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Weightman v. Corporation of Washington/Opinion of the Court

This is a writ of error to the Circuit Court of the United States for the District of Columbia.

According to the transcript, the action was trespass on the case, and was brought by the plaintiff, to recover damages against the corporation, defendants, on account of certain personal injuries sustained by him from the falling of a certain bridge constructed by the authorities of the corporation, and which, as he alleged, they were bound to keep in good repair, and safe and convenient for travel.

Referring to the declaration, it will be seen that the plaintiff alleged, in substance and effect, that, at the time and long before the bringing of the suit, there was and still is a certain common and public bridge over Rock creek leading from K street north, in the city of Washington, to Water street in Georgetown, and that the defendants had been accustomed to keep the same in repair, and, of right, ought to have made such repairs to the same as to have rendered it safe and convenient for travel by the citizens generally, whether on foot, or with their horses, carts, carriages, or other vehicles; nevertheless, the plaintiff averred that the bridge, on the twentieth day of May, 1854, was in an insecure, insafe, and dangerous condition, by reason of the default and negligence of the defendants, so that, while the plaintiff was then and there lawfully passing over and across the same, in an ordinary vehicle, the bridge, in consequence of its unsafe and insecure condition, and of the default and negligence of the defendants, broke, gave way, and fell in, whereby the plaintiff was, with great force, thrown and precipitated into the creek, and received the injuries particularly described in the declaration.

Issue was duly joined between the parties, upon the plea of not guilty filed by the defendants, and upon that issue the parties went to trial. Evidence was introduced by the plaintiff, showing that he was returning from Georgetown to the city of Washington at the time the accident occurred, and was riding in one of the omnibuses running between the two cities; that while crossing the bridge in the omnibus the bridge gave way and fell, and the vehicle, with the plaintiff in it, was precipitated into the creek, whereby he narrowly escaped drowning. His left arm was broken and his left hand crushed; and the statement of the bill of exceptions is, that 'the hand and arm have been rendered useless for life.' He was also seriously bruised; and his injuries were of such a character that he was confined thereby to his house for a long time, under medical attendance; and the case shows that, throughout the whole of that period of time, he suffered great bodily pain.

On the other hand, evidence was given by the defendants that, before any plan of the contemplated structure was adopted, they passed an ordinance, raising a committee to advertise for proposals for the erection of the abutments and construction of the bridge. That committee consisted of the mayor and two other members of the council; and the evidence offered by the defendants tended to show that they took the opinion of scientific men upon the subject, before they approved the plan under which the bridge was built, and that the defendants acted in good faith throughout, and with a view of building a bridge suitable, in all respects, for the purposes for which it was required. They also offered evidence tending to show that the materials of the bridge were of the best description, that the work was carefully examined by their agents as the same was done, and that the giving way of the bridge was solely the result of accident, arising from a defect in the plan under which it was constructed. After the bridge was built, the defendants passed another ordinance, appointing a commissioner to inspect the bridge; and they introduced evidence tending to show that he never ascertained or reported to them that the bridge was unsafe, defective, and out of repair; and they insisted at the trial, and offered evidence tending to prove, that they had no notice from that officer, or otherwise, that the bridge was insecure, unsafe, or defective, either in principle or in fact.

Rebutting evidence was then given by the plaintiff, showing that the bridge was an iron bridge, with a single span of more than a hundred feet; that it was constructed on the plan of Rider's patent, and was built by the inventor of that improvement. He also gave evidence tending to prove that one of the scientific persons, whose opinion was sought by the committee appointed under the first ordinance, stated to the defendants, at the time he was consulted, to the effect that, although the principle of the plan was correct, still it could not be applied indefinitely to iron bridges; that the arch of the bridge was higher than had ever before been attempted, and that the contractor remonstrated against building it so high, but that the defendants required it to be so constructed; and he also proved that the contractor was still of the opinion that the bridge fell in consequence of the height of the arch. One of the committee, also, was examined by the plaintiff, and he testified that he was not consulted about the plan; that, although he believed it to be a good one at the time, he is now satisfied that it was essentially and radically defective. He also examined the commissioner of the first ward, who testified that he crossed the bridge a few days before the accident occurred, and that it was so tremulous and shook so violently that he was apprehensive it would fall; and divers other witnesses testified that, for several days before the bridge fell, they had observed that several of the braces were broken, and some of the wedges had fallen out, and the bridge was loose and shook greatly when carriages passed over it.

At the prayer of the defendants the court instructed the jury that, upon the whole evidence, the plaintiff could not recover in this action, and the plaintiff excepted. Under the instructions of the court, the jury returned their verdict in favor of the defendants.

