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Wills v. Russell/Opinion of the Court

Five dollars per ton import duties were, by the act of the 14th of July, 1862, levied on jute, Sisal grass, sun hemp, coir, and other vegetable substances not enumerated, except flax, tow of flax, Russia and Manila hemp, and codilla or tow of hemp. 12 Stat. 554.

By the prior act, jute, Sisal grass, sun hemp, coir, and other vegetable substances, if not enumerated and used for cordage, were subject to a specific duty of ten dollars per ton. Jute butts paid five dollars per ton, and codilla or tow of hemp paid the same duty as non-enumerated vegetable substances used for cordage. Pages of the volume are filled with the enumerated list; but the twenty fourth section provides that all articles, raw and unmanufactured, not therein enumerated or otherwise taxed, shall pay a duty of ten per cent ad valorem. Id. 188, 196.

Products called jute rejections, to the amount of one hundred and twenty-five bales, were imported by the plaintiffs from Calcutta. Due entry of the importation for consumption was made by the importers, and the collector assessed an import duty on the goods of ten per cent ad valorem and a specific duty of five dollars per ton. Id. 196, 554.

Pursuant to the requirement of law in such cases, the plaintiffs filed a written protest, objecting to the levy of the specific duty, in which they claimed that the products imported should be classed as non-enumerated articles, raw and unmanufactured, and be subject to a duty of ten per cent ad valorem and no more; or, if regarded as partially manufactured, that the importation should be subjected to a duty of twenty per cent ad valorem, and no more.

Payment of the amount exacted was made by the plaintiffs to obtain possession of the goods, and redress being refused, the plaintiffs instituted the present suit to recover back the amount and lawful interest. Service was made; and, the defendant having appeared, the parties went to trial, and verdict and judgment were in favor of the defendant, and the plaintiffs excepted and sued out the present writ of error.

Six errors are assigned here, as follows: 1. That the court erred in permitting a witness for the plaintiffs to be cross-examined on a matter not within his testimony-in-chief. 2. That the court erred in refusing to permit the plaintiffs to introduce evidence to prove that jute rejections were not and could not be used for cordage, and that jute and the other vegetable substances mentioned in the act of Congress were used for that purpose. 3. That the court erred in permitting the defendant to introduce evidence to prove that jute rejections were one of the vegetable substances referred to in the act of Congress. 4. That the court erred in refusing each of the four prayers for instruction presented by the plaintiffs. 5. That the court erred in instructing the jury that it was for them to determine whether or not jute rejections were of a class of non-enumerated vegetable substances similar to the articles enumerated in the eleventh section of the act, under which the importation was made. 6. That the court erred in not defining in what the required similarity would consist to bring the importation in question within the act of Congress.

Testimony was introduced by the plaintiffs to prove that they paid the duties, and they read the protest in evidence to show that they had complied with that condition precedent to a right to recover back the amount paid. Witnesses were called by them to prove payment and protest; and one of them having testified to the payment of the duties, and to the fact of protest and appeal, the defendant claimed the right to cross-examine him as to whether jute rejections were a vegetable substance similar to the articles enumerated in the second clause of the eleventh section of the Tariff Act, under which the duties were exacted. Objection was made by the plaintiffs; but the court overruled the objection and admitted the evidence. Exception was taken by the plaintiffs to the ruling of the court, and that exception constitutes the basis of the first assignment of error.

Authorities of the highest character show that the established rule of practice in the Federal courts and in most other jurisdictions in this country is that a party has no right to cross-examine a witness, without leave of the court, as to any facts and circumstances not connected with matters stated in his direct examination, subject to two necessary exceptions. He may ask questions to show bias or prejudice in the witness, or to lay the foundation to admit evidence of prior contradictory statements. Subject to those exceptions, the general rule is that if the party wishes to examine the witness as to other matters, he must in general do so by making him his own witness and calling him as such in the subsequent progress of the cause. The Philadelphia & Trenton Railroad Co. v. Stimpson, 14 Pet. 448, 459; Houghton v. Jones, 1 Wall. 702, 706; 1 Greenl. Evid., sect. 445-447; 1 Whart. Evid., sect. 529.

It has been twice so ruled by this court, and is undoubtedly a valuable rule of practice, and one well calculated to promote regularity and logical order in jury trials; but it is equally well settled by the same authorities that the mode of conducting trials, and the order of introducing evidence, and the time when it is to be introduced, are matters properly belonging very largely to the practice of the court where the matters of fact are tried by a jury. Both of the cases referred to by the plaintiffs show that the judgment will not be reversed merely because it appears that the rule limiting the cross-examination to the matters opened by the examination-in-chief was applied and enforced; but those cases do not decide the converse of the proposition, nor is attention called to any case where it is held that the judgment will be reversed because the court trying the issue of fact relaxed the rule and allowed the cross-examination to extend to other matters pertinent to the issue.

Cases not infrequently arise where the convenience of the witness or of the court or the party producing the witness will be promoted by a relaxation of the rule, to enable the witness to be discharged from further attendance; and if the court in such a case should refuse to enforce the rule, it clearly would not be a ground of error, unless it appeared that it worked serious injury to the opposite party. Nothing of the kind is shown or pretended in this case. Instead of that, it is conceded that the ruling of the court did not work any injury to the plaintiffs, and in that view the first assignment of error is overruled. Jackson v. Litch, 63 Pa. St. 451, 455.

Enough appears to show that the importation in this case was made under the tariff act temporarily increasing the duties on imports, which imposes a duty of five dollars per ton in addition to the duties theretofore imposed on the articles therein enumerated, and other vegetable substances not enumerated, except flax, two of flax, hemp of two descriptions, and codilla or tow of hemp. Products such as those imported, called jute rejections, it is admitted, are vegetable products, and that the article or product is not enumerated in that tariff act; but it is contended by the plaintiffs that the words 'used for cordage,' found in the fifteenth section of the former act, must be implied, to come in after the word 'enumerated,' as used in the said section of the antecedent act. Grant that, and it would follow that the plaintiffs must prevail, as the evidence shows that jute rejections are not used for cordage.

Hemp, under the prior act, unmanufactured, paid a duty of thirty-five dollars per ton, and Manila and other hemps of India paid a duty of fifteen dollars per ton. Jute, Sisal grass, sun hemp, and coir were enumerated articles in that tariff act, and they, with other vegetable substances not enumerated, if used for cordage, paid a duty of ten dollars per ton, and codilla or tow of hemp paid a duty of the same amount.

None of these suggestions are controverted, nor can it be controverted that jute, Sisal grass, sun hemp, coir, and other vegetable substances are required in terms by the new act increasing the duties on imports to pay five dollars per ton in addition to the duties previously imposed by law. All that is conceded; still the plaintiffs contend that the words 'used for cordage,' found in the prior act, should, by implication, be incorporated, as before explained, into the subsequent act increasing import duties; but the court is not able to adopt that construction of the new provision, for several reasons: 1. Because there is nothing in either act, or in the two when read together, to justify such a construction, or even to indicate that such was the intention of Congress. 2. Because nothing short of legislation would justify such a conclusion. 3. Because the exceptions contained in the new provision afford satisfactory proof that such was not the intention of Congress.

Attempt is made to support the theory of the plaintiffs by the fact that the words 'used for cordage' are restored in the Revised Statutes; but the court is of the opinion that no aid can be drawn from that provision in favor of the views of the plaintiffs, as it imposes a duty of fifteen dollars per ton on the articles named, including other vegetable substances not enumerated. Sect. 2504, sched. C, entitled Hemp, Jute, and Flax Goods.

Evidently the provision in the Revised Statutes referred to was borrowed from a later act, and cannot in any sense be regarded as a legislative construction of the clause in the tariff act under consideration. 16 Stat. 264.

Three of the prayers for instruction presented by the plaintiffs are covered by the preceding suggestions, and nothing need be added to show that they were properly rejected. Their fourth prayer was also rejected; but the court instructed the jury in its stead that it was for them to find whether or not jute rejections were of a class of non-enumerated vegetable substances similar to the enumerated articles in sect. 11 of the act under which the same were imported, adding, that if they were, then the duty was properly assessed; that if they were not, then their verdict should be for the plaintiffs.

New products or articles of importation frequently appear, and hence it is that Congress finds it necessary to impose duties by some general designation, in order that non-enumerated articles may not escape from their just share of the public burden. Non-enumerated articles under the first act in question were subjected to a duty of ten per cent ad valorem, but the act increasing import duties included some of those articles in the enumerated list, and imposed on them a duty of five dollars per ton in addition to the duties previously imposed by the prior act. Appended to the class so enumerated in the clause of the second act under consideration was the phrase, 'and other vegetable substances not enumerated,' which were by the same clause made subject to the same additional specific duty.

Both the appraisers and the collector as well as the commissioner regarded the products imported as vegetable substances similar to the articles enumerated in the preceding part of the same clause; and if their theory is correct, then it was immaterial whether the jute rejections were or were not used for cordage, as those words, though incorporated into the corresponding clause in the prior act, were left out of the clause in the subsequent act increasing import duties.

It is the theory of the plaintiffs that the clause in the second act means the same thing as the clause in the antecedent act, but the Circuit Court held otherwise; and the court here fully concurs in the view of the Circuit Court, that the duties were properly assessed if the products imported were of a class of non-enumerated vegetable substances similar to the enumerated articles mentioned in the clause of sect. 11, which imposes the duty in question.

Plainly the question was one of fact; and the court is of the opinion that it was properly submitted to the jury in connection with the converse of the proposition, that if the products were not of that class, then their verdict should be for the plaintiffs.

