in cash, and others in stock. Prior to the city's second subscription, it appears that the debt of the city had become $500,000, the limit prescribed by an act of the Legislature. That act is, 'that it should not be lawful for the councils of the city, either directly or indirectly, by bonds or certificates of loan of indebtedness, or by virtue of any contract, or by any means or device what soever, to increase its indebtedness to a sum which, added to the existing debt, shall exceed $500,000, exclusive of the subscription of $200,000 to the Ohio and Pennsylvania Railroad Company.'

It is admitted, also, that the stock of the city in the railroad company had been voted at all elections of it by order of the city, except in a single instance, when the city refused to vote. The city was incorporated on the 11th April, 1840, with all the powers and authorities then vested by law in the select and common councils of the city of Philadelphia.

We have given the agreed case of the parties in every particular in any way bearing upon the points about which the judges in the court below were divided in opinion, and will now consider them.

The subscriptions of the defendants were made under the acts of the 5th April, 1849, and that of the 14th April, 1852. The first permitted a subscription of $200,000, to be paid for by 'certificates of loan.' The second permitted the increase of it, to an amount not exceeding the first, without, however, having altered the manner in which the corporate credit of the city was to be used for the payment of the second subscription. We infer from the words of the act, and do not see how it can be otherwise, that it was to be paid for by the same certificates of indebtedness which the Legislature had directed to be issued and used for the payment of the first subscription. The act is, 'that the city of Allegheny is hereby authorized to increase its subscription to the capital stock of the said Ohio and Pennsylvania Railroad Company to any amount not exceeding the subscription heretofore made by the said city, upon the terms and conditions prescribed in regard to said previous subscription; provided no bond for the payment of the subscription shall be issued of a less denomination than one hundred dollars.' This proviso is merely an inhibition upon the city to use for the payment of the subscription any certificate of indebtedness less than $100; and the words 'no bond for the payment of the subscription shall be issued,' when considered in connection with the act authorizing the second subscription, that it should be made 'upon the same terms and conditions of the first,' cannot be interpreted into a permission or direction of the Legislature, that the city might use in payment for the stock any other legal or commercial instrument than 'certificates of loan.' Such certificates are well and distinctly known and recognised in the usages and business of lending and borrowing money, in the transactions of commerce, also, and for raising money upon the contract in them for industrial enterprises and internal improvements. They were formerly more generally known than otherwise as 'certificates of loan,' with certificates for interest attached, payable to the bearer at particular times within the year, at some particular place, being a part of the contract, from which they must be cut off to be presented for payment. But now, in their use, they are called bonds, with coupons for interest-a coupon bond-coupon being the interest payable separable from the certificate of loan, for the purpose of receiving it. But neither the instrument nor coupon has any of the legal characteristics of a bond, either with or without a penalty, though both are written acknowledgements for the payment of a debt.

Such certificates of loan have been resorted to for many years in the United States to raise money for internal improvements. They were as well known and used in Pennsylvania as elsewhere, and were permitted to be issued in that State, by just such enactments as those which authorized the city of Allegheny to subscribe to the capital stock of the Ohio and Pennsylvania Railroad Company. Such an issue was applicable to the subject-matter of legislation. The city solicited the State to be allowed to make the subscriptions. It was the policy of the State to grant the application. The subscriptions were made under the act of the 5th April, 1849, and that of the 14th April, 1852. The first permits a subscription of $200,000, which was to be paid for by certificates of loan. The act of the 14th April, 1852, allowed the increase of the subscription to an amount not exceeding the first, upon the same terms and conditions. It was the understanding of the Legislature, of the city, and of the railroad company, that the subscriptions were to be paid for by the corporate credit of the city by the issue of 'certificates of loan.' That appears from the act of 1849, authorizing it, before the subscription was in fact made. That act provides, in anticipation of its being done, that the certificates of loan which shall hereafter be issued by the city of Allegheny in payment of any subscription to the Ohio and Pennsylvania Railroad Company, were to be exempt from all taxation, except for State purposes. The railroad company took from the city certificates of loan in payment of the subscriptions, sold them as such, and with the money built the road. Such a concurrence of contemporaneous action by all the parties interested in the subject-matter of legislation, proves that it was the intention of the Legislature that the authority given to the city to make the subscriptions to the railroad company, had been carried out just as it was meant to have been.

We answer, therefore, that the several acts of Assembly stated in the agreed case did confer authority on the corporation of the city of Allegheny to issue certificates of loan, otherwise bonds with coupons, as was done, to pay for its first and second subscriptions to the capital stock of the Ohio and Pennsylvania Railroad Company.

We will now inquire whether the bonds or certificates of loan which were issued are null and void 'for any irregularity connected with their issue.'

It is said there were two irregularities which made them so. The first is, that the debt of the city had reached its limit of $500,000 prior to the second subscription. The second is, that the city ordinance authorizing the issue for the payment of the subscriptions was null and void, from not having been published in conformity with the charter of the city.

The first objection depends upon the proper construction of the act of 8th May, 1850, section 4, in connexion with the act of the 14th April, 1852, which authorized the second subscription. The first declares that the indebtedness of the city should not be made to exceed five hundred thousand dollars, exclusive of the subscription of two hundred thousand dollars to the railroad company; and it is urged, that the act of 14th April, 1852, though it authorizes the city to make a second subscription of two hundred thousand dollars, does not permit the city to increase its debt to a larger sum than seven hundred thousand dollars, to which it was limited by the first act of 1850. The objection has arisen from a misconception of the 4th section of the act of 1850. It provides that it shall not be lawful for the councils of the city of Allegheny, either directly or indirectly, or by bonds, certificates, or loans, or of indebtedness, or by virtue of any contract, or by any other means or device whatsoever, to increase the indebtedness of the said city, in a sum which, added to the existing debt, shall, taken together, exceed five hundred thousand dollars, exclusive of the subscription of two hundred thousand dollars to the Pennsylvania Railroad Company; meaning, obviously, that no increase of debt should be made by the councils beyond the sum of $500,000, but not intending that the Legislature might not authorize an increase of it beyond that amount, as it had previously done by authorizing the first subscription to the railroad company. The same political power which allowed the first subscription could, at a succeeding session of the Legislature, give authority to the city to make a second. Such authority was given by the act of the 14th April, 1852. The city councils could not under its charter have made either the first or second subscription without authority from the Legislature, but by its charter it could contract debts for the purposes of its incorporation to a larger amount than $500,000. When, then, the Legislature was called upon to authorize the city to make the first subscription, increasing its indebtedness two hundred thousand dollars, beyond what the city might have owed then for other purposes, it was thought prudent, as well for the protection of the citizens of Allegheny as for those who might purchase these certificates of stock with coupons, to declare that the councils of the city should not thereafter, by virtue of their charter authority to contract debts, by any device whatever, increase its amount to more than five hundred thousand dollars. And as it has turned out, judging from the attitude of the mayor, aldermen, and citizens of Allegheny in this suit, it must be admitted to have been upon the part of the Legislature of Pennsylvania a very commendable precautionary act of legislation.