1. Looking at the whole evidence, it is obvious that the charge of the court cannot be regarded as correct, unless it be true, as is contended by the defendants, that they are not responsible in damages to an individual for injuries received by him in crossing the bridge, although it may appear that the injuries were received without any fault of the complaining party, and were occasioned solely through the defect of the bridge, and the default and negligence of the defendants. It is conceded that the defendants were bound by their charter to maintain the bridge and keep it in repair; and it is fully proved, and not denied, that it was defective and very much out of repair at the time the accident occurred. Full and uncontradicted proof was also adduced by the plaintiff that he was seriously and permanently injured; and it is not possible to doubt, from the evidence, that his injuries were received without any fault of his own, and solely through the insufficiency of the bridge and its want of repair. Want of ordinary care on the part of the plaintiff was not even suggested at the trial, and the circumstances disclosed in the evidence afford no ground whatever for any such inference.

Having shown these facts, it only remained for the plaintiff to prove if the defendants, under any circumstances, are responsible, in this form of action, for such an injury, that they were in default, and had been guilty of negligence in suffering the bridge to continue open for public travel while it was known to be out of repair and insecure. Both sides introduced testimony on this point, but the charge of the court withdrew entirely the plaintiff's evidence from the consideration of the jury. Where there is no evidence to sustain the action, or one of its essential elements, the court is bound so to instruct the jury; but where there is evidence tending to prove the entire issue, it is not competent for the court, although the evidence may be conflicting, to give an instruction which shall take from the jury the right of weighing the evidence and determining its force and effect, for the reason that, by all the authorities, they are the judges of the credibility of the witnesses, and the force and effect of the testimony. Greenleaf vs. Birth, (9 Pet., 299;) Bank of Washington vs. Triplet et al., (1 Pet., 31.) Applying that rule to the present case, it is clear, in view of what has already been stated, that the charge of the court cannot be sustained, if the defendants are liable in this form of action, under any circumstances, for such an injury.

2. It is not, however, upon any such ground that the defendants attempt to sustain the instruction, but they insist that, being a municipal corporation, created by an act of Congress, they are invested with the power over the bridge merely as agents of the public, from public considerations and for public purposes exclusively, and they are not responsible for the non-feasances or mis-feasances of the persons necessarily employed by them to accomplish the object for which the power was granted. Municipal corporations undoubtedly are invested with certain powers, which, from their nature, are discretionary, such as the power to adopt regulations or bylaws for the management of their own affairs, or for the preservation of the public health, or to pass ordinances prescribing and regulating the duties of policemen and firemen, and for many other useful and important objects within the scope of their charters. Such powers are generally regarded as discretionary, because, in their nature, they are legislative; and although it is the duty of such corporations to carry out the powers so granted and make them beneficial, still it has never been held that an action on the case would lie against the corporation, at the suit of an individual, for the failure on their part to perform such a duty. But the duties arising under such grants are necessarily undefined, and, in many respects, imperfect in their obligation, and they must not be confounded with the burdens imposed, and the consequent responsibilities arising, under another class of powers usually to be found in such charters, where a specific and clearly-defined duty is enjoined in consideration of the privileges and immunities which the act of incorporation confers and secures. Where such a duty of general interest is enjoined, and it appears, from a view of the several provisions of the charter, that the burden was imposed in consideration of the privileges granted and accepted, and the means to perform the duty are placed at the disposal of the corporation, or are within their control, they are clearly liable to the public if they unreasonably neglect to comply with the requirement of the charter; and it is equally clear, when all the foregoing conditions concur, that, like individuals, they are also liable for injuries to person or property arising from neglect to perform the duty enjoined, or from negligence and unskilfulness in its performance. At one time it was held that an action on the case for a tort could not be maintained against a corporation; and, indeed, it was doubted whether assumpsit would lie against a corporation aggregate, since, it was said, the corporation could only bind itself under seal; but courts of justice have long since come to a different conclusion on both points, and it is now well settled that corporations, as a general rule, may contract by parol, and, like individuals, they are liable for the negligent and unskilful acts of their servants and agents, whenever those acts occasion special injury to the person or property of another. Whether the action in this case is maintainable against the defendants or not, depends upon the terms and conditions of their charter, as is obvious from the views already advanced.