Complaint is also made by the plaintiffs that when they offered evidence to show that jute rejections were never used for cordage, the court rejected the evidence as immaterial; but the court here is of the opinion that the ruling was correct, as it is clear that the words 'used for cordage' is no part of the clause of sect. 11, under which the duties were assessed.

Dissatisfaction is expressed by the plaintiffs that the circuit judge did not give the jury some better standard to guide them in the performance of their duty; but it is not perceived that there is any just ground for that complaint, as he gave them the very criterion which the tariff act prescribes,-that if the importation was of an article non-enumerated and of a class of vegetable substances similar to the enumerated articles preceding that phrase in the same clause, then the duty was properly assessed, but, if not, then the plaintiffs were entitled to the verdict.

For these reasons the court is of the opinion that there is no error in the record.

Judgment affirmed.

title: Wills v. Russell/Opinion of the Court


text: Talk:Wills v. Russell/Opinion of the Court

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text:
Savings Bank v. Creswell

APPEAL from the Supreme Court of the District of Columbia.

On June 20, 1870, the firm of S. P. Brown & Son made to Samuel P. Brown its promissory note for $10,000, payable to his order one year thereafter, which he duly indorsed to the Freedman's Saving and Trust Company. To secure its payment, he executed to Daniel L. Eaton, the actuary of the company, a deed of trust for certain lots of ground in Mount Pleasant, in the District of Columbia. Default having been made in the payment of the note, the trustee sold the property Oct. 12, 1872, and conveyed it to the company.

On March 3, 1870, John M. Jolly obtained in the court below a judgment against Samuel P. Brown. At various times in 1873 the company, for a valuable consideration, sold and conveyed a portion of said lots to different purchasers, giving to each its bond to save him harmless against said judgment. It still holds the remaining lots.

Some time about December, 1870, the National Savings Bank of the District of Columbia loaned to said Brown, or to said firm, moneys, to secure the payment of which he executed deeds of trust upon a number of other lots in Mount Pleasant. The moneys remaining unpaid, the bank, to protect its security against said judgment, purchased the same from Jolly, and, in July, 1874, issued an execution thereon, and caused it to be levied on the lots embraced by the trust-deed to Eaton.

This bill against the Savings Bank was filed by John A. J. Creswell, Robert Purvis, and Robert H. T. Leipold, the commissioners of the Freedman's Savings and Trust Company. It alleges that said promissory note remains unpaid, except so far as it has been reduced by the application of the proceeds of the lots so sold by the company, and that the latter is willing to pay its pro rata share to relieve from the lien of said judgment them and the remaining lots conveyed by Eaton, if it is in law or in equity bound so to contribute. It prays for an injunction restraining the Savings Bank and the marshal for said district, who was made a defendant, from selling said lots under said execution, and for general relief. By an amended bill, the purchasers from the company were made defendants. The National Savings Bank set up among other things in its answer that Brown, at the time of the rendition of said judgment, owned a considerable amount of property subject to the lien of said judgment other than that described in the complainants' bill, which property having been conveyed by him subsequently to his conveyances in trust to secure his debt to the defendant, the purchasers thereof are necessary parties in order to charge them with a pro rata share of said judgment.

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

The special term decreed that the complaints were entitled to have all the real estate belonging to said Samuel P. Brown on the twentieth day of June, 1870, bound by the judgment at law in favor of John M. Jolly, sold in the inverse order of its alienation by said Brown, including that conveyed by him for the security of the National Savings Bank, before the lands conveyed for the security of the Freedman's Savings and Trust Company can be called upon to contribute to the payment of any part of said judgment. The defendants were also enjoined from in any wise interfering with any of said property for the purpose of collecting or satisfying the said judgment, or any part of it, until all the other real estate belonging to said Brown on said twentieth day of June, bound by said judgment, shall have been sold, and the proceeds applied to the payment thereof.

That decree having been affirmed by the Supreme Court of the District of Columbia at its general term, the National Savings Bank appealed to this court.

Mr. James M. Johnston for the appellant.

The rule that where several parcels of land, bound by a common charge, are conveyed by warranty deed to different purchasers and at different times, such parcels are charged with the paramount lien in the inverse order of their alientation, provided the junior purchasers have notice of the lien and of the prior conveyances of portions of the land bound by it, had never, previously to the decree in this case, been adopted by the Supreme Court of the District of Columbia.

On the contrary, this court, in Hughes v. Edwards (9 Wheat. 489), recognizes the opposing rule that, in marshalling real securities bound by a common charge, each piece of the incumbered property shall bear its share of the burden, in the proportion which the value of such parcel bears to the whole incumbrance, and irrespective of the order in which the several parcels may have been conveyed. That case constitutes a rule of property in the District of Columbia, and is conclusive in the case at bar.

The propriety of charging the paramount incumbrance on the parcels of land in the inverse order of their alienation was considered in Orvis v. Powell (98 U.S. 176), but there the court only followed the local rule in force in Illinois.

The authorities are not harmonious. In the following cases, what is known as the pro rata rule has been adopted and acted upon. Barnes v. Rackster, 1 Y. & Col. N. R. 401; 1 Hilliard, Mort. 310 (citing Bacon's Abr., title Execution, B. 4; Carter v. Bernardiston, 2 Eq. Cas. Abr. 224; Sir W. Herbert's Case, 3 Cox, 14; Harris v. Ingleden, 3 P. W. 98, 99); Averall v. Wade, 2 Llo. & Goo. 252; Story, Equity, sects. 477, 484, 1233 b; Adams, Equity, 270 (citing 2 Porter, 262; 2 Rand. 384; 4 id. 272; 3 J. J. Marsh. 44; 4 Monr. 76; 2 Ed. C. R. 297); Green v. Ramage, 18 Ohio, 429; Burke v. Chrisman, 3 B. Mon. (Ky.) 50; Dickey v. Thompson, 8 id. 318; Beverly v. Brooke, 2 Leigh (Va.), 425; 2 Humph. (Tenn.) 34; Massie v. Wilson, 16 Iowa, 391; Barney v. Myers, 28 id. 472.

If the pro rata distribution of the common charge is the proper mode, the decree below, directing the property to be sold in the inverse order of its alienation by Brown, is certainly erroneous.

If this was the only error in the decree, it might be modified by directing the judgment to be paid pro rata from the several parcels of land mentioned in the bill. The appellant set up in its answer, however, that the owners of the other property, formerly owned by Brown, are necessary parties, inasmuch as their property must bear its share of the common burden. No amendment to that effect having been made, the bill should be now dismissed. Shields v. Barrow, 17 How. 130.

The bill is defective in that it fails to allege that the appellant, when the conveyance under which it claims was made by Brown, had actual knowledge or constructive notice of the prior conveyance to the company of some of the lots on which the judgment was a lien.

If a vendee should purchase one of several lots, known by him to be bound by a common charge, he, until otherwise informed from some source, has a right to presume that the remainder of the property is still vested in his vendor; and to infer that the lot so purchased is the last to be seized to satisfy the charge. Brown v. Simmons, 44 N. H. 475, 479; Chase v. Woodbury, 6 Cush. (Mass.) 143; 2 W. & T. Lead. Cas. in Eq., pt. 1, p. 298.

Hence, in order to call into existence the equity appealed to by the complainants, it must appear that the junior vendee had notice of the paramount lien and prior conveyance. Startey v. Stocks, 1 Dev. (N. C.) Eq. 314; Lock v. Fulford, 52 Ill. 166; Iglehart v. Crane, 42 id. 261, 266; Insurance Company v. Bell, 22 Barb. (N. Y.) 56, 57, 63; Green v. Ramage, 18 Ohio, 428; Reilly v. Mayer, 12 N. J. Eq. 56-60; Mechanics' Association v. Conover, 14 id. 225; Orvis v. Newell, 17 Conn. 100; Brown v. Simmons, supra; Chase v. Woodbury, supra.

Indeed, to hold that a purchaser of real estate is to be prejudiced by a mere equity, not known to him from the land records or from any other source, would be entirely opposed to the spirit of our registry laws.

The bill of complaint contains no allegation that the deed from Brown to secure the loan mode by the Freedman's Savings and Trust Company was ever recorded.

However the truth may be, evidence to establish the fact of record would not be admissible, since the proofs must be confined to the allegations. Simms v. Guthrie, 9 Cranch, 25; Boone v. Chiles, 10 Pet. 209.

It is true that the original deed is filed as an exhibit with the bill of complaint, but it is not, for that reason, a part of the latter, nor can its contents be treated as a portion of the averments of the complainants. Terry v. Jones, 44 Miss. 542; Strathan v. Insurance Company, 45 id. 600; Caton v. Willis, 5 Ired. (N. C.) Eq. 335.

Even if it were competent to refer to that deed for the purpose of supplying allegations which are wanting in the bill itself, there is nothing on its face to indicate that it was ever recorded, much less that it was of record when the appellant loaned its money on the faith of Brown's title to the land taken as security. The title of a bona fide purchaser for valuable considerations is not to be affected by loose, vague, and uncertain evidence of the existence of the prior title. If a former owner neglects to record his title, every presumption is to be made in favor of a subsequent purchaser. Boggs v. Varner, 6 Watts & S. (Pa.) 469.

But it is maintained that, even if that deed had been recorded, the appellant would not thereby be charged with constructive notice. The record does not show that Brown's title to the lots which the company subsequently owned was acquired by the deed or conveyance which passed the title to those he conveyed to secure the appellant. So far as the record shows, the parcels of ground came to Brown by different chains of title. But the appellant is not charged with constructive notice of any conveyance by Brown, unless it be in the chain of its title. Green v. Ramage, 18 Ohio, 429; Boggs v. Varner, 6 Watts & S. (Pa.) 469; Guion v. Knapp, 6 Paige, Ch. 42; Chase v. Woodbury, 6 Cush. (Mass.) 143; Hamilton v. Royse, 2 Sch. & Lef. 326.