Having thus disposed of the first irregularity imputed to the councils of Allegheny, in making their issue for the payment of the second subscription, we proceed to the second.

It is, that the ordinance of the city directing the issue for the payment of the second subscription had not been recorded within thirty days. It is admitted in the stated case that it had not been.

By the 8th section of the charter of the city of Allegheny, it is provided, that in order that a knowledge of the laws, ordinances, regulations, and constitutions of the city, authorized by the seventh section of the charter, may at all times be had and obtained, and the publications thereof at all times be known and ascertained, such and so many of them as shall not be published in one or more of the public newspapers published in the city, or in such other way as the select and common councils may direct, within fifteen days after these laws severally passed, &c., &c., and also recorded in the office for the recording of deeds, &c., &c., &c., within thirty days after these laws passed, &c., &c., shall be null and void.

Now, it does not require a very careful examination of the section to determine that it can have no bearing upon the ordinance directing the issue for the payment of the second subscription of the city to the Ohio and Pennsylvania Railroad Company, for in terms it is only applicable to ordinances, &c., authorized by the 7th section of the charter, and that did not permit such a subscription to be made, and paid for by the city stock, as the ordinance for that purpose was intended. It could only be made by the authority of the Legislature. In other words, the Legislature enlarged the powers of the councils of Allegheny, to do what it could not do by charter. Besides, if the section was not limited to such ordinances, &c., &c., as are authorized by the 7th section of the charter, and those words were not in it, it could have no application to an ordinance of the city passed for a special purpose to carry out an act of the Legislature, outside of the charter, as was the case here. We have determined that the acts of the Legislature have been carried out by the city in the way they should have been done. Neither the ordinance, nor the stock issued by the city, are deficient in any substantial particular. The latter has every formality of the corporation to give them currency. They were circulated for ten years, and were constantly acknowledged by the city, as its bonds, for the purposes for which they were issued. They are now in the hands of bona fide transferees, to whom they must be paid according to their terms. It would be inequitable, if the city could repudiate them at all, and more especially, if that were allowed to be done upon the ground of any fault in the corporation in their issue. But we will not enlarge further upon the case. The points of objection of which we have treated have already been before this court in several cases, and they are worthy of perusal. See the cases of the Commissioners of Knox County, Indiana, v. Wallace, 21 Howard, 239; 3 Zabriskie v. Cleveland, Columbus, and Cincinnati Railroad Company, 23 Howard, 381.

We have not, in our treatment of this certified division of opinion, discussed that position of the learned counsel who argued it for the defendant, that the acts of the Legislature of Pennsylvania, authorizing the issue of the certificates of loan, were unconstitutional.

Agreeing with him in the main, as to the foundations upon which the correctness of legislation should be tested, and the objects for which it ought to be approved, we cannot, with the respect which we have for the judiciary of his State, discuss the imputed unconstitutionality of the acts upon which the subscriptions were made to the Ohio and Pennsylvania Railroad Company; it having been repeatedly decided by the judges of the courts of Pennsylvania, including its Supreme Court, that acts for the same purposes as those are, which we have been considering, were constitutional.

We shall order it to be certified, that the issue of bonds with coupons, in the case stated, are not null and void, but that it was done under the authority of constitutional acts of the State of Pennsylvania, in the case stated; and further, that they are not null and void for any irregularity connected with that issue by the city of Allegheny.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the western district of Pennsylvania, and on the point or question upon which the judges of the said Circuit Court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court that the issue of bonds with coupons, in the case stated, are not null and void, but that it was done under the authority of constitutional acts of the State of Pennsylvania, in the case stated; and further, that they are not null and void for any irregularity connected with that issue by the city of Allegheny. Whereupon it is now here ordered and adjudged that it be so certified to the said Circuit Court.


text: Talk:Amey v. Allegheny City/Opinion of the Court


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Knox County v. Aspinwall

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

The case is stated in the opinion of the court.

It was argued by Mr. Porter for the plaintiffs in error, and Mr. Vinton upon a brief filed by himself, and also one by Mr. Judah, for the defendants.

The principal point in controversy was the power of the Circuit Court, under the 14th section of the Judiciary act, to issue a writ of mandamus in this case. Upon this subject, a portion of the arguments of the counsel can be given.

Mr. Porter said:

If the Circuit Court of the United States has power to issue a writ of mandamus to enforce the payment of a judgment at law, it derives that power from the provisions of the 14th section of the Judiciary act of 1789.

It is not pretended that there is any other foundation for it.

The words of the section are: 'That all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.'

I maintain that the 'exercise of jurisdiction,' in any sense in which the writ of mandamus could be called in aid of it, was complete in this case upon the rendition of final judgment; that to enforce the payment of that judgment by means of this extraordinary writ would not be 'agreeable to the principles and usages of law.' Passing over the fact which appears in the record, that an execution was issued, and a levy actually made, which the party voluntarily abandoned to resort to his writ of mandamus; and conceding, for the sake of the argument, what the opposing counsel assumes in his brief, that 'no execution can be levied on the general property and effects of the county,' I affirm that this state of facts simply presents the ordinary case of a party holding a debt of record which cannot be realized by process of execution. And I deny that it follows that a writ of mandamus in such a case is, in any just sense, 'necessary for the exercise of jurisdiction,' or 'agreeable to the principles and usages of law.'