By the second section of their charter it is provided, among other things, that they shall continue to be a body politic and corporate, * *  * 'and, by their corporate name, may sue and be sued, implead and be impleaded, grant, receive, and do all other acts as natural persons.' They may purchase and hold real, personal, and mixed property, and dispose of the same for the benefit of the city. Large and valuable privileges also are conferred upon the defendants; and the thirteenth section of the charter provides, in effect, that the defendants shall have the sole control and management of the bridge in question, * *  * 'and shall be chargeable with the expense of keeping the same in repair, and rebuilding it when necessary.' Comment upon the provision is unnecessary, as it is obvious that the duty enjoined is as specific and complete as our language can make it; and it is equally clear, that the bridge is placed under the sole control and management of the defendants; and, in view of the several provisions of the charter, not a doubt is entertained that the burden of repairing or rebuilding the bridge was imposed upon the defendants, in consideration of the privileges and immunities conferred by the charter. Most ample means, also, are placed at the disposal of the defendants, or within their control, to enable them to perform the duty enjoined. Whatever difference of opinion there may be as to the other conditions required to fix the liability, on this one, it would seem, there can be none, as the defendants have very large powers to lay and collect taxes on almost every description of property, real and personal, as well as on stocks and bonds and mortgages, and they also derive means for the use of the city from granting licenses, and from the rents and profits of real estate which they own and hold. All the conditions of liability, therefore, as previously explained, concur in this case.

It is supposed by the defendants, that the decision of this court in The City of Providence vs. Clapp, (17 How., 161,) is opposed to the right of the plaintiff to maintain this action; but we think otherwise. Injury had been received by the plaintiff in that case, in consequence of one of the principal streets of the city having been blocked up and encumbered with snow; and the principal question was, whether such an obstruction was one within the meaning of the statute of the State on which the action was founded; and the court held that the city was liable. Cities and towns are required by statute, in most or all of the northeastern States, to keep their highways safe and convenient for travellers by day and by night; and if they neglect that duty, and suffer them to get out repair and defective, and any one receives injury through such defect, either to his person or property, the delinquent corporation is responsible in damages to the injured party. No one, however, can maintain an action against the corporation grounded solely on the defect and want of repair of the highway, but he must also allege and prove that the corporation had notice of the defect or want of repair, and that he was injured, either in person or property, in consequence of the unsafe and inconvenient state of the highway. Duty to repair, in such cases, is a duty owed to the public, and consequently, if one person might sue for his proportion of the damages for the non-performance of the duty, then every member of the community would have the same right of action, which would be ruinous to the corporation; and, for that reason, it was held, at common law, that no action, founded merely on the neglect to repair, would lie. It was a sound rule of law, and prevails everywhere to the present time. Reference is often made to the case of Russell vs. The Men of Devon, (2 Term, 667,) as an authority to show that no action will lie against a municipal corporation in a case like the present; but it is a misapplication of the doctrine there laid down. Suit was brought, in that case, against the inhabitants of a district, called a county, where there was no act of incorporation, and the court held that the action would not lie; admitting, however, at the same time, that the rule was otherwise in respect to corporations. But whether that be so or not, the rule here adopted has been fully sanctioned in all the English courts. Henley vs. The Mayor, &c., of Lyme, (5 Bing., 91.) It was ruled in the Common Pleas by Best, Ch. J., and the case was then removed into the King's Bench by writ of error, and was then decided by Lord Tenderden and his associates in the same way. Same vs. Same, (3 Barn. & Adol., 77.)

Judgment of affirmance having been given in the King's Bench, the cause was removed to the House of Lords by another writ of error, sued out by the same party. Baron Parke gave the opinion on the occasion, all of the other judges and the Lord Chancellor concurring. Among other things, he said that, in order to make good the declaration, it must appear, first, that the corporation is under a legal obligation to repair the place in question; secondly, that such obligation is matter of so general and public concern that an indictment would lie against the corporation for non-repair; thirdly, that the place in question is out of repair; and lastly, that the plaintiff has sustained some peculiar damage beyond the rest of the king's subjects by such want of repair; and after explaining these several conditions, and showing that the case fell within the principles laid down, he stated that it was clear and undoubted law, that wherever an indictment would lie for non-repair, an action on the case would lie at the suit of a party sustaining any peculiar damage. Mayor of Lyme Regis vs. Henley, (2 Cl. and Fin., 331.) Numerous decisions have, since that time, been made by the courts in this country, approving the rule laid down in that case, and applying it to cases like the present. Erie vs. Schwingle, (22 Penn., 384;) Storrs vs. The City of Utica, (17 N. Y., 104;) Conrad vs. The Trustees of Ithaca, (16 N. Y., 159;) Browning vs. The City of Springfield, (17 Illinois, 143;) Hutson vs. The City of N. Y., (5 Sand., S.C.. R., 289;) Lloyd vs. The Mayor, &c., of the City of N. Y., (1 Seld., 369;) Wilson vs. City of N. Y., (1 Denn., 595; 2 Denn., 450;) Rochester White Lead Co. vs. The City of Rochester, (3 Conn., 463;) Smoot vs. The Mayor, &c, of Wetumpka, (24 Ala., 112;) Hicocke vs. The Trustees of the village of Plattsburg, (15 Barb., S.C.., 427;) Mayor, &c., of N. Y. vs. Furze, (3 Hill, 612.) Contrary decisions, undoubtedly, are to be found, but most of the cases are based upon a misapplication of what was decided in Russell vs. The Men of Devon, to which reference has already been made, and which is certainly not an authority for any such doctrine at the present time. In view of the whole case, we are of the opinion that the charge of the Circuit Court was erroneous, and the judgment is accordingly reversed with costs, and the cause remanded, with directions to issue a new venire.


text: Talk:Weightman v. Corporation of Washington/Opinion of the Court

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Wabash and Erie Canal v. Beers

Appeal from the Circuit Court of the United States for the district of Indiana.