Those courts which favor the rule that charges the lien on the several parcels of land in the inverse order of their alienation, rest their argument on the fact that the purchaser paid full consideration for the title, and received a general warranty deed. Bradley v. George, 2 Allen (Mass.), 392; Wallace v. Stevens, 64 Me. 225.

But a beneficiary, under a deed of trust, does not occupy this position, for he does not pretend to pay a full price for the property, and the trustee only receives a conveyance of the grantor's then interest in the land. Such a deed only operates by way of estoppel against the grantor, and does not profess to pass an absolutely perfect title, and for full value. In such cases the pro rata rule has been held to apply, even if, in the same jurisdiction, the opposite rule would hold in cases of warranty deeds. Ely v. Perrine, 2 N. J. Eq. 396; Pancoast v. Duval, 26 id. 445.

He who seeks to enforce an equitable right, especially if he appeals to the chancellor to grant him a mere benevolence, must allege in his bill all the facts necessary to make out his title to relief, and must show affirmatively that it would be equitable, in relation to all the parties, to afford him the relief asked. Cases supra; Tomlinson v. McKaig, 5 Gill (Md.), 276; Orvis v. Newell, 17 Conn. 100; Ridgway v. Toram, 2 Md. Ch. 308; Dorr v. Shaw, 4 Johns. Ch. 17; Sterling v. Brightbill, 5 Watts, 229, 231-233.

If the equities of the case are considered, complainants are not entitled to the relief which they seek, not having brought themselves fully within the rule on which they rely.

Both the complainants and the appellant are charged with constructive notice of the judgment lien, if either is. In this respect their claims are equally meritorious, for each purchased under a misapprehension of facts. The contracts were of the same character and for the same purpose, and the appellant had no notice of the conveyance now set up by the complainants.

But when the bill was filed in this cause the appellant had already seized, by an execution issued on the paramount judgment, a portion of the property now claimed by complainant.

Where the equities are balanced, the legal course of an execution is not to be disturbed. Miller v. Jacobs, 3 Watts (Pa.), 437. It is well settled that where parties have an equal claim to the consideration of the chancellor, the law will be allowed to take its course. Zeigler v. Louk, 2 id. 206; Erbs's Appeal, 2 Pearson & Watts, 296; McGinnis's Appeal, 16 Pa. St. 445; Wallace's Estate, 59 id. 401; Withers v. Carter, 4 Gratt. (Va.) 407.

Inasmuch, therefore, as the complainants have not alleged nor established the necessary jurisdictional facts, nor brought themselves within the rule of which they claim the benefit, nor established any equity which is so far superior to appellant's as to justify the court in interfering with a legal execution, the bill should be dismissed.

It is submitted that, even if the court below had the power to grant the complainants any portion of the relief prayed, it erred in the extent of that relief; for the complainants show no title to the land conveyed to the appellant before filing the bill, and the appellant asks no relief whatever.

Mr. Enoch Totten, contra.

The question arising in the case is, whether or not the judgment now owned and held by the National Savings Bank can be collected out of the property conveyed to the Freedman's Savings and Trust Company, until all the other property bound by the judgment and owned by Brown at the date of the sale to the company shall have been first sold and the proceeds applied to the payment of the judgment.

The lots bound by this judgment, and subsequently mortgaged or sold by Brown at different times to different persons, are chargeable in the inverse order of their alienation; that is to say, the parcels last sold are to be charged to their full value, and then go backwards until the judgment shall have been fully paid.

This doctrine is now fully established in this country. It was firmly settled in Clowes v. Dickinson, 5 Johns. (N. Y.) Ch. 285; s. c. 9 Cow. (N. Y.) 403. See also Gill v. Lyon, 1 Johns. (N. Y.) Ch. 447; Sturtevant v. Hall, 2 Barb. (N. Y.) Ch. 151. It has been followed in nearly all the States in the Union where the question has arisen. Shannon v. Marselis, Sax. (N. J.) 413; Shepherd v. Adams, 32 Me. 63; Holden v. Pike, 24 id. 427; Cushing v. Ayre, 25 id. 383; ''Com. Bank v. Western Res. Bank, 11 Ohio, 444; Cummings v. Cummings, 3 Ga. 460; Pallen v. Agricultural Bank'', 1 Freem. (Miss.) Ch. 419; s. c. 8 Smed. & M. 357; Gist v. Pressley, 2 Hill (S.C..), Ch. 318; Stoney v. Shultz, 1 id. 500; Bank v. Howard, 1 Strobh. (S.C..) 173; Wright v. Atkinson, 3 Sneed (Tenn.), 585; Conrad v. Harrison, 3 Leigh (Va.), 532; Lyman v. Lyman, 32 Vt. 79. See also 2 Lead. Cas. in Eq. (Am. notes) 237; Cary v. Folsom, 14 Ohio, 365; Gates v. Adams, 24 Vt. 70; Watson v. Barr, 7 Md. 117; Hamilton v. Schwehr, 34 id. 107; Titus v. State, 17 Wis. 248; Wynn v. Carter, 20 id. 107; Hurd v. Eaton, 22 Ill. 122; Orvis v. Powell, 98 U.S. 176. For a list of cases and remarks on this doctrine see 2 Lead. Cas. in Eq. (1877), pt. 1, p. 291.

Mr. Justice Story, in his learned work on Equity Jurisprudence, inclines to doubt the justice of the doctrine as established in America, and seems to prefer the doctrine which charges the original incumbrance ratably upon the land of subsequent purchasers. He says the doctrine has been so 'asserted in the ancient as well as the modern English cases on the subject.' 2 Story, Eq., sect. 1233 b. He cites Averall v. Wade (11 Eng. Ch. 252), as an authority sustaining this view. Upon an examination of that case it will be found that it sanctions the American rule as above laid down. Hamilton v. Royse (2 Sch. & Lef. 315) is to the same See Cowden's Estate, 1 Pa. St. 267.

Where an individual, owning two or more pieces of land bound by a personal judgment against him, sells a part of them, it is well settled as a rule of equity that the part retained shall be primarily chargeable with the debt. 2 Story, Eq., supra. It is clearly right and just, that on his alienation of a part the remainder should become immediately burdened with the entire debt. He cannot escape from the rule, and, in order to pay the judgment, enforce contribution against his vendee. This is conceded in all the cases. How, then, can he sell to a third person a privilege or right which he himself does not possess? The second purchaser 'sits in the seat of his vendor,' has precisely the same rights, and incurs the same obligations. Clowes v. Dickinson, supra. The judgment was notice to the world, and every purchaser or mortgagee was bound to ascertain what lands the debtor had alienated subsequently to its rendition. Every conveyance by Brown of land bound by the judgment directly and materially affected the lots whereof he retained the ownership, by releasing from the lien the parcels so conveyed, and transferring a corresponding additional burden to the remainder of them.

The deed of trust was in effect a mortgage, and every subsequent mortgagee was bound to take notice of its registration in the proper office. Lyman v. Lyman, 32 Vt. 81.

A judgment of the Supreme Court of the District of Columbia binds the defendant's lands. Tayloe v. Thompson's Lessee, 5 Pet. 358.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Savings Bank v. Creswell


text: Talk:Savings Bank v. Creswell

title: Talk:Savings Bank v. Creswell


text:
Savings Bank v. Creswell/Opinion of the Court

Samuel P. Brown, being seised in fee of a large number of lots constituting the subdivision of a tract of land into the town of Mount Pleasant, had a judgment rendered against him, March 3, 1870, in favor of one Jolly, for the sum of $4,694.05, in the Supreme Court of the District of Columbia, and the lots being within the District, the judgment became from that day a lien on them. On the twentieth day of June of that year, Mr. Brown borrowed of the Freedman's Savings and Trust Company the sum of $10,000, and executed to Daniel L. Eaton a deed of trust conveying a part of the lots owned by him in Mount Pleasant as security for the repayment of the loan. Under this deed of trust the lots were sold and bought in for the Freedman's Bank, and they have resold several of them and guaranteed the title to the purchasers.

A few months after the execution of the deed of trust above mentioned by Brown, he began to borrow money from the National Savings Bank, the appellant in this case, and gave deeds of trust on other lots in the same subdivision to secure the payment of these loans. In July, 1874, the National Savings Bank, fearing the loss of their security by the judgment against Brown of March 3, 1870, purchased that judgment, and ordered an execution to be issued on it, which was levied on the lots conveyed to Eaton for the benefit of the Freedman's Bank. That bank having passed into the control of Creswell and others, as commissioners appointed to wind up its affairs, they brought the present bill in chancery to release those lots from sale under that execution.

The court granted such relief as is authorized by the principle that where real estate is subjected to a lien in the hands of its owner, and he sells or mortgages separate parcels of that property subsequently to different persons, and at different times, these parcels shall be subjected to payment of the lien in the inverse order of their alienation.

The facts show that the conveyances to secure the savings bank were made subsequently to that made to secure the Freedman's Bank, and if the rule we have mentioned be a sound one, and there be no special reason to exempt this case from its operation, the Freedman's Bank was entitled to have the lots conveyed to the savings bank applied to the extent of their value in payment of the judgment, before their lots could be subjected to that payment.

There are one or two matters relied on by appellant to take this case out of the rule.

1. It is said that appellant had no actual notice of the deed of trust to Eaton when it took its mortgages, and a large part of the argument of counsel is devoted to this subject. But it does not appear that appellant in its answer set up the defence of a bona fide purchaser without notice, nor that any such question was raised in the court below. The main foundation of the suggestion, however, namely, that there is no evidence that the deed to Eaton was recorded, which appeared to be so by the transcript, is removed by the production of the original deed, having on it the certificate of the register of deeds, that it was properly recorded. This removes the foundation of the argument, and it must fail.