The writ of mandamus is the appropriate remedy to enforce the performance of some duty enjoined by law, where there is no other adequate remedy.

The duty imposed by law on the board of commissioners of the county of Knox, now sought to be enforced, was a duty to levy a tax for the payment of interest coupons, not judgments of a court of law.

The holders of those coupons had a right to go into the State courts, and enforce the levying of the tax for their payment, by mandamus; but they elected a different remedy.

They chose to sue in the ordinary form, in the Circuit Court, merged their coupons in a judgment at law, and must rely for the collection of that judgment on the ordinary and usual writs in use for that purpose.

If, upon the failure of these, they may resort to the writ of mandamus to compel the payment of their judgment, on the ground that such a writ is necessary to the exercise of jurisdiction, why may it not be used in every case, to compel the payment of judgments which cannot be collected in the usual way? The words of the statute, then, instead of being understood as words restraining the power to issue the writ in aid and furtherance of ordinary remedies only, will become a grant to the Circuit Courts of the power to employ a new and formidable process in all cases where the common writs of execution fail.

The defendants in error rely on the case of Wayman v. Southard to show that the words 'necessary for the exercise of jurisdiction' apply to proceedings after judgment, as well as before.

The question decided in that case will appear from the certificate at the close of the opinion, which is as follows:

'Certificate.-This cause came on to be heard on the questions certified from the United States court for the seventh circuit and district of Kentucky, and was argued by counsel. On consideration whereof, this court is of opinion that the statutes of Kentucky in relation to executions, which are referred to in the questions certified to this court, on a division of opinion of the said judges of the said Circuit Court, are not applicable to executions which issue on judgments rendered by the courts of the United States; which is directed to be certified to the said Circuit Court.'10 Wheaton, 50.

That part of the opinion of the court which relates to the question now under consideration is as follows:

'The words of the 14th section are understood by the court to comprehend executions. An execution is a writ which is certainly 'agreeable to the principles and usages of law.'

'There is no reason for supposing that the general term 'writs' is restrained, by the words 'which may be necessary for the exercise of their respective jurisdictions,' to original process, or to process anterior to judgments. The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied. Many questions arise on the process subsequent to the judgment, in which jurisdiction is to be exercised. It is, therefore, no unreasonable extension of the words of the act to suppose an execution necessary for the exercise of jurisdiction. Were it even true that jurisdiction could technically be said to terminate with the judgment, an execution would be a writ necessary for the perfection of that which was previously done, and would consequently be necessary to the beneficial exercise of jurisdiction. If any doubt could exist on this subject, the 18th section, which treats of the authority of the court over its executions as actually existing, certainly implies that the power to issue them had been granted in the 14th section. The same implication is afforded by the 24th and 25th sections, both of which proceed on the idea that the power to issue writs of execution was in possession of the courts. So, too, the process act, which was depending at the same time with the Judiciary act, prescribes the forms of executions, but does not give a power to issue them. On the clearest principles of just construction, then, the 14th section of the Judiciary act must be understood as giving to the courts of the Union, respectively, a power to issue executions on their judgments.'

10 Wheaton, 23, 24.

Now, I submit that all this is inapplicable to the case at bar.

The learned counsel for the defendants says, in his brief, after quoting from the opinion of the court in Wayman v. Southard, 'all that is said above about writs of execution must be equally applicable to writs of mandamus, when they are necessary to carry a judgment into effect.'

Granting this, it must appear that in the case at bar a writ of mandamus was necessary to carry the judgment into effect.

That is the touchstone proposed by the counsel for the defendants; and tried by that very test, the case is, in my opinion, against them.

A case might be imagined, doubtless, where a writ of mandamus would be necessary to the 'beneficial exercise of jurisdiction,' and to carry the judgment into effect. Suppose, for instance, that an execution were lodged in the hands of the sheriff, and that he were to neglect or refuse to serve it. In such a case a mandamus might properly be invoked in aid of the jurisdiction, though more summary proceedings would probably be preferred. But in this case no obstruction is put in the way of the ordinary writs, which, 'agreeably to the principles and usages of law,' may issue upon judgments at law. All the remedies which any such judgment ordinarily supplies are open to the parties in this case. But they are said to be inadequate; yet it does not appear that ample property could not be found whereon to levy. The parties then propose to seek another remedy, not a means of carrying into effect the judgment already obtained, but a separate and independent proceeding, in which they must begin de novo, and conduct a new suit through the several stages of pleadings, hearing, and final judgment. The judgment already obtained is not the basis of this new proceeding. The claim on which that judgment was obtained is, it is a proceeding for enforcing the claim by a separate and independent action, not for enforcing the judgment. The object of the proceeding is, to create a fund out of which the claim may be paid. Is there any writ or proceeding in the same case by which a fund may be created for the payment of a judgment at law, 'agreeably to the principles and usages of law?'

The proceedings in mandamus constitute a separate suit in general. So say the authorities. 6th Bac. Ab., 453.

Mr. Vinton said:

The Judiciary act of 1789, after having conferred on the several courts of the United States their respective jurisdictions over the matters subjected to their cognizance, and upon which they may pronounce judgments, proceeds in the 14th section to provide for the exercise of those jurisdictions-that is to say, for carrying them into execution, in the language of the above-recited clause of the Constitution, and, as I have already said, into full and complete execution. For that purpose it enacts 'that all the before-mentioned courts of the United States, (the Circuit Court being one of them,) shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law.' 1 Statutes at Large, 81.