Beers filed his bill in the Circuit Court, averring inter alia that the defendants, as trustees of the Wabash and Erie canal, had certain moneys in their hands, arising from the sales of land and from tolls on the canal; that he, the complainant, had a lien on the proceeds of the land and upon the tolls, of which lien the defendants had notice, but refused to satisfy it. The bill prayed a decree that the defendants pay to the plaintiff the amount so due to him on a day to be named by the court, and that, in default of such payment, the canal be put into the hands of a receiver. The Circuit Court found the facts to be as alleged in the bill, ascertained the amount due the plaintiffs to be $3,755 60, and therefore ordered, adjudged, and decreed that the defendants pay into the clerk's office, on or before November 1, the sum found due; 'or, in default thereof, the court will, at the next term of this court, on motion of the complainant, appoint a receiver to take possession of said canal, or some portion thereof, for such time and on such terms as shall be according to the rules of this court, and just and equitable to the parties.'

Mr. Gillet, for the appellees, moved to dismiss the appeal, and submitted that this was not a final decree, from which an appeal would lie to this court. He cited the Judiciary Act of 1789, sec. 22; Wells vs. Hoag, (7 Paige, 18;) Beebe vs. Russell, (19 How., 283;) Haskel vs. Roul, (1 McCord Ch. Rep., 32;) and argued that the cases of Fagoy vs. Conrad, (6 H., 201,) Perkins vs. Fonnquet, (ib., 206,) Pullem vs. Christian, (ib., 209,) are not opposed to this view.

Mr. Usher, for the appellees, opposed the motion, and insisted that the decree was final. It is a simple adjudication of the question raised upon the bill, answer, and replication, and it is none the less a final decree because it is coupled with a threat of the court to appoint a receiver in case the defendants shall disobey it. He cited Harney vs. Bronson, (1 Leigh, 108;) Shepherd vs. Starke, (3 Mumford, 29;) Cook vs. Berry, (4 How., Miss., 503;) Larne vs. Larne, (2 Little, 261;) Hynds' Ch., 429; 2 Madd., 243; Newland, 49; 3 Dan. Ch. Prac., 1949.

Mr. Chief Justice TANEY.

title: Wabash and Erie Canal v. Beers


text: Talk:Wabash and Erie Canal v. Beers

title: Talk:Wabash and Erie Canal v. Beers


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Page:Devonshire Characters and Strange Events.djvu/462

386 to form a settlement in Madagascar. According to (b) the pirates established themselves on the east coast, lat. 15 30', where there was a bay and an island before it.

Probably Antongil Bay is meant. They built a fort, finding the natives divided up into clans under their several chiefs, who were incessantly at war with one another—"So," says Johnson, "they sometimes joyned one sometimes another; but wheresoever they sided, they were sure to be victorious; for the Negroes here had no Fire arms; so that at length these Pirates became so terrible to the Negroes, that if two or three of them were only seen on one Side, when they were going to engage, the opposite Side would fly without striking a Blow. By this means they not only became feared, but powerful; all the Prisoners of War they took to be their slaves; they married the most beautiful of the Negro women, not one or two only but as many as they liked. Their Slaves they employ'd in planting Rice, in Fishing, Hunting, etc. Besides which, they had abundance of others, who lived, as it were, under their protection. Now they began to divide from one another, each living with his own Wives, Slaves and Dependants, like a separate Prince; and, as Power and Plenty naturally beget Contention, they sometimes quarrelled with one another, and attacked each other at the Head of their several Armies. But an Accident happened, which oblig'd them to unite again for their common Safety. They grew wanton in Cruelty, and nothing was more Common than, upon the slightest Displeasure, to cause one of their Dependants to be tied to a tree, and shot thro' the Heart. This occasioned the Negroes to conspire together, to rid


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Wabash and Erie Canal v. Beers/Opinion of the Court

This decree is final. It is decisive of the case made upon the record. It is positive, and not alternative. It leaves no question of right between the parties open for future adjudication. The decree orders the money to be brought into court within a limited time, and the court warns the defendants that if they fail or make default a particular measure will be taken to compel obedience. There is no want of finality here.