Another objection is that the appellant sets out in its answer that other persons had bought lots of Brown, after the rendition of the judgment, and were proper parties to this suit, and that as the complainants failed to bring them before the court, the decree in their favor is erroneous, and must be reversed for that reason.

But while the answer says that, as the appellant is informed and believes, there was a considerable amount of other property than that described in the bill, owned by said Brown, and subject to the lien of the judgment, which was sold and conveyed by him after his conveyance to secure the debt of the appellant, it does not describe the property or name the purchasers or fix the date of their purchases.

As the purchases are said to be subsequent to the creation of appellant's lien, it was the interest of appellant to set out the facts necessary to enable the complainants to bring them before the court. Nothing in the decree as rendered prevents defendant from selling these lots under his execution. The complainants, therefore, were not bound to hunt up the parties and the transactions to which appellant merely alludes in such vague and indefinite terms.

Lastly, the appellant argues that the subjection of the property covered by the lien of the judgment to its satisfaction, in the inverse order of its alienation, is not the prevailing rule in courts of equity, nor the rule of property in the District of Columbia.

Though the attention of counsel was directed during the argument to the production of any authoritative decision of the courts of the District or of Maryland which would be conclusive of the question, none could be found, after several days' opportunity for examination. The decree before us must rest on the general equity doctrine, if it be sustained at all.

The question is also a new one in this court, for Orvis v. Powell (98 U.S. 176) was decided on the ground that the principle having become a rule of property in Illinois, would be followed by us in reference to lands in that State. And Hughes v. Edwards (9 Wheat. 490) does not raise the question before us now, much less decide it. That was merely a question whether improvements constructed on the land after the execution of the mortgage became subject to its operation.

The proposition we are called on to consider is one on which the authorities, though numerous, are by no means in harmony. Mr. Justice Story, in his work on Equity (vol. ii. sect. 1233 b), approves the rule, so far as any of the property subject to the lien remains in the hands of the party against whom the lien was first established, but he says there is great reason to doubt whether it can be applied as between subsequent purchasers from that party, when it has been alienated at different times and to several persons. 'On the contrary,' he says, in such case 'there seems strong ground to contend that the original incumbrance or lien ought to be borne ratably between them, according to the relative value of the estates. And so the doctrine has been asserted in the ancient as well as the modern English cases on the subject.'

The older cases cited for this proposition scarcely sustain it. In Sir William Herbert's Case (3 Coke, 11), it was resolved that 'if A. be seised of three acres, and acknowledge a recognizance or statute, and enfeoff B. of one acre, and C. of another acre, and the third descends to his heir, and if execution be sued out against the heir he shall not have contribution against the purchasers, for the heir sits in the seat of his ancestor.' Among them is also Lanoy v. The Duke and Duchess of Athol (2 Atk. 444), in which Lord Hardwicke says: 'Suppose a person who has two real estates, mortgages both to one person, and afterwards only one estate to a second mortgagee, who had no notice of the first; the court, in order to relieve the second mortgagee, have directed the first to take his satisfaction out of that estate only which is not in mortgage to the second mortgagee, if that is sufficient to satisfy the first mortgage, in order to make room for the second mortgagee, even though the estates descended to two different persons.' This seems to be a pretty clear statement of the rule adopted in many of the States of the Union at the present day, though based rather upon the principle applicable to marshalling assets, that he who has a right to resort to two funds, in one of which alone another party has a subsidiary lien, shall be compelled to exhaust the one to which the other cannot resort before coming upon the one in which they both have an interest, than on the ground now relied on in the courts of this country.

That ground is that the first purchaser has a right to suppose that the part of the mortgaged property which he leaves with the mortgagor will in his hands be first subjected to the payment of the mortgage he has made. To this Judge Story assents. But the principle goes further, and holds that when a second purchaser from the mortgagor buys either all or a part of the incumbered property which remains, he cannot place himself in a better position than his grantor, and revive the burden on the first purchaser's land, from which it had been wholly or partially relieved by its primary pressure on the land left by him in the hands of the mortgagor.

No very clear decision of the question seems to have been rendered in the English courts on the subject, though occasionally alluded to, until the case of Averill v. Wade, decided in the Irish Chancery by Lord Chancellor Sugden in 1835, whose great authority in all that concerned titles to real estate will not be disputed. Looking to the question as governed by the doctrine of marshalling assets, he appears to decide against its application in cases like the one now before us, and refers to an opinion of Lord Eldon in 8 Vesey, 382, in which, while this point was not directly in issue, the argument of that eminent chancellor leaned that way.

But while these latter are authorities of great weight, it is to be remembered that they were made long after the time to which this court has looked to the English chancery practice as governing ours, while the case of Sir William Herbert, and Lord Hardwicke's decision, were before; and that the English courts have not considered, as far as we know, the principle on which the rule is based in this country.

That principle was stated by Chancellor Kent, with his usual force and clearness, in 1821, in Clowes v. Dickenson (5 Johns. (N. Y.) Ch. 235), which has become the leading case on the subject in this country.

After referring to the case of Sir William Herbert, he says: 'This case settles the question as between the vendor and purchaser, or the heirs of the vendor and the purchaser; and if there be several purchasers in succession, at different times, I apprehend in that case also there is no equality and no contribution as between these purchasers. Thus, for instance, if there be a judgment against a person owning at the time three acres of land, and he sells one acre to A., the two remaining acres are first chargeable in equity with the payment of the judgment debt, as we have already seen, whether the land be in the hands of the debtor himself or of his heirs. If he sells another acre to B., the remaining acre is then chargeable in the first instance with the debt as against B., as well as against A., and if it should prove insufficient, then the acre sold to B. ought to supply the deficiency in preference to the acre sold to A.; because, when B. purchased, he took his land chargeable with the debt in the hands of the debtor, in preference to the land already sold to A. In this respect we may say of him as it is said of the heir, he sits in the seat of his grantor, and must take it with all its equitable burdens; it cannot be in the power of the debtor, by the act of assigning or selling his remaining land to throw the burden of the judgment or a ratable part of it back upon A.' The doctrine and the reason upon which it is founded cannot be better stated than in this extract from the opinion.

We may, as an additional reason, suggest a principle often called into action in recent times in the courts; namely, that where one of two innocent persons must suffer a loss, it should fall on him who by reasonable diligence or care could have protected himself, rather than on him who could not. In the case supposed, the second purchaser, at the time of his purchase, knowing that the land which he buys is subject to the incumbrance before that already sold, can exact of the vendor security or protection against the incumbrance, which it is out of the power of the first vendor to do at the time his risk is increased by the very act of the second purchaser.

Since the decision in the case of Clowes v. Dickenson, the doctrine there announced has been followed by much the larger number of courts of the different States, though there are a few of very high authority which have held that as between vendees of land subject to a prior incumbrance, equality is justice, and the debt shall bear equally upon all the parcels originally subject to it, in proportion to their values.

The cases are collected in the briefs of counsel on both sides in this case, to which reference is here made as they will be given by the reporter, and in Leading Cases in Equity, vol. ii. part, 1, p. 291, edition of 1877.

We are of opinion that the preponderance of authority as shown by judicial decisions, as well as the weight of sound argument, is in favor of the rule laid down by Chancellor Kent, and the decree in this case is accordingly

Affirmed.


text: Talk:Savings Bank v. Creswell/Opinion of the Court


text:
Railroad Company v. Schutte

MOTION to vacate the supersedeas, and dismiss an appeal from the Circuit Court of the United States for the Northern District of Florida.

The facts are stated in the opinion of the court.

''Mr. Matt. H. Carpenter and Mr. Wayne Mac Veagh'' in support of the motion.

Mr. Philip Phillips and Mr. William A. Maury, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Railroad Company v. Schutte


text: Talk:Railroad Company v. Schutte

title: Talk:Railroad Company v. Schutte


text:
Railroad Company v. Schutte/Opinion of the Court

In this case the appellees have moved,--

1. To vacate the supersedeas, because the approval of the supersedeas bond by the justice of this court, who allowed the appeal, was obtained by fraud and perjury; and,

2. To dismiss the appeal, because the transcript of the record which has been filed in this court is not complete, and is not properly certified.

The appellants also have moved for leave to file a new bond in case the old one shall be set aside.

1. As to the vacation of the supersedeas.

That the approval of the bond was brought about by gross fraud and perjury is so conclusively shown that no attempt has been made to deny it. The evidence also shows with equal certainty that the bond was obtained in the most irregular way. A lawyer who, to say the least, was an entire stranger to all the parties in interest, was employed to procure, within thirty-six or forty-eight hours, sureties for the appellants sufficient to secure the payment of $100,000. He was to be paid for his services six bonds of $1,000 each of the Florida Central Railroad Company, the appellant corporation, which were then of no marketable value. In due time he produced the requisite number of persons to sign as sureties. When they came, the 'usual form of justification of about four lines in length' was 'ignored,' and a full affidavit was drawn for each surety, wherein was set forth 'the name and residence of the surety, the amount of real estate, its location, its value, whether or not incumbered, if so, to what amount; next, the amount of his personal property, its character, whether or not incumbered, and if so, to what amount; next, whether or not the surety was upon any other bond; next, whether or not there were any judgments against the surety; and finally summing up that he owned so much over all his debts and liabilities, naming the sum. Each of these questions each surety answered favorably, and swore to. The justifications were extraordinary in their minuteness, as the affidavits will show.'