Under this section, the power of the Circuit Courts and of all other courts of the United States is limited to the issue of writs for the sole purpose or object of exercising their jurisdictions; but for the accomplishment of that object and purpose, the power is given to issue 'all writs,' whether of mandamus or any other writs not specially provided for by statute, which may be necessary, and are agreeable to the principles and usages of law. For the accomplishment of that purpose no language could be more comprehensive.

A construction was given to this 14th section in respect to the extent of the power conferred by it on the Circuit Courts to issue writs in the above-mentioned case of Wayman v. Southard, 6 Pet. Cond. Rep., 4.

In that case, it was insisted by one of the parties, that the power conferred by that section was limited to process anterior to the rendition of the judgment, and that when judgment was rendered the jurisdiction of the court was exercised and exhausted; and that, consequently, the Circuit Courts could not, by virtue of that section, issue executions on their judgments.

The court, after reciting the words of the 14th section, answer this objection by saying, 'the words of the fourteenth section are understood by the court to comprehend executions. An execution is a writ which is certainly agreeable to the principles and usages of law. There is no reason for supposing that the general term, 'writs,' is restrained, by the words 'which may be necessary for the exercise of their respective jurisdictions,' to original process, or to process anterior to judgments. The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied. Many questions arise on the process subsequent to the judgment, in which jurisdiction is to be exercised. It is, therefore, no unreasonable extension of the words of the act to suppose an execution necessary for the exercise of jurisdiction.' 6 Pet. Cond. Rep., 4, 5.

All that is said above about writs of execution must be equally applicable to writs of mandamus, when they are necessary to carry a judgment into effect.

This decision establishes two propositions, which have an important bearing on the case now before the court.

1st. That the jurisdiction of the Circuit Court over a case continues until its judgment is satisfied.

2d. That it has power to issue such writs, both before and after judgment, as may be necessary for the exercise of its jurisdiction, and are agreeable to the principles and usages of law.

From these propositions, it would seem to follow, as a necessary corollary, that if in any case the writ of mandamus was necessary for the satisfaction of the judgment, and the case itself was one where, by the principles and usages of law, the writ would issue, then the 14th section confers on the court power to issue it for that special purpose.

The question of the extent of power given to the Circuit Courts by this 14th section, to issue writs of mandamus, first came up for decision in this court, in the case of McIntire v. Wood, 2 Pet. Cond. Rep., 588.

Mr. Vinton then proceeded to comment on several subsequent decisions of this court.

Mr. Justice GRIER delivered the opinion of the court.

title: Knox County v. Aspinwall


text: Talk:Knox County v. Aspinwall

title: Talk:Knox County v. Aspinwall


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Knox County v. Aspinwall/Opinion of the Court

The plaintiffs in error were defendants in a suit by Aspinwall and others, in which a judgment was recovered for interest coupons on bonds issued by the corporation. The cause was removed to this court, and may be found reported in 21 Howard, 539. The judgment of the Circuit Court was affirmed, and the record remitted.

In order to enforce the execution of this judgment, the plaintiffs moved for a mandamus to the commissioners, to compel them to levy a tax to satisfy the judgment. The record shows that the board of commissioners appeared in the Circuit Court and resisted the motion, on several grounds, but chiefly that the court had no jurisdiction to issue a mandamus in this case.

The act of Assembly of Indiana, which authorized the issue of the bonds and coupons which were the subject of the litigation, may be found in the former report of the case. (21 How., 542.)

It appears that by the 3d section of this act it is made the duty of the commissioners, for the purpose of paying the interest due on the bonds, 'at the levying of the county taxes for each year, to assess a special tax, sufficient to realize the amount of the interest to be paid for the year.'

This the commissioners had not done, and refused to do so, on notice and request of the defendants in error.

Now, it is not alleged nor pretended but that, if this judgment had been obtained against the corporation in a State court, the remedy now sought could have been obtained; for it must be admitted, that, according to the well-established principles and usage of the common law, the writ of mandamus is a remedy to compel any person, corporation, public functionary, or tribunal, to perform some duty required by law, where the party seeking relief has no other legal remedy, and the duty sought to be enforced is clear and indisputable. That this case comes completely within the category is too clear for argument; for, even assuming that a general law of Indiana permits the public property of the county to be levied on and sold for the ordinary indebtedness of the county, it is clear that the bonds and coupons issued under the special provisions of this act were not left to this uncertain and insufficient remedy. The act provides a special fund for the payment of these obligations, on the faith and credit of which they were negotiated. It is especially incorporated into the contract, that this corporation shall assess a tax for the special purpose of paying the interest on these coupons. If the commissioners either neglect or refuse to perform this plain duty, imposed on them by law, the only remedy which the injured party can have for such refusal or neglect is the writ of mandamus.

Why should not the Circuit Court of the United States be competent to give to suitors this only adequate remedy?

By the common law, the writ of mandamus is granted by the King's Bench, in virtue of its prerogative and supervisory power over inferior courts. The courts of the United States cannot issue this writ by virtue of any supervisory power at common law over inferior State tribunals. They can derive it only from the Constitution and laws of the United States.

The jurisdiction of these courts is, by the Constitution, extended to 'controversies between citizens of different States.' Congress has authority to make all laws which shall be necessary and proper for carrying this jurisdiction into effect. The jurisdiction of the court to give the judgment in this case is not disputed; nor can it be denied, that by the Constitution, Congress has the power to make laws necessary for carrying into execution all its judgments. (See Wayman v. Southard, 10 Wheaton, 22.) Has it done so?

By the 14th section of the Judiciary act of 1789, it is enacted 'that courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles of the common law.'

Now, the 'jurisdiction' is not disputed, and it is necessary to an efficient exercise of this jurisdiction that the court have authority to compel the exercise of a ministerial duty by the corporation, which by law they are bound to perform, and by the performance of which alone the plaintiff's remedy can be effected. The fund to pay this judgment, by the face of the contract, is a special tax laid and to be collected by defendants. They refuse to perform a plain duty. There is no other writ which can afford the party a remedy, which the court is bound to afford, if within its constitutional powers, except that afforded by this writ of mandamus.