The motion is denied.


text: Talk:Wabash and Erie Canal v. Beers/Opinion of the Court


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United States v. Babbit

Writ of error to the District Court of the United States for the district of Iowa.

The United States brought debt against Lysander W. Babbit and his sureties on his official bond as register of the land office at Kanesville, Iowa. Babbit was commissioned on the 6th of April, 1853, and held his office until the 20th of October, 1856, to which time his accounts were adjusted by the accounting officers of the treasury, showing a balance against him of $9,816 24. This amount consisted of fees received by him for locating military bounty land warrants under the acts of February 11, 1847, September 25, 1850, March 22, 1852, and March 3, 1855. The accounts credited him with commissions to the full amount of $3,000, and the balance of the fees received by him being in excess of the maximum allowed by law, the United States brought this suit to recover them. The defence was, that the fees rightfully belonged to the officer himself, and he was not bound to account for them to the United States. The question of law raised in the cause was, whether a register of the land office who has received fees for locating military bounty lands can retain them, whatever may be their amount, or whether he is bound to account for them, and pay over to the treasury all he receives beyond three thousand dollars of such fees, as of others. The District Court decided the point in favor of the defendants, and the United States brought the case into the Supreme Court on writ of error.

The Attorney General (Mr. Bates) for the United States.

Mr. Reverdy Johnson, of Maryland, and r. Gillet, of Washington city, for defendant.

Mr. Justice SWAYNE.

title: United States v. Babbit


text: Talk:United States v. Babbit

title: Talk:United States v. Babbit


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United States v. Babbit/Opinion of the Court

This was an action in the court below, upon the official bond of the defendant, Babbit, as register of the land office at Kanesville, in the State of Iowa. The bond bears date on the 9th day of May, 1853. The petition, we are advised, is according to the practice in the courts of that State. It sets out a copy of the bond, and alleges, as a breach, that Babbit, 'as such receiver, and by virtue of his office, to wit, from the 6th day of April, 1853, to the 20th day of October, 1856, received, as fees for the location of military bounty land warrants, under the provisions of the acts of Congress approved 11th of February, 1847, 25th of September, 1850, 22d of March, 1852, and 3d of March, 1855, the sum total of $13,879 08; and that sum the said Babbit still holds, and refuses to pay to the plaintiffs, though often requested and directed by the proper officers to do so-the sum of nine thousand eight hundred and sixteen dollars and twenty-four cents.'

The pleader has annexed to, and made a part of the petition, a Treasury transcript of the accounts of the register, showing the balance against him claimed by the plaintiffs.

The defendants demurred, and assigned for causes:

1. That the petition was so defective in form that the plaintiffs could not, by law, maintain their action.

2. That the petition did not set forth a cause of action in proper form.

3. That no cause of action was set forth in the petition; for that, by law, the defendant Babbit was entitled to retain the said moneys received by him, as fees of office, and was not bound to account to the plaintiffs for the same.

The petition is in striking contrast with the brevity and clearness of the common law forms in like cases. It contains, however, all the substantial elements of a good declaration, and sufficiently discloses the cause of action which the pleader designed to present.

This brings us to the consideration of the main question in the case, which is, whether the defendant Babbit is entitled to retain, for his own use, the fees in controversy? The proper solution of this question must depend upon a careful examination of the acts of Congress to which our attention has been called.

The act of April 20, 1818, (3 Stat., 466,) provides: 'That, instead of the compensation now allowed by law to the registers of the land offices, they shall receive an annual salary of five hundred dollars each, and a commission of one per contum upon all moneys expressed in the receipts by them filed and entered, and of which they shall have transmitted an account to the Secretary of the Treasury: Provided, That the whole amount which any register of the land offices shall receive under the provisions of this act shall not exceed, for any one year, the sum of three thousand dollars.'

The act of February 11, 1847, (9 Stat., 125,) gave to certain non-commissioned officers, musicians, and privates in the Mexican war, each one hundred and sixty acres of land. This act makes no provision for fees.

The act of May 17, 1848, (9 Stat., 231,) authorized registers and receivers to receive from the holders of warrants the fees therein specified, for their services in carrying out the provisions of the act of 1847, with a proviso, that where the warrant was located for the use of the volunteer to whom it was issued, no compensation should be charged either by the register or receiver.

The act of September 28, 1850, (9 Stat., 520,) authorized the issuing of bounty land warrants to the soldiers who performed military service in the war of 1812, or in any of the Indian wars since 1790, and to the commissioned officers in the Mexican war. This act made no provision for fees; but, on the contrary, directed the locations to be made 'free of expense.'

The act of March 22, 1852, (10 Stat., 4,) extends the benefits of the act of 1850 to all cases where the militia or volunteers of any State or Territory were called into military service and paid by the United States, subsequent to the 18th of June, 1812.