This being done, a bond sufficient in form was signed by the 'procured' sureties. One of the persons who signed, said to be a 'very wealthy man,' was paid $125 for what he did. Another, 'the son of a former judge of the Supreme Court of the State of New York,' received $12.50; another, a clored porter in a lawyer's office, $10; another was paid $10; and another was promised $50, but actually paid nothing. They were all irresponsible pecuniarily, and known to or suspected by the police of the city of New York as 'purchasable sureties.' The money to pay them for their fraudulent work was furnished by an agent of the appellant company under the form of buying back one of the worthless bonds promised as a reward for what was done.

After the bond was executed by the sureties thus obtained, the president of the appellant corporation was called in. He signed officially the name of the corporation, and affixed the corporate seal, but did not see, or ask to see, any of the persons who had become bound with his company. Neither he nor any other person actually interested in the litigation became in any manner personally bound.

With such a bond, procured in such a way, the president of the corporation presented himself at the last moment to the justice of this court, who heard the cause in the Circuit Court at his summer residence in Vermont, and asked that the bond be approved. On its presentation, as we are informed by the testimony of the president himself, the justice read and seemed to be impressed 'with the fulness and particularity of the justifications.' He said, 'This seems to be a good bond.' The reply was, 'Yes, Judge, I believe it to be a very good bond.' The justice then asked as to one of the parties whose name appeared, and the reply was, 'I am informed that he is the son of a former judge of the Supreme Court of the State of New York of that name,' adding that another of the signers, 'I am advised, is a very wealthy man.'

Under these circumstances, the bond was approved. To allow it to stand and to operate as a stay of execution upon an important decree until the case can be reached in its order on our crowded docket, would be a reproach upon the administration of justice. We are aware that in Jerome v. McCarter (21 Wall. 17) we said, 'That, upon facts existing at the time the security was accepted, the action of the justice, within the statute and within the rules of practice adopted for his guidance, is final,' and that we would 'presume that when he acted, every fact was presented to him that could have been.' We are not inclined to depart from that rule, but, in a case of this kind, fraud is always open to inquiry. When discovered, justice requires that summary relief should be afforded, whenever and wherever it may be done consistently with the forms of orderly judicial procedure. This bond is as much false as if it had been forged. The persons who signed it are not in fact what they were represented to be. We have no hesitation in setting aside the approval of the bond.

2. As to the acceptance of a new bond in the place of the old one.

This application is addressed to our judicial discretion, and is based on the alleged ignorance of the officers and agents of the appellant corporation as to the character of the bond they got accepted. They insist in the most positive manner that they were deceived, and that they actually believed the security they offered was ample. The character of the president is vouched for under oath by many persons occupying high positions in public and private life, and they all say 'they do not believe he would knowingly countenance or in any way participate in or suffer an attempt to impose on the Supreme Court of the United States, or any justice thereof, a fraudulent or worthless bond;' but the fact still remains that he did present such a bond, and if he was ignorant of the wrong that was being done, the other agents of the company were not. Taking the whole case together, we think it quite as incumbent on us to refuse to accept a new bond as it is to set aside the old one.

The motion to vacate the supersedeas is granted.

3. As to dismissing the appeal.

The evidence shows that after the bond was accepted the president of the railroad company went with his own copyists to the office of the clerk of the Circuit Court, and in the absence of the principal clerk selected such of the papers and proofs used on the hearing below as he thought were necessary, and had them copied into the transcript. This being done, he caused a certificate to be added, signed in the name of the clerk by a deputy, and sealed with the seal of the court, to the effect that the transcript annexed contained copies of such entries, papers, and proofs as were 'necessary on the hearing of the appeal prayed and allowed in the said cause.' It is now alleged that many important papers and documents used on the hearing below, and necessary for the proper determination of the cause here, have been omitted from the transcript as filed.

While we desire to encourage in every proper way all attempts made in good faith to exclude immaterial matter from the transcripts brought here on appeals or writs of error, it will not do to permit the appellant or the plaintiff in error to make up a record to suit himself, without any regard to the wishes of his opponents or the rules and practice of the court. We therefore order,--

That the appellees file with the clerk of this court, and with the counsel for the appellant, on or before the first day of February next, a statement of the papers, documents, and proofs used on the hearing below, and omitted in the transcript now on file, which they deem necessary for the proper presentation of the cause, and that unless the appellant shall, on or before the fifteenth day of March, file in this court as part of the record copies of such papers, duly certified by the clerk of the Circuit Court or his deputy, under the seal of the court, this appeal be dismissed.

If in this way unnecessary papers are brought up, we will, on application, make such order in respect to costs as may under the circumstances be proper.


text: Talk:Railroad Company v. Schutte/Opinion of the Court


text: Improvement Company v. Slack

title: Improvement Company v. Slack


text: Talk:Improvement Company v. Slack

title: Talk:Improvement Company v. Slack


text:
Improvement Company v. Slack/Opinion of the Court

The 'Argilite Mining and Manufacturing Company' was incorporated by an act of the General Assembly of Kentucky passed March 4, 1865. Its name, by an amendment to the charter, was changed to the 'Kentucky Improvement Company,' and it was authorized to 'construct one or more rail tracks from any lands owned or improved by said corporation to convenient points on the Ohio or Little Sandy River, or both, or to connect with other railways, and to maintain said track or tracks, and to draw cars over the same by suitable motive power.' For the 'construction and convenient and proper use and maintenance of such railroads' the company was authorized to condemn and appropriate the necessary lands and materials. Pursuant to said authority, the company built and equipped a railroad, and on Aug. 15, 1866, issued in payment therefor its six per cent coupon bonds to the amount of $500,000, secured by mortgage on its landed property and improvements. The road was finished in June, 1868, and thereafter the company transported over it its own freight, officers, and agents, and in addition thereto, though not in terms so authorized by the charter, from time to time other passengers and freight for hire. Held, that the company was, within the meaning of the ninth section of the act of July 13, 1866 (14 Stat. 138), a railroad company, and as such, for the year 1870, liable to the tax of five per cent on coupons thereby imposed.

ERROR to the Circuit Court of the United States for the District of Massachusetts.

This was an action brought by the Kentucky Improvement Company against Charles W. Slack, collector of internal revenue for the third collection district of Massachusetts, to recover the amount of certain internal-revenue taxes which, it was alleged, had been erroneously and illegally assessed and collected.

The case was submitted to the court below upon the following agreed statement of facts:--

'After an appeal duly made to the Commissioner of Internal Revenue (April 29, 1873), this suit was brought against the collector to recover the sum of $750, paid to him May 24, 1870, being a tax of five per cent assessed upon coupons to the amount of $15,000, payable Feb. 15, 1870, on bonds of said company to the amount of $500,000, dated Aug. 15, 1866, and bearing interest at the rate of six per cent, payable semi-annually.

'The company was originally organized under an act of the General Assembly of the Commonwealth of Kentucky, approved March 4, 1865, by the name of the 'Argilite Mining and Manufacturing Company,' which act provided as follows:--

"SECT. 2. The objects and purposes of the incorporation of said company shall be the mining for coal, iron ore, petroleum, carbon, or rock oil, and any and all other minerals or mineral substances, or the direct products of the earth, or any or all of them, and the manufacture and refining of any or all of them, and transportation to market of the same; the location and field of mining and manufacture of said company shall be in Greenup, or any of its adjoining counties.'

"SECT. 7. Said company shall have the power, and may, if they choose so to do, lock and dam Little Sandy River up to their mines and property: Provided, for the condemnation of lands and property for said purpose the proceedings shall be had as is now provided by law for the condemnation of mill sites.

"SECT. 8. Said company shall have the power to take, acquire, and hold such lands, mines, and mining rights as they may deem necessary for the uses of said company, and all such personal property, machinery, boats, flats, &c., as may be necessary, and to dispose of, for the use of the company and the stockholders, any or all of the same.'

'It was enacted by an act of the said General Assembly, approved December 14, as follows:--

"SECT. 1. That the name of the 'Argilite Mining and Manufacturing Company' is hereby changed, and said corporation shall hereafter be known and styled the 'Kentucky Improvement Company."

"SECT. 4. The said corporation is hereby authorized to construct one or more rail tracks from any lands owned or improved by said corporation to convenient points on the Ohio or Little Sandy River, or both, or to connect with other railways, and to maintain said track or tracks, and to draw cars over the same by suitable motive power. The company is hereby authorized to condemn and appropriate such lands and materials as may be necessary for the construction and convenient and proper use and maintenance of such railroads: Provided, that for the condemnation of the lands and materials for such purpose the same proceedings shall be had as are now required by law for the condemnation of lands and materials for turnpikes and plank-roads: Provided, further, that the land condemned for any railroad track shall not exceed in width one hundred feet.

"SECT. 5. That, in order to carry out to the fullest extent the purposes and objects of said act of incorporation, the said company is authorized to sell all minerals, mineral substances, products of the earth, and all other articles of commerce and manufacture lawfully possessed by them, and to buy and sell all such articles of merchandise as may be required to carry out the objects of their charter, and to establish agencies in any part of the United States, for the prosecution of the traffic hereby authorized.

"SECT. 6. That, should said company lock and dam the Little Sandy River, they shall build two bridges over said river sufficient for the public travel, one of the bridges to be at the crossing of the Greenupsburg and Raccoon Furnace Road, and the other at the crossing of the Greenupsburg and Grayson Road, at or near the Argilite Mills.

'The Kentucky Improvement Company was duly organized under the acts aforesaid, and commenced and continued operations thereunder until it ceased to exist, about March 1, 1870.