It is 'agreeable to the principles of the common law,' and, consequently, within the category as defined by the statute.

A court of equity is sometimes resorted to as ancillary to a court of law in obtaining satisfaction of its judgments. But no court, having proper jurisdiction and process to compel the satisfaction of its own judgments, can be justified in turning its suitors over to another tribunal to obtain justice. It is no objection, therefore, to the use of this remedy, that the party might possibly obtain another by commencing a new litigation in another tribunal.

We are of opinion, therefore, that the Circuit Court had authority to issue the writ of mandamus in this case.

It is no reason for setting it aside, that a previous alternative writ had not issued. The notices served on the commissioners gave them every opportunity of defence that could have been obtained by an alternative mandamus. There was no dispute about facts which could affect the decision. The court gave them an opportunity to comply with the demand of the plaintiffs; their excuse for not doing so was, palpably, 'a mere colorable adjournment or procrastination of the performances of the act, for the purpose of delay.' It is equivalent to a refusal. Having refused to perform the duty which the law imposed upon them on the proper day, without even the pretence of a reason for such conduct, the peremptory mandamus was very properly awarded, commanding the duty to be performed 'forthwith.'

The judgment of the Circuit Court is, therefore, affirmed with costs.


text: Talk:Knox County v. Aspinwall/Opinion of the Court


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Bulkley v. Naumkeag Steam Cotton Company

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

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

It was submitted on printed arguments by Mr. Loring for the appellant, and Mr. Andros for the appellee.

The principal question involved was thus stated by Mr. Loring in the opening of his argument:

One of the questions presented, the only one decided in the courts below, is whether or not a vessel may be liable, in a suit in rem, for the loss of or damage done to merchandise never received on board.

It was held that the mere reception of goods by the master or owners, for the purpose of being carried in a particular vessel, did create a liability on the part of the vessel for any subsequent loss or damage, though the goods were never placed on board, and the loss was not caused by the insufficiency of the vessel, or any fault of its owners, master, or crew.

The claimant, conceiving that this decision is contrary to the principles of the maritime law and without precedent, and that the question is of importance, presents it for the consideration of this tribunal, and respectfully asks its attention to the suggestions to be presented in his behalf.

It is impossible for the reporter to do full justice to the arguments of the counsel on both sides, because they included so many branches of inquiry, with references to authorities. All that he can do is to give merely the points raised on both sides.

Mr. Loring's points were the following:

1. The libellants cannot hold either the vessel or the owners under the bills of lading, because the goods in question were not on board; and having insisted upon the master's signing such bills, are prevented thereby from resorting to the original contract of shipment.

2. The owners of the vessel were not common carriers.

3. The vessel is not liable in rem.

So far it has not been considered whether or not the libellants have a lien or privilege upon the vessel for the loss they have suffered.

The inquiry has been as to the personal liability of the owners. If the court shall be of opinion that the owners are not liable on the bill of lading, because the goods were not on board; or on the original parol contract, because that was superseded by the written contract in the bill of lading, which the libellants elected to take; or, if bound by such contract, that the owners were private and not common carriers, and there is no proof of want of ordinary care-then it is unnecessary to inquire as to the liability of the vessel, it being well settled, that except in cases of bottomry and salvage, there can be no claim against the thing unless there is a personal liability on the part of its owners.

In the case of the Druid, 1 W. Rob., 399, Dr. Lushington says: 'No suit could ever be maintained against a ship where the owners were not themselves personally liable, or where the personal liability had not been given up, as in bottomry bonds.' And the rule as stated by him, to this extent, is expressly recognised and affirmed by this court in the case of the Freeman, 18 Howard, 189.

If on any ground the court should be of opinion that the owners could not be held personally liable for the loss suffered by the libellants, it necessarily follows that the vessel is not liable, and that this suit cannot be maintained. It is absolutely essential that such personal liability must exist in order to create a charge in rem.

If, however, the court should be satisfied that a personal liability does exist on the part of the owners, it does not follow as of course that the vessel is liable.

The libellants must go further, and show that the policy of the maritime law secures their claim and gives it a preference over others, by creating a privilege against the vessel. The common law gives no such preference.

There is not even a presumption that the vessel is liable because the owners are. The liabilities depend upon different grounds, and are not at all reciprocal. In this court, of late years, the tendency has been very strong to limit maritime privileges, and to deny their existence in cases where they had before been recognised. In the case of the Yankee Blade, 19 Howard, 82, they are said to be stricti juris, and not to be encouraged. In Thomas v. Osborn, 19 Howard, 22, and Reed v. Pratt, 19 Howard, 359, the liens of material men are confined to cases of necessity. A recent rule of the court prohibits the enforcement of domestic liens by the District Courts. The privilege of the ship-owner upon goods for freight is apt to be treated as a mere common-law lien, depending upon possession; and in People's Ferry Co. v. Beers, 20 How., 401,) it is said that 'liens on vessels encumber commerce, and are discouraged.'

As in all of these cases there would exist a personal liability on the part of the owners, it is very plain that that does not necessarily establish a privilege against the ship.

Mr. Andros's propositions were the following:

1. That between the libellant and the master of the vessel against which a lien is so sought to be enforced in the present case there was a valid contract of affreightment, which is binding upon the claimant and owners thereof.

2. That the owners of said vessel are liable as common carriers, and that such liability commenced immediately the master received the libellant's merchandise for transportation.

3. That the owners being liable in damages for the non-delivery of the libellant's merchandise, which had been by his agents delivered to and received by the master of the said vessel for transportation, the ship in specie is also liable, and that this liability arises from the contract of affreightment, which has been executed on the part of the libellant.

4. That the reception and lading of the libellant's merchandise on board of the lighter by the master of the vessel, for the purpose of transporting it to the same, was a sufficient performance of the libellant's part of the contract of affreightment to enable him to hold the ship in specie as security for the due performance of the master's part of the agreement.

Mr. Justice NELSON delivered the opinion of the court.


text: Talk:Bulkley v. Naumkeag Steam Cotton Company


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Bulkley v. Naumkeag Steam Cotton Company/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States, sitting in admiralty, for the district of Massachusetts.