The second and third sections of that act are as follows:

'SEC. 2. That the registers and receivers of the land offices shall hereafter be severally authorized to charge and receive for their services, in locating all military bounty land warrants issued since the 11th day of February, 1847, the same compensation or per-centage to which they are entitled by law for sales of public lands for cash, at the rate of $1 25 per acre, the said compensation to be hereafter paid by the assignees or holders of such warrants.

'SEC. 3. That registers and receivers, whether in or out of office at the passage of this act, or their legal representatives in case of death, shall be entitled to receive from the treasury of the United States, for services heretofore performed in locating military bounty land warrants, the same rate of compensation provided in the preceding section for services hereafter to be performed, after deducting the amount already received by such officers under the act entitled 'An act to require the holders of military land warrants to compensate the land officers,' &c., approved May 17, 1848: Provided, That no register or receiver shall receive any compensation out of the treasury for past services, who has charged and received illegal fees for the location of such warrants: And provided, further, That no register or receiver shall receive for his services, during any year, a greater compensation than the maximum now allowed by law.'

The appropriation act of March 3, 1853, (10 Stat., 224,) contains at its close the following proviso:

'That whenever the amount received at any United States land office, under the third section of an act entitled 'An act to make land warrants assignable, and for other purposes,' approved March 22, 1852, has exceeded or shall exceed the amount which the registers and receivers at any such office are entitled to receive under said third section, the surplus which shall remain, after paying the amount so due as aforesaid to said registers and receivers, shall be paid into the treasury of the United States as other public moneys.'

The act of March 3, 1855, (10 Stat., 635,) provides:

'That each register of a land office and receiver of public moneys shall receive the same amount of pay for each and every entry of land made under the graduation act of 1854, as such officer is by law entitled to receive for similar entries of land at the minimum price of one dollar and twenty-five cents per acre: Provided, That the whole amount received per year shall in no case exceed the limitation fixed by existing laws.'

By another act of the same date as the preceding act, (10 Stat., 701,) it is provided:

'That the registers and receivers of the several land offices shall be severally authorized to charge and receive for their services, in locating all warrants under the provisions of this act, the same compensation or per-centage to which they are entitled by law for the sales of public lands for cash, at the rate of one dollar and twenty-five cents per acre, the said compensation to be paid by the assignees or holders of such warrants.'

The general appropriation act of August 18, 1856, (11 Stat., 91,) provides:

'That, in the settlement of the accounts of registers and receivers of the public land offices, the Secretary of the Interior be authorized to allow, subject to the approval of Congress, such reasonable compensation for additional clerical services and extraordinary expenses incident to said offices as he shall think just and proper, and report to Congress all such cases of allowance at each succeeding session, with estimates of the sum or sums required to pay the same.'

The act of March 3, 1853, (10 Stat., 245,) fixes the salaries of registers and receivers in California at $3,000 each, and prohibits them from receiving any per-centage or fees, except for deciding pre-emption cases.

The act of July 17, 1854, (10 Stat., 306,) limits the salaries of the registers and receivers of Oregon and Washington Territories each to $2,500 per annum, and office rent, and prohibits them from receiving fees or emoluments of any kind, except the receivers' necessary expenses for depositing moneys.

The act of July 12, 1858, (11 Stat., 325,) gives the same compensation to registers and receivers in New Mexico which those officers receive in Washington Territory, with a proviso, that their compensation, including fees, shall not exceed $3,000 each per annum.

This is the legislation, by the light of which we are to make up our judgment in this case.

It is a rule in the construction of statutes, that all relating to the same subject-matter shall be considered together.

The act of 1818 fixes a specific sum as the maximum amount which registers shall be permitted to receive. Whenever Congress has spoken upon the subject since that time, the same policy has been adhered to. This remark applies to this class of officers alike in the Atlantic and Pacific States and Territories. The act of 1856 provides a mode of compensating them 'for additional clerical services and extraordinary expenses.' The act of 1852 provides for the compensation, upon the basis of fees, of registers who had gone out of office, and of those who were then in office. The latter, for future as well as past services, were limited to the maximum then 'allowed by law,' which was three thousand dollars per annum.

It would be singular if one rate of compensation were provided for those then in office, and their predecessors, and another and a different one in respect of their successors, for the same services, rendered under the same circumstances. It is insisted by the counsel for the defendants in error that this is a necessary result, because the proviso at the end of the third section of this act, which imposes the limitation, is confined, in its operation, to the cases mentioned in the previous part of the same section. If this were so, the result claimed would not necessarily follow. In that case, we should find no difficulty in holding it to be clearly implied that the same rule of compensation should apply to their successors as to the then incumbents and their predecessors. What is implied in a statute, pleading, contract, or will, is as much a part of it as what is expressed. (2 Paine's Rep., 251,) Koning vs. Bayard; (3 Wend., 258,) Haight vs. Holley; (10 Wend., 218,) Rogers vs. Kneland; (20 Wend., 447,) Fox vs. Phelps; (Com. Dig., Tit. Devise, n. 12.)