'At an adjourned meeting of the shareholders of said company, held on the 24th of July, 1866, it was resolved,--

"1st, To authorize the building of a railroad and to provide locomotives, cars, and other facilities for the transportation of coal and other productions to market for the canal openings near Hunnewell Furnace to Hockaday's Landing, on the Ohio River.

"2d, That a sum not exceeding $500,000 be raised for the purpose of building and equipping said railroad, and afford facilities for transportation to market for the mineral and other productions of the company's property.

"3d, That the president and board of directors of this company be, and they hereby are, authorized and empowered to issue bonds to the amount of $500,000, . . . secured by an indenture of mortgage on all their present landed property and improvements . . . bearing six per cent interest, the interest payable semi-annually."In pursuance of the above vote, an issue of bonds was made to the amount and bearing the interest named, and of date Aug. 15, 1866, and was secured by a mortgage to trustees of even date of the then landed property and improvements of said company, and the coupons taxed in this case were a part of the coupons attached thereto.

'The whole issue was duly subscribed for and delivered to the subscribers. The road was finished and opened for the business of the company about the 1st of June, 1868.

'In addition to its own freight and its own officers and servants, the company transported over its road from time to time for hire other passengers and freight, but there was no provision in its charter in terms authorizing it to convey freight or passengers other than its own.

'The receipts of the company were as follows:--

OTHER THAN COMPANY.

receipts. receipts. iron freight.

$4,868.80 $3,833.36  $29,709.

'The company's sales of coal were as follows:--

1867, Jan. 1.......................... " ." . 324.

1868, "  "  ..........................." . 25,576.

1869, "   "  .........................." . 40,909.

1870, " "  ....................  Feb. 15. 6,541.

---

$74,126.

'And the company produced for its own use during same period as follows:--

'And the company's sales of iron were:--

1867, Jan. 1.......................... " ." . 95,846.

1868, "  "  ..........................." . 161,735.

1869, "   "  .........................." . 145,812.

1870, " "  ....................  Feb. 15. 18,204.

---

$470,669.

'And the company's sales at its stores on the ground during same period amounted to $506,529.75.'

The court below found for the defendant, whereupon the company sued out this writ of error.

Mr. Francis W. Palfrey for the plaintiff in error.

The company was a mining, not a railroad company. It constructed and operated the railroad for its own special uses.

The primary object of a railroad company is commerce and transportation. Railroad Company v. Peniston, 18 Wall. 49.

Railroad companies are carriers for hire. Chicago, Burlington, & Quincy Railroad Co. v. Iowa, 94 U.S. 155.

A corporation created by statute can exercise no powers and has no rights except such as are expressly given or necessarily implied. Huntington v. Savings Bank, 96 id. 388.

'Express power is invariably given (if intended to be conferred) to the railroad company to equip its road, and transport port goods and passengers thereon and charge transportation therefor. This practice evidently springs from the conviction that a railroad company is not necessarily a transportation company, and that, to make it such, express authority must be given for that purpose, in compliance with the rule that no power is conferred upon a corporation which is not given expressly or by clear implication.' Lake Superior & Mississippi Railroad Co. v. United States, 93 id. 442.

In this case there is no indication that the convenience of the public was considered,-there is not a word said in the charter about general commerce, general transportation, rates of toll, rates of fare, common carriers, depots, or stations. On the contrary, the charter points to the construction and use of a track or tracks for the business of the company. The legislature of Kentucky contemplated the creation not of a railroad company, but of a mining and manufacturing company with permission to construct and use a set of tracks for its own special purposes; and the action of the company was in accordance with the grant.

But if the court shall be of opinion that the company was a railroad company within the meaning of the act, it was certainly not 'a railroad company indebted for any money for which bonds had been issued.'

The company, while it was a mining and manufacturing company and nothing else, voted 'to authorize the building of a railroad. . . for the transportation of coal and other productions to market. . ..

'That a sum. . . be raised for the purpose of building and equipping said railroad, and afford facilities for transportation to market for the mineral and other productions of the company's property;. . . to issue bonds. . . secured by an indenture of mortgage on all their present landed property and improvements.'

Upon this showing, it is submitted that, even if the company shall be held to have afterwards become a railroad company, it could not, by such acts, become a railroad company indebted for money, &c., within the language of the act.

Suppose the company, instead of building the road it did build, had built a short track from one of its furnaces to another, and occasionally carried a passenger or a parcel over such track for hire, could it be properly claimed that such action constituted it a railroad company, and subjected the coupons on its total bond issue to the internal-revenue tax?

Or suppose that, instead of issuing bonds to the amount of $500,000, it had issued bonds to the amount of $1,000,000, and used half the proceeds for opening mines and half for building a railroad, could it be properly claimed that it should pay the internal-revenue tax on the coupons on its whole issue?

Nor will it do to say that, even if it was not a railway company, it might receive and pay the internal-revenue tax as an agent of the government to collect the income tax from its bondholders. That such tax was an income tax is settled by Haight v. Railroad Company, 6 Wall. 15; Railroad Company v. Jackson, 7 id. 262; United States v. Railroad Company, 17 id. 322; Stockdale v. Insurance Company, 20 id. 323; Railroad Company v. Rose, 95 U.S. 78.

But if this court shall be of opinion that the plaintiff in error was not only a railroad company, but a railroad company indebted, &c., within the language of the act, then we submit that it was clearly protected against the tax by the proviso in the act of July 13, 1866. 14 Stat. 139.

The Solicitor-General, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

Moneys involuntarily paid for internal-revenue taxes illegally exacted may be recovered back from the collector in an action of assumpsit.

Taxes of the kind, to the amount of $750, were paid to the collector by the plaintiffs, after an unsuccessful appeal to the Commissioner. Redress being refused, the plaintiffs instituted the present suit in the State court, where the defendant appeared and removed the cause into the Circuit Court for the same district. Subsequently both parties appeared in the Circuit Court and submitted the cause to the Circuit Court upon the agreed statement of facts exhibited in the transcript.

Bonds with coupons annexed, it appears, were issued by the plaintiff company in the sum of $500,000, bearing interest at the rate of six per cent, payable semi-annually. Sufficient appears also to show that the tax in question was a tax of five per cent upon $15,000 of those coupons which fell due at the time specified in the agreed statement. Payment of the tax was resisted upon the ground that the plaintiffs were not a railroad company, and the claim to recover back the money paid for the tax, with interest, is made upon the same ground. Judgment was rendered in favor of the defendant in the Circuit Court, and the plaintiffs sued out the present writ of error.

Errors assigned in the court are as follows: 1. That the Circuit Court erred in rendering judgment for the defendant. 2. That the court erred in finding that the plaintiffs were a railroad company. 3. That the court erred in holding that the plaintiffs were not protected from paying the tax by the provision in the amendatory act. 14 Stat. 139.

When first organized under their original charter, it is doubtless true that the plaintiffs were a mining and manufacturing company, covering a very large field of operations, and with some quite extraordinary powers; as, for example, they might lock and dam Little Sandy River up to their mines and property, and for that purpose they might exercise the same power in condemning lands and property as was authorized by law for the condemnation of mill-sites.

Had the case stopped there, the question would be attended with difficulty, and perhaps would require a reversal of the judgment; but it does not stop there. Instead of that, the agreed statement shows that the name of the company was subsequently changed to that of the Kentucky Improvement Company, and the powers and privileges of the company were not only greatly enlarged, but were extended to objects and purposes other than those relating to mining and manufacturing. Authority is given to the company by the fourth section of the new act to construct one or more rail tracks from any lands owned or improved by the corporation to convenient points on the Ohio or Little Sandy River, or both, or to connect with other railways, and to maintain said track or tracks, and to draw cars over the same by any suitable motive power.

Under the enlarged power conferred by the new act the company may not only construct railway tracks and connect with other railways, but they may condemn and appropriate such lands and materials as may be necessary for the construction and convenient and proper use and maintenance of such railroad, without any limitation except that the same proceedings shall be had in effecting such condemnation as are required by law for the condemnation of lands and materials for turnpikes and plank-roads, and that the lands condemned for any railroad track shall not exceed in width one hundred feet.

Tested by the terms of the charter, it is clear that the powers granted were more comprehensive than are usually found in railroad charters, both in respect to the routes it may establish and the lands and materials the company may condemn and appropriate to such uses. For aught that appears to the contrary they might construct an indefinite number of tracks in any direction from their own lands, and might connect with every other railroad in the State; and in constructing such tracks or making such connections they might without limit condemn and appropriate all such lands and materials as might be necessary and convenient in constructing and maintaining the same, provided the width for the railroad track did not exceed one hundred feet.

Confirmation of the proposition that the plaintiffs are a railroad company is also derived from the evidence reported, which shows that the plaintiffs, after their road was constructed and equipped with rolling-stock, used it not only to transport their own products and manufactures, but as a public highway for the conveyance of freight and passengers.

Two suggestions are made by the plaintiffs in explanation of the evidence introduced to prove that the railroad was used for the public accommodation: 1. That the annual receipt from that source of employment was less than that derived from mining and manufacturing; but it is a sufficient answer to that suggestion to say that it does not appear that they did not accommodate all shippers and passengers who applied for any such services. 2. That the charter does not in terms authorize the company to convey freight or passengers for hire. Suppose that is so, still it remains that power is given to the plaintiffs to construct a railroad, and, if so, it must be inferred that the builders and owners of it have a right to use it, and to charge a reasonable price for its use.

Ample power to lock and dam Little Sandy River and flow the water to their property was given by the act of incorporation, nor is there any ground to suppose that that power was taken away or withdrawn by the amendatory charter, as the latter provides that if the company shall lock and dam that river they shall build two bridges over the river, sufficient for the accommodation of the public, at the points specified in the eighth section of the act, which warrants the conclusion that the power to construct railroads and to lock and dam the river named are both included in the charter as amended. Enough appears to show that the plaintiffs adopted the act changing their corporate name, and that the company was duly organized under the new charter, and that they continued operations under it until the company ceased to exist.