The libel in the court below was against the barque Edwin, to recover damages for the non-delivery of a portion of a shipment of cotton from the port of Mobile to Boston. The facts upon which the question in this case depends are found in the record as agreed upon by the proctors, both in the District and Circuit Courts, and upon which both courts decreed for the libellant.

From this agreed state of facts, it appears that the master of the vessel, which was then lying at the port of Mobile, agreed to carry for the libellant 707 bales of cotton from that port to Boston, for certain freight mentioned in the bills of lading.

The condition of the bay of Mobile, which is somewhat peculiar, becomes material to a proper understanding of the question in this case.

Vessels of a large size, and drawing over a given depth of water, cannot pass the bar in the bay, which is situate a considerable distance below the city. Their cargo is brought to them in lighters, from the city over the bar, and then laden on board the vessels. Vessels which, from their light draft, can pass the bar in ballast, go up to the city and take on board as much of their cargoes as is practicable, and, at the same time, allow them to repass it on their return, and are then towed below the bar, and the residue of their laod is brought down by lighters and put on board.

In either case, when the vessel is ready to receive cargo below the bar, the master gives notice of the fact to the consignor or broker, through whom the freight is engaged, and provides, at the expense of the ship, a lighter for the conveyance of the goods. The lighterman applies to the consignor or broker, and takes an order for the cargo to be delivered, receives it, and gives his own receipt for the same. On delivering the cargo on board the vessel below the bar, he takes a receipt from the mate or proper officer in charge.

The usual bills of lading are subsequently signed by the master and delivered.

In the present case, the barque Edwin received the principal part of her cargo at the city, and was then towed down below the bar to receive the residue. The master employed the steamer M. Streck for this purpose, and 100 bales were laden on board of her at the city to be taken down to complete her load, and for which the master of the leghter gave a receipt; after she had passed the bar and had arrived at the side of the barque, but before any part of the 100 bales was taken out, her boiler exploded, in consequence of which the 100 bales were thrown into the water and the lighter sunk. Fourteen of the bales were picked up by the crew of the vessel, and brought to Boston with the 607 bales on board. Eighty bales were also picked up by other persons, wet and damaged, and were surveyed and sold; four remain in the hands of the ship broker, at Mobile, for account of whom it may concern; two were lost.

The master of the barque signed bills of lading, including the 100 bales, being advised that he was bound to do so, and that if he refused, his vessel would be arrested and detained. On her arrival at Boston, the master delivered the 607 bales to the consignees, and tendered the fourteen, which were refused.

A question has been made on the argument, whether or not the libellant could recover upon the undertaking in the bills of lading, they having been signed under the circumstances stated, or must resort to the original contract of affreightment between the master and the shipper. The articles in the libel place the right to damages upon both grounds. The view the court has taken of the case supersedes the necessity of noticing this distinction.

The court is of opinion that the vessel was bound for the safe shipment of the whole of the 707 bales of cotton, the quantity contracted to be carried, from the time of their delivery by the shipper at the city of Mobile, and acceptance by the master, and that the delivery of the hundred bales to the lighterman was a delivery to the master, and the transportation by the lighter to the vessel the commencement of the voyage in execution of the contract, the same, in judgment of law, as if the hundred bales had been placed on board of the vessel at the city, instead of the lighter. The lighter was simply a substitute for the barque for this portion of the service. The contract of affreightment of the cotton was a contract for its transportation from the city of Mobile to Boston, covering a voyage between these termini, and when delivered by the shipper, and accepted by the master at the place of shipment, the rights and obligations of both parties became fixed-the one entitled to all the privileges secured to the owner of cargo for its safe transportation and delivery; the other, the right to his freight on the completion of the voyage, as recognised by principles and usages of the maritime law.

The true meaning of the contract before us cannot be mistaken, and is in perfect harmony with the acts of the master in furtherance of its execution.

Both parties understood that the cotton was to be delivered to the carrier for shipment at the wharf in the city, and to be transported thence to the port of discharge. After the delivery and acceptance at the place of shipment, the shipper had no longer any control over the property, except as subject to the stipulated freight.

The contract as thus explained being made by the master in the course of the usual employment of the vessel, and in respect to which he is the general agent of the owner, it would seem to follow, upon the settled principles of admiralty law, which binds the vessel to the cargo, and the cargo to the vessel, for the performance of the undertaking, that the ship in the present case is liable for the loss of the hundred bales, the same as any other portion of the cargo.

It is insisted, however, that the vessel is exempt from responsibility upon the ground that the one hundred bales were never laden on board of her, and we are referred to several cases in this court and in England in support of the position. (18 How., 189; 19 Ib., 90; and 2 Eng. L. and Eq. R., 337; Grant and others v. Norway and others. 18 Eng. C. L. and Eq., 561; 29 Ib., 323.) But it will be seen, on reference to these cases, the doctrine was applied, or asserted, upon a state of facts wholly different from those in the present case. In the cases where the point was ruled, the goods were not only not laden on board the vessel, but they never had been delivered to the master. There was no contract of affreightment binding between the parties, as there had been no fulfilment on the part of the shipper, namely, the delivery of the cargo.

It was conceded no suit could have been maintained upon the original contract, either against the owner or the vessel; but as the bill of lading had been signed by the master, in which he admitted that the goods were on board, the question presented was, whether or not the admission was not conclusive against the owner and the vessel, the bill of lading having passed into the hands of a bona fide holder for value.

The court, on looking into the nature and character of the authority of the master, and the limitations annexed to it by the usages and principles of law, and the general practice of shipmasters, held, that the master not only had no general authority to sign the bill of lading, and admit the goods on board when contrary to the fact, but that a third party taking the bill was chargeable with notice of the limitation, and took it subject to any infirmity in the contract growing out of it.