'A thing within the intention of the makers of the statute is as much within the statute as if it were within the letter.' (Plow., 366,) Zouch vs. Stowell; (3 How., 565,) U.S. vs. Freeman.

But we do not place our decision upon this ground. We are of opinion that the proviso referred to is not limited in its effect to the section where it is found, but that it was affirmed by Congress as an independent proposition, and applies alike to all officers of this class.

Whether the proviso in the appropriation act of 1856 is to be construed as referring to the 3d section of the act of 1852, according to its letter, or to the 2d section, as is claimed in behalf of the Government, we have not found it necessary to consider.

The views we have expressed are sufficient to decide thin case. They conduct us to the conclusion, that the court below erred in sustaining the demurrer.

Judgment of the District Court reversed, and cause remanded, with directions to proceed in conformity to the opinion of the Supreme Court.


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


text:
Steamer New Philadelphia

Patrick F. Brady filed his libel against the steamer New Philadelphia, her tackle, apparel, and furniture, in the District Court of the United States for the southern district of New York, in a case of collision, civil and maritime, alleging that he, the libellant, was owner of the coal barge Ownen Gorman, which was taken by the New Philadelphia to be towed to and left at a certain place in New York harbor; but, owing to the unskilfulness with which the steamer was navigated, a collision occurred between the coal barge and a schooner lying at one of the docks, by which the barge was sunk.

Process was duly issued, and the New Philadelphia attached. The Camden and Amboy Railroad and Transportation Company intervened, and made claim to the vessel, as owners thereof. The proper stipulation being filed on the same day, the vessel was discharged, and the claimants put in an answer denying the material facts set forth in the libel.

The District Court, after hearing a great number of witnesses, dismissed the libel for the following reasons, given by BETTS, J.:

title: Steamer New Philadelphia


text: Talk:Steamer New Philadelphia

title: Talk:Steamer New Philadelphia


text:
Steamer New Philadelphia/Opinion of the Court

'The steam-tug New Philadelphia, employed in towing barges and vessels of various classes between New Brunswick and New York, through the Raritan river and across New York bay, had in towage the barge Owen Gorman, loaded with coal, to be taken from New Brunswick and landed at the foot of 26th street, on the East river. She had nine other vessels in the same tow, which were destined to different landing points on the North and East rivers, and also at docks and piers on the Brooklyn side. The Owen Gorman was to be left by the tug at Washington street, Brooklyn (Williamsburg.) In making the course round from the North river, the tug stopped and landed a barge at the Atlantic docks, Brooklyn shore, and in so doing the Owen Gorman was brought against a small sloop, moored at that dock. So soon as that barge was discharged the tow proceeded to Washington street, where within an hour the Owen Gorman was brought up to a pier by the tug, and was there cast off and left, the tug proceeding immediately after to her place of destination. After she was discharged and the tug was clear of her, and on her way to 26th street, the barge was found leaking rapidly, and during the effort made by those in charge of her to haul her into the slip and prevent her from sinking, she filled by water running through holes or breaks in her starboard side, and went down in deep water, and was afterwards raised, with considerable cost and loss to the libellant both in respect to vessel and cargo.

'This action charges the damages the owner incurred to the fault of the tug in causing the Owen Gorman to be brought into collision with the sloop at the Atlantic docks, at the time of landing a barge at that place in her transit round to Washington street. The injury was not discovered until she had been left at the latter place, and the men were endeavoring to haul her in.

'The testimony fastens no blame upon the tug in the manner the landing of the barge was effected at Washington street. The allegations of tort in the tug by the libel, and the evidence in the support of the charge, all rest upon the assumption that the wrongful act and collision committed by the tug consisted in bringing the Owen Gorman against the side of the sloop at the Atlantic dock; and if that charge is not supported, the libellant has no ground of action before the court.

'It is unnecessary to go into a detail of the particulars of that transaction or the representations of the various witnesses in respect to it, as, in my opinion, the evidence does not justify imputing to that cause the injury which the barge received, and which led to her sinking. Over twenty witnesses were examined and re-examined with great fullness as to the facts and circumstances attendant upon the transaction; and, in my judgment, the clear weight of proof is, that the damage to the barge which caused her sinking and all subsequent expenses was received after she left charge of the tug at Washington street, and that it does not come within the scope of the present complaint. A minute collation and review of this mass of evidence would be a profitless labor, as no legal principle or doubt is involved in its admissibility or import. It is solely a question as to which class of witnesses had the best means of knowing the facts, and under all the circumstances is most to be relied upon in their statements.