Meetings were held by the stockholders, and at an adjourned meeting they resolved to authorize the building of a railroad, and to provide locomotives, cars, and other facilities for the transportation of coal and other productions to market from the canal openings to a certain landing on the Ohio River. What that distance is the resolution does not state, but it is supposed to be about twenty miles.

They also resolved that a sum not exceeding $500,000 be raised for the purpose of building and equipping said railroad, and to afford facilities for transportation to market for the mineral and other productions of the company's property. Officers had previously been elected, and the shareholders also empowered the president and directors to issue bonds for the amount raised, to be secured by mortgage of all their landed property and improvements, the bonds bearing six per cent interest, payable semi-annually. Bonds to that amount were accordingly issued and were secured as indicated, and it appears that the coupons taxed in this case were a part of the coupons attached to those bonds.

Two years later, the railroad was finished and opened for business, and it appears that the company within one year and eight months transported passengers and freight over its railroad for hire to the amount of $8,700 in addition to their own freight and passengers not paying fare.

Viewed in the light of these suggestions, it is so clear that the plaintiffs are a railroad company, and that their road is a railroad, that it is not deemed necessary further to pursue the argument.

Grant that, and still it is insisted by the plaintiffs that the tax was illegally exacted, because the company of the plaintiffs was not a railroad company indebted for any money for which bonds had been issued.

Congress enacted to the effect that any railroad indebted for any money for which bonds or other evidences of indebtedness have been issued, subject to interest, or with coupons representing interest, shall pay a tax of five per cent on the amount of all such itnerest or coupons. 14 Stat. 138; Barnes v. The Railroads, 17 Wall. 294-299.

Express authority was given to the plaintiffs as an improvement company to construct one or more rail tracks, as before explained, or to connect with other railways, and to maintain said track or tracks and draw cars over the same, by any suitable motive power, before the plaintiffs as such improvement company resolved to build said railroad and to provide locomotives, cars, and other facilities for the purposes antecedently mentioned; and it was for the purpose of constructing and equipping that railroad that the shareholders of the company resolved to raise the said sum of $500,000, and to issue the coupon bonds for the amount. Coupon bonds were accordingly issued, and the record shows that the tax in question was assessed on $15,000 of such coupons.

Examined in the light of these suggestions, as the case should be, and it follows that the company of the plaintiffs was a railroad company indebted for money for which bonds had been issued.

Concede both of the preceding conclusions, and still the plaintiffs contend that they should recover, because they insist that the receipts of the company derived from the public use of their railroad were insufficient to pay the semi-annual inter est of the bonds, and that they are protected from such a tax by the proviso added by the one hundred and twenty-second section of the amendatory act. 14 Stat. 139.

Nothing is shown in support of the theory of fact assumed in the proposition, except what is found in the table exhibited in the transcript. Even suppose that that is correct, it by no means follows that it will avail the plaintiffs in the present case, for several reasons: 1. Because, if the interest was in fact paid by the plaintiffs, it is of no consequence where they obtained the money, it being clear that in order to raise the question there must be an actual failure to make the payment. 2. Where the interest is paid the presumption is conclusive that every other circumstance existed to justify the assessment of the tax. 3. Proof to show that the interest has never been paid is not exhibited, nor is the table referred to of a character to satisfy the court that it shows the whole amount of the pecuniary advantage which the plaintiffs derived from their railroad. Without more, these remarks are sufficient to show that each of the assignments of error must be overruled.

Judgment affirmed.

MR. JUSTICE FIELD, with whom concurred MR. CHIEF JUSTICE WAITE and MR. JUSTICE HARLAN, dissenting.


text: Talk:Improvement Company v. Slack/Opinion of the Court


text:
Improvement Company v. Slack/Dissent Field

MR. JUSTICE FIELD, with whom concurred MR. CHIEF JUSTICE WAITE and MR. JUSTICE HARLAN, dissenting.

I dissent from the judgment of the court in this case. The construction of the short railway by the company for its own use, to carry the products of its mine to the Ohio River, did not, in my opinion, convert the Improvement Company, which was organized to mine for coal, iron, and other minerals, into a railroad company, so as to bring it within the statute providing for a tax upon the coupons of bonds issued by such companies.


text: Talk:Improvement Company v. Slack/Dissent Field


text:
Railway Company v. Slack

ERROR to the Circuit Court of the United States for the District of Massachusetts.

The facts are stated in the opinion of the court.

Mr. Francis W. Palfrey for the plaintiff in error.

The Solicitor-General, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Railway Company v. Slack


text: Talk:Railway Company v. Slack

title: Talk:Railway Company v. Slack


text:
Railway Company v. Slack/Opinion of the Court

Statutory authority was given to the Eastern Kentucky Railway Company to purchase, acquire, and hold any line of railway, finished or unfinished, lying on or near their line or crossing the same or between the termini of their railway, and to make payment for such purchase or acquisition on such terms as should be agreed between the parties. Pursuant to that authority, it purchased all the property of the Kentucky Improvement Company, real, personal, and mixed, including their franchise, subject, however, to the mortgage previously made by the grantors of their lands and improvements to secure a certain issue of bonds, amounting to $500,000, as therein more fully set forth. Due conveyance of the same was made to it by deed dated Feb. 28, 1870, as appears by the agreed statement of facts.

Coupons were attached to the bonds, and it appears that an internal-revenue tax of two and a half per cent was assessed thereon by the official assessor. Payment of the tax, after an unsuccessful appeal to the Commissioner, was made by the rail way company. The present suit was instituted to recover back the amount paid, with interest, as having been illegally exacted. Service was made; and the parties appeared, and, having consented to the agreed statement of facts exhibited in the record, submitted the cause to the court without a jury. Hearing was had; and the court rendered judgment in favor of the defendant, and the plaintiff removed the cause into this court.

Two errors are assigned: 1. That the court erred in finding that the grantors of the plaintiffs were a railroad company, and liable to the tax assessed upon the coupons attached to their bonds. 2. That the court erred in finding that the plaintiffs were liable for the tax assessed.

Railroad companies were by law made subject to an internalrevenue tax for the year 1871 of two and a half per cent on the amount of all interest or coupons paid on bonds or other evidences of debt issued and payable in one or more years after date. 16 Stat. 260.

Such taxes for the year specified in the act cited were assessed against the plaintiffs, and the present suit was instituted to recover back the amount paid with lawful interest.

It appears by the act of incorporation that the plaintiffs were created a body politic and corporate for the purpose of constructing a railroad with a single or double track, with all the privileges and rights usual to such corporations. Power to make the purchase of the line of railroad constructed by the Improvement Company, as described in the opinion just read, is admitted. Nor is it necessary to enter into any explanation as to the circumstances under which the bonds of the Improvement Company were issued, as it is admitted in the agreed statement of facts filed in this case that those circumstances are fully shown in the agreed statements of facts filed in that case.

Viewed in the light of these suggestions, it is quite clear that any discussion of the question presented in the first assignment of errors is unnecessary, except to refer to the decision in Improvement Company v. Slack (supra, p. 648), and the reasons there given for the conclusion that the company in that case was a railroad company.

Suppose that is so, then it is conceded by the plaintiffs in this case that they cannot sustain their second assignment of errors, which is all that need be said upon the subject.

Judgment affirmed.


text: Talk:Railway Company v. Slack/Opinion of the Court


text:
Railroad Company v. Blair

MOTION to dismiss an appeal from the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Mr. W. C. Larned in support of the motion.

Mr. Lyman Trumbull, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Railroad Company v. Blair


text: Talk:Railroad Company v. Blair

title: Talk:Railroad Company v. Blair


text:
Railroad Company v. Blair/Opinion of the Court

The decree appealed from in this case was rendered Feb. 12, 1879, during the December Term, 1878, of the Circuit Court. The appeal was not allowed until April 14, 1879, which was during the March Term, 1879. The practice only dispenses with a citation when the appeal is taken and perfected in open court during the term at which the decree complained of is actually entered; and, to be technically sufficient, so as to render a citation unnecessary, the taking of the appeal should in some form appear on the records of the court. The theory of the rule is, that as a party to a suit is constructively present in court during the entire term at which his cause is for hearing, and as the doings of the court are matter of record at the time, he is chargeable with notice of all that is done during the term affecting his suit; because, if actually absent when an order is made, he can on his return obtain full information by an examination of the minutes. Still, an appeal otherwise regular would not probably be dismissed absolutely for want of a citation, if it appeared by clear and unmistakable evidence, outside of the record, that the allowance was made in open court at the proper term, and that the appellee had actual notice of what had been done.

The records of the court in this case show an allowance of the appeal in court when the appellees were present by their solicitors. It was, however, at a term subsequent to the rendition of the decree, and under the practice a citation was necessary to bring the appellees to this court. The case was docketed promptly here at the term to which the appeal was returnable, and as the appellants might well have supposed that a citation would be waived, we will not dismiss the appeal absolutely, but apply the rule acted upon in Dayton v. Lash (94 U.S. 112), and 'grant summary relief' 'by imposing such terms upon the appellants as under the circumstances may be legal and proper.'

An order may be entered that unless the appellants cause a citation, returnable on the first Monday of February next, to be issued and served upon the appellees before that date, the appeal be dismissed.