The first time the question arose in England, and was determined, was in the case of Grant and others v. Norway and others, in the Common Pleas, (1851,) and was in reference to the state of facts existing in this and like cases, and in connection with the principles involved in its determination, that the court say the master had no authority to sign the bill of lading, unless the goods had been shipped; cases in which there had been no delivery of the goods to the master, no contract binding upon the owner or the ship, no freight to be carried, and, in truth, where the whole transaction rested upon similated bills of lading, signed by the master in fraud of his owners.

In the present case the cargo was delivered in pursuance of the contract, the goods in the custody of the master, and subject to his lien for freight, as effectually as if they had been upon the deck of the ship, the contract confessedly binding both the owner and the shipper; and, unless it be held that the latter is entitled to his lien upon the vessel also, he is deprived of one of the privileges of the contract, when, at the same time, the owner is in the full enjoyment of all those belonging to his side of it.

The argument urged against this lien of the shipper seems to go the length of maintaining, that in order to uphold it there must be a physical connection between the cargo and the vessel, and that the form of expression in the cases referred to is not to be taken in the connection and with reference to the facts of the particular case, but in a general sense, and as applicable to every case involving the liability of the ship for the safe transportation and delivery of the cargo. But this is obviously too narrow and limited a view of the liability of the vessel. There is no necessary physical connection between the cargo and the ship, as a foundation upon which to rest this liability. The unlading of the vessel at the port of discharge, upon the wharf, or even the deposit of the goods in the warehouse, does not discharge the lien, unless the delivery is to the consignee of the cargo, within the meaning of the bill of lading; and we do not see why the lien may not attach, when the cargo is delivered to the master for shipment before it reaches the hold of the vessel, as consistently and with as much reason as the continuance of it after separation from the vessel, and placed upon the wharf, or within the warehouse. In both instances the cargo is in the custody of the master, and in the act of conveyance in the execution of the contract of affreightment. We must look to the substance and good sense of the transaction; to the contract, as understood and intended by the parties, and as explained by its terms, and the attending circumstances out of which it arose, and to the grounds and reasons of the rules of law upon the application of which their duties and obligations are to be ascertained, in order to determine the scope and extent of them; and, in this view, we think no well-founded distinction can be made, as to the liability of the owner and vessel, between the case of the delivery of the goods into the hands of the master at the wharf, for transportation on board of a particular ship, in pursuance of the contract of affreightment, and the case as made, after the lading of the goods upon the deck of the vessel; the one a constructive, the other an actual possession; the former, the same as if the goods had been carried to the vessel by her boats, instead of the vessel going herself to the wharf.

The decree of the could below affirmed.


text: Talk:Bulkley v. Naumkeag Steam Cotton Company/Opinion of the Court


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Clements v. Warner

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

The case is stated in the opinion of the court.

It was submitted on printed arguments by Mr. Ives for the appellant, and Mr. R. E. Williams for the appellee.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Clements v. Warner


text: Talk:Clements v. Warner

title: Talk:Clements v. Warner


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Clements v. Warner/Opinion of the Court

The appellee filed this bill in chancery in the Circuit Court to quiet his title to a portion of section thirty-three, in township seventeen north, of range eight east, of the third principal meridian, in the county of Champaigne, Illinois. By the act of Congress of the 20th September, 1850, for granting the right of way and making a grant of land to the States of Illinois, Mississippi, and Alabama, in aid of the construction of a railroad from Chicago to Mobile, (9 Statutes at Large, 466,) there was granted to the State of Illinois, for the purpose of making the railroad described in the title of the act, every alternate section of land designated by even numbers, for six sections in width on each side of the road; and in case any of these sections had been sold, or were subject to a pre-emption claim, then the State was authorized to select from the lands of the United States, contiguous to the tier of sections before mentioned, so much land in sections and parts of sections as should make up the full complement of land included in the concessions in the act. The act further provided, that the sections and parts of sections of lands which, by the grant, might remain to the United States within six miles on each side of the road, should not be sold for less than double the minimum price of the public lands, when sold. To comply with the requirements of this act, the Commissioner of the General Land Office withdrew from entry, or sale the land on either side of the track of the road, until the State of Illinois could make the selections that were authorized by it. These were completed in 1852, and during that year the President of the United States by a proclamation directed the sale of those sections and parts of sections along the line of the road that had remained to the United States, after the satisfaction of the grant to Illinois. Such of the sections as were not sold became subject to private entry. The section of land described in the plaintiff's bill, a portion of which forms the subject of this suit, was one of these, and was purchased at private sale at the land office, in November, 1855, by a person under whom the plaintiff derives his claim, and who has the usual receipt given by the receiver of the land office.

The conflicting claim against which the appellee seeks relief originates in an entry by the appellant in November, 1856, as having a pre-emption right under a settlement began in October, 1855, before the date of the entry on which the title of the appellee is founded. A patent issued to the appellant as having the superior claim. The object of the bill is to reverse the decision of the officers of the land office, and to obtain a relinquishment of the legal title evinced by this patent, and the only question presented is, whether the land was the subject of a pre-emption right in November, 1855.

The 10th section of the act of the 4th September, 1841, confers upon the beneficiaries of that act, 'who shall make a settlement in person on the public lands to which the Indian title has been extinguished, and which shall have been surveyed prior thereto, and who shall improve and inhabit the same, as specified in the act, a right of pre-emption to one quarter section of land.' Among the exceptions in the act to the exercise of this right of pre-emption, is one that includes 'sections of lands reserved to the United States, alternate to other sections granted to any of the States for the construction of any canal, railroad, or other public improvement.' 5 Statutes at Large, 466.

Subsequent acts of Congress extend the pre-emption privilege to lands not surveyed at the time of the settlement, and confer privileges upon settlers on school lands, and on lands reserved for private claims. 5 Statutes at Large, 620, sections 3, 9.

In 1853, the pre-emption laws, as they now exist, were extended to the reserved sections of public lands along the lines of all the railroads, wherever public lands have been granted by acts of Congress, in cases where the settlement and improvements had been made prior to the final allotment of the alternate sections to such railroads by the General Land Office. 10 Statutes at Large, 244.

In the administration of these laws, the Executive Department of the Government has decided, that after the restoration to market of the lands embraced in the exception we have quoted from the act of 1841, and when they have become subject to entry at private sale, they lose their character as reserved lands, and will then be subject to the privileges of pre-emption in favor of settlers. The policy of the Federal Government in favor of settlers upon public lands has been liberal. It recognises their superior equity to become the purchasers of a limited extent of land, comprehending their improvements, over that of any other person.

By the act of 1841, the pre-emption privilege in favor of actual settlers was extended over all the public lands of the United States that were fitted for agricultural purposes and prepared for market. Later statutes enlarged the privilege, so as to embrace lands not subject to sale or entry, and clearly evince that the actual settler is the most favored of the entire class of purchasers. No act of Congress has defined the meaning of the term reserve, as applied to lands in these various acts, nor determined explicitly when these alternate sections lose their character as reserves. But all other public lands fitted for agricultural purposes, after they have been offered at public sale, are affected by the privilege of the actual settler to have the preference of entry. No reason of public policy exists to exclude this class of public lands from the operation of the same law, under the same conditions. No violence is done to the language of the act by limiting the exception to the temporary withdrawal of the lands from the market, and the liberal policy of Congress in favor of the actual settler is better accomplished by a restrictive rather than extensive interpretation of the exceptional clause in the act. We therefore sanction the construction adopted in the land office.

The Circuit Court overruled the demurrer of the defendant to the bill, and made a decree in conformity to the prayer of the bill. This is error. The decree of the Circuit Court is reversed, and the cause is remanded to the Circuit Court, with directions to dismiss the bill, with costs.

title: Clements v. Warner/Opinion of the Court


text: Talk:Clements v. Warner/Opinion of the Court


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Lessee of Smith v. McCann

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

The facts are stated in the opinion of the court.

It was argued by Mr. Davis and Mr. F. L. Smith for the plaintiffs in error, and Mr. Campbell and Mr. Malcolm for the defendants.

The points on behalf of the plaintiffs in error were the following. The counsel contended that the instruction given by the court below was erroneous, and cited these authorities:

McMechen v. Marman, 8 G. and J., 57, 73, 74, 75.

Jackson v. Graham, 3 Caines's R., 188.

Jackson v. Scott, 18 Johnson's R., 94.

Jackson ex dem. Cary v. Parker, 9 Cowen R., 85.

Jackson ex dem. Ten Eyck v. Walker, 4 Wendell, 462.

Culbertson v. Martin, 2 Yeates, 443.

Remington v. Linthicum, 14 Peters, 84.

Young v. Alger, 3 Watts, 223, 227.

Jackson v. Bush, 10 John., 223.

In ejectment against a defendant in an execution, or those claiming under him, the purchaser of land at a sheriff's sale, having complied with the terms of sale, is entitled, as plaintiff, to recover the possession against said defendant or his alience, and the defendant will not be permitted to controvert the title by showing it to be defective, or by setting up a better outstanding title in a third person.

Remington v. Linthicum.

McMechen v. Marman.

Lessee of Cooper v. Galbraith, 3 Wash. Cir. Ct. R., 546, 550.

Jackson v. Chase, 2 John. C. L. R. 82.

Jackson v. Pierce, Id., 221.

Jackson v. Deye, 3 John. C. L. R., 422.

Bayard v. Colfax et al., Cox's Digest S.C.. U.S., 272, sec. 41.

Jackson v. Davis, 18 John. C. L. R., 7.

Jackson v. Van Slyck, 8 John. C. L. R., 486.

The trusts in the deed from Brown and wife to Richard D. Fenby being fraudulent and void, the deed passed an absolute title to Fenby of the land in controversy.

Bacon's Abr., vol. 2, Bouvier's Ed., 298, 305.

Hughes v. Edwards, 9 Wheat., 493.

That the terms of trust, in the deed from Brown and wife to Fenby, not being established by any evidence, aliunde, the said trust can be considered as existing, if at all, only from the date of the deed.

Hill on Trustees, top pp. 86, 87, note 2.

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

1. This action of ejectment being brought in Maryland, and the common law in that State being unchanged, the plaintiff must show, in evidence, a legal title to enable him to recover. The Maryland statute, (1810, ch. 160,) which authorizes a sale on execution at law, of equitable estates, does not chage an equitable into a legal title, and the purchaser must assert his rights in their appropriate form.

Carroll v. Norwood, 5 H. and J., 155.

Wilson v. Inloes, 11 Gill and Johnson, 351.

Hammond v. Inloes, 4 Maryland, 138.

2. To show themselves seized of a legal title, the plaintiffs in error give in evidence the deed from Brown and wife to Fenby, conveying the property which was levied on under the judgment against Fenby, and sold to the plaintiff's lessor. This deed, (Rec. 25,) which conveyed the legal title to Fenby, conveyed it to him in trust for his wife and children, and gave him but a dry legal title, with no beneficial interest in himself, and so vested nothing in him which could be attached or taken in execution upon process against him.

Houston v. Newland, 7 Gill and Johnson, 493.

Aware of this insuperable difficulty, the plaintiffs in error seek, by a charge of fraud against the deed, to extinguish the trust, and thus convert the legal ownership of Fenby into a beneficial one. But if the deed be void against creditors, by reason of the trust for Fenby's wife and children, the statute of Elizabeth avoids it in toto, and the plaintiffs in error cannot, at the same time, set it up and destroy it. If the deed be wholly void, for fraud or any other cause, then the foundation of the plaintiff's title fails, for without it Fenby had no estate. If it be relied on as the source of Fenby's title, it must be taken as it is.

Mackie v. Cairns, Hopkins, 405.

5 Cowen, 580.

5 Shepley, 369.

4 Yerger, 164.

2 Sanford C. Rep., 630, Goodhue v. Berry.

6 Gill and Johnson, 231, State v. Bank of Maryland.

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

title: Lessee of Smith v. McCann


text: Talk:Lessee of Smith v. McCann

title: Talk:Lessee of Smith v. McCann