So ordered.


text: Talk:Railroad Company v. Blair/Opinion of the Court


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Page:Dictionary of National Biography volume 60.djvu/51

 on 24 June was an utter fiasco, and on 2 July a proclamation was issued for Copley's arrest. It was by his confession on 12 July that the others conspirators were implicated, and this, coupled with the fact that Copley was pardoned, suggests that he also was playing a double part (, Life of Raleigh, ii. 140, 142 sqq.) It was not till 16 July that a proclamation was issued for Watson's arrest, which apparently was not effected until about 5 Aug. He ‘was taken in a field by the Hay in Herefordshire (or Brecknockshire …) by Mr. … Vaughan. … 'Twas observed that Mr. Vaughan did never prosper afterwards’ (, Brief Lives, ed. Clark, ii. 293). Watson's confession, dated 10 Aug., is printed in Tierney's ‘Dodd’ (vol. iv. App. pp. xix sqq.). Owing to the efforts made by the government to disentangle the obscure ramifications of the two plots, Watson was not brought to trial till 15 Nov. at Winchester Castle (‘Baga de Secretis’ in Dep. Keeper of Records, 5th Rep. App. ii. 135–9). He was condemned to death for high treason, and was executed at Winchester on 9 Dec. with William Clark. Among the manuscripts at Stonyhurst is a ‘Breve relazione della morte di due sacerdoti Gul. Watsoni et Gul. Clarkei, 9 Dec. 1603.’ In the proclamation for his arrest Watson is described as ‘a man of the lowest sort [ = very short] … his hair betwixt abram [ = auburn] and flaxen; he looketh asquint, and is very purblind, so as if he reade anything he puttethe the paper neere to his eyes; he did weare his beard at length of the same coloured haire as is his head. But information is given that nowe his beard is cut.’ Parsons says he ‘was so wrong shapen and of so bad and blinking aspect as he looketh nine ways at once.’

[The most important sources for Watson's life are the documents printed from the Petyt MSS. by Mr. T. G. Law in his Archpriest Controversy (Camd. Soc. 2 pts. 1897–8), and especially Watson's autobiographical letter to the attorney-general, endorsed April 1599; a doubt whether this is the correct date, Watson's own vagueness, and a difficulty in reconciling his dates with those afforded by occasional references in the state papers, combine to render the chronology of his life somewhat tentative. See also Law's Jesuits and Seculars, 1889; Douai Diaries; Cal. State Papers, Dom.; Parsons's Brief Apologie and Manifestation, both 1602?; Foley's Records S.J. vol. i. passim; Morris's Troubles, i. 196, ii. 260, 277; Lansd. MS. 983, art. 15; Cotton. MS. Vesp. cxiv. f. 579; Hist. MSS. Comm. 3rd Rep. App. pp. 150, 152, 338, 13th Rep. App. iv. 129; Cal. State Papers, Venetian, 1592–1603, Nos. 1052, 1061, 1078, 1089; Notes and Queries, 4th ser. iv. 314, 422; and Watson's Works in Brit. Mus. Library. For his conspiracy, see Confessions and Examinations among the Domestic State Papers in the Record Office, the most important of which are printed in Tierney's Dodd, vol. iv. App. pp. i–lii; others are at Hatfield (cf. extract in Addit. MS. 6177, f. 265); further details are given in the despatches of Beaumont, the French ambassador, in the Brit. Mus. King's MS. 123, ff. 309 sqq., 329–43, and MS. 124; see also Weldon's Court of James I, pp. 340 sqq.; Birch's Court and Times of James I; Lodge's Illustrations, iii. 75–6; Edwards's Life of Raleigh, vol. ii. passim; Sharpe's London and the Kingdom, ii. 6–7; Gardiner's Hist. of England, i. 108–40; Hume's Life of Raleigh, 1897, pp. 254, 259, 263, 274; cp. also arts. ;, eighth ; , d. 1603; ;, fifteenth ; ; and .]  WATSON, WILLIAM (1715–1787), physician, naturalist, and electrician, born on 3 April 1715 in St. John's Street, near Smithfield, London, was the son of a tradesman. He was entered at the Merchant Taylors' school in 1726, and in 1730 was apprenticed to an apothecary named Richardson. From his youth he made many excursions into the country to search for plants, having a strong taste for botany, and he obtained the premium given annually by the Apothecaries' Company for proficiency in that subject. In 1738 Watson married and set up in business for himself. He became distinguished for his scientific knowledge, and on 9 April 1741 was elected F.R.S., though he does not seem to have published any researches previous to this date. Between this and his death, however, he contributed to the ‘Philosophical Transactions’ more than fifty-eight original papers and summaries of the work of others, bearing on natural history, electricity, and medicine, many of which are of considerable importance. Watson was a constant attendant at the regular meetings of the Royal Society and at the private associations of its members, which met on Thursdays, first at the Mitre in Fleet Street, and later at the Crown and Anchor in the Strand (, op. cit. ii. 333). In 1745 he was awarded by Sir Hans Sloane [q. v.], as surviving executor of Sir Godfrey Copley [q. v.], the Copley medal for his electrical research. Later, Sloane, with whom he had become very intimate, nominated him trustee of the British Museum, and after its establishment in Montagu House in 1756 Watson showed great assiduity in the internal arrangements and in furnishing the garden with a large collection of plants


text:
United States v. Lippitt

APPEAL from the Court of Claims.

This was a claim of Lippitt for $1,742, to which he alleged that he was entitled as commutation for fuel and quarters while he was in the military service of the United States. It was referred to the court below by the Department of War.

He thereupon filed his petition. The United States traversed all its averments, and also pleaded that the claim was not filed in or transmitted to the Court of Claims within six years after it had accrued.

The court below found the following facts:--

1. The claimant was colonel of the Second California Volunteers, a regiment in the military service of the United States, from some day preceding the 2d of July, 1863, to some day subsequent to the 1st of August, 1864.

2. On the 2d of July, 1863, the claimant, then being in command of the district of Humboldt, California, where his regiment was stationed, was ordered by the commanding general of the Department of the Pacific to report in person at the head-quarters of the department, there to await further orders. The head-quarters of the department were at San Francisco during the war. The order referred to is that annexed to and forming part of the petition.

3. In complance with these orders, the claimant about the 25th of July, 1863, left his regiment, and from about that day to the 1st of August, 1864, was in San Francisco, absent from his regiment, awaiting orders.

4. There is no evidence that during the said period, the claimant received quarters and fuel in kind. There is no evidence that they could have been furnished in kind. The records of the War Department show that most if not all the officers stationed in San Francisco received commutation of quarters and fuel.

5. The commuted value of quarters and fuel in San Francisco, during the said period, for a colonel of infantry, was $1,742.

6. On the 19th of July, 1864, the following order was issued, in pursuance of which the claimant returned to his regiment:--

'HEAD-QUARTERS DEPARTMENT OF THE PACIFIC,

'SAN FRANCISCO, CAL., July 19, 1864.

'I, Colonel Francis J. Lippitt, Second Infantry California Volunteers, will repair to Fort Miller and assume command of his regiment; head-quarters at Fort Miller.

'The Quartermaster's Department will furnish the necessary transportation.

'By command of Major-General McDowell.

'RICHARD C. DUNN,

'Assistant Adjutant-General.'

7. It does not appear that the claimant was ordered to or performed any military duty during the time he was awaiting orders; nor that he reported himself at head-quarters, San Francisco, after his first report on his arrival there.

8. It does not appear that claimant made any demand on the proper officer at San Francisco that quarters and fuel be furnished him.

9. It does not appear that claimant received any military order after being placed on 'awaiting orders,' until the order of July 19, 1864, to repair to his regiment.

10. The claimant, in 1865, presented his claim to the proper department, and pressed its settlement from that day to the 9th of January, 1878, when it was referred by the War Department to this court, by virtue of the following order:--

'To the Honorable the Judges of the Court of Claims:--

'The undersigned, Secretary for the Department of War of the United States, hereby respectfully represents that a claim has been made against said department by Francis J. Lippitt, late colonel Second California Infantry, brevet brigadier-general United States Volunteers, for commutation of fuel and quarters while awaiting further orders at San Francisco, in 1863-64.

'Said claim involving controverted questions of law, and the decision affecting a class of cases, the undersigned hereby, and in accordance with the provisions of sect. 1063 Revised Statutes of the United States, causes said claim, with all the papers pertaining thereto, to be transmitted to the Court of Claims for trial and adjudication.

'GEO. W. McCRARY,

'Secretary of War.

'WAR DEPARTMENT, Jan. 9, 1878.'

Filed in the Court of Claims Jan. 10, 1878.

The Court of Claims held that the action was not barred by the Statute of Limitations, and rendered judgment on the merits for the claimant.

The United States then appealed to this court.

The Attorney-General for the United States.

Mr. James Lowndes, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: United States v. Lippitt


text:
The Encyclopedia Americana (1920)/Richthofen, Ferdinand, Baron von

RICHTHOFEN, rĭ H 'hōf-ĕn, Ferdinand, , German geologist: b. Karlsruhe, 5 May 1833; d. Berlin, 7 Oct. 1905. He was educated at the universities of Breslau and Berlin; and went to Austria in 1856 to study the geology of Tyrol, Siebenbürgen and northern Hungary. In 1860 he joined a Prussian expedition to the East and spent 12 years in China, Japan, Siam, Java, the Philippine Islands, Formosa, California and Nevada. Returning to Europe in 1872, he accepted professorships at Bonn, Leipzig and Berlin, successively. He published ‘China, Ergebnisse eigner Reisen und darauf gegründeter Studien’ (1877-83), and the following have appeared in English: ‘The Comstock Lode’ (1865); ‘Principles of the Natural System of Volcanic Rocks’ (1867); ‘Letters to the Shanghai Chamber of Commerce’ (1869-72).


text: Talk:United States v. Lippitt

title: Talk:United States v. Lippitt