'My opinion is, that the claimants have succeeded in showing that the tug was not the culpable agent of the damages sustained by the libellant, and the libel must accordingly be dismissed with costs.'From this decision of the District Court an appeal was taken to the Circuit Court, where it was reversed, and a decree made that the libellant recover. It was referred to a commissioner, who reported the amount of the damages suffered by the libellant to be $3,159 34. To this report various exceptions were taken, some of which were sustained, and others overruled, so that the damages were reduced to $2,898 84, for which latter sum it was decreed the libellant should have execution. the claimants then took their appeal to this court.

Mr. Murray, for libellant, contended that the proper view of the facts had not been taken by the Circuit Court, and argued as matter of law that the decree of the District Court ought not to have been disturbed, because the decision of a court on a question of fact, like the verdict of a jury, should be affirmed, unless it be clearly against the evidence. The Grafton, (1 Blatchford C. C. R., 173; 3 Graham & Waterman on New Trials, 1213 and 1240.) The evidence introduced by the libellants, after the appeal to the Circuit Court, was merely cumulative, and did not authorize a conclusion contrary to that of the District Court.

The tug-boat in this case was not a common carrier, and was not liable for anything short of gross negligence. Wells vs. ''Steam Nav. Com., (2 Com., 204;) Caton vs. Rumney, (13 Wend., 387;) Alexander vs. Greene'', (3 Hill, 9;) Story on Bailments, § 496; Edwards on Bailments, 428, 573, 574.

Mr. Burrell, for libellant, conceded the rule to be that the decision of the court below, upon a question of fact, should be deemed conclusive, and that this court should not be required to review such decisions, and relied upon the authorities cited by the libellant's counsel. But this principle should prevent and restrain this court from interfering with the decree made in the Circuit Court, and will certainly furnish no justification for its reversal in order to make room for the reinstatement of the decree which the libellant obtained on only a part of the testimony in the District Court.

The owners of the steamboat having undertaken to tow the barge, and no special contract being proved, were bound to exercise all the care, skill, and diligence necessary for the discharge of their obligations. New World vs. King, (16 How., 474-5.)

In this case the damages to the tow were occasioned by negligence and want of ordinary skill, care, and prudence on the part of those who were intrusted with the navigation of the tug.

Mr. Justice WAYNE.

This is an appeal in admiralty from the Circuit Court of the United States for the southern district of New York.

It has been argued with minuteness and ability by the proctors of the parties, as well in respect to the allegations of the libel and answer, as to the incidents of its trials in the Circuit and District Courts. The case has had our best consideration.

The libel sets forth that Patrick Brady was the owner of the barge Owen Gorman, and that, on the 12th April, 1856, she left Richmond, in Pennsylvania, for Brooklyn, New York, under the command of Patrick Campbell, with a cargo of 207 10-25 tons of coal; that, on the 17th April, the barge and eleven other barges were towed from the Delaware and Raritan canal, at New Brunswick, by the steamer New Philadelphia, into the waters of the Hudson or North river. There she landed one of the barges, at the foot of Washington street, New York, and another of them at the foot of Hammersly street, and then entered the East river, with several of her fleet, steering and heading for the Atlantic dock, in Brooklyn, where she was to land another of the barges. That in doing so, the steamer ran across the tide, then running a strong ebb, and steered close to the dock, in such a manner that the Owen Gorman was swung and driven with great violence against the schooner (or sloop) Financier. That persons on board of the latter, seeing the steamer swinging in, and that she would be struck by one of her barges, threw out a wooden fender, to ward off the impending collision, which, having been forced from their hands, was forced and crushed into the Owen Gorman on her starboard side, just forward of midships, cutting in her planks, and making a hole, through which she was filled with water, and sunk, with her cargo.

It is alleged that the collision was caused by the negligence and want of care or skill of the master and crew of the steamer, and not from any fault of those persons who were on board of the Gorman. It is also alleged that, immediately after the sinking of the Gorman, the owners of the steamer were informed of it, and that a protest, in due form, had been served upon them.

The libellant then states the loss from the collision; that he had, at the request of the agent of the owners of the steamer, employed William J. Babcock, a wrecker, to raise her, the latter having done, upon different occasions, work of that kind for the company. That Babcock contracted to raise and put her afloat for $450-it being then expressly understood, between the agent and the libellant, that, if the hole which had caused the sinking of the barge should be found where the latter expected and said it was, the company were to be responsible for all damages done to the barge, and for the losses sustained from her having been sunk by the collision.

Babcock raised the barge sufficiently to have her taken to Red Hook Point, and there beached her upon the flats, so that the tide rose and fell in her, when it was ascertained that the hole was in the starboard side of the barge, a little forward of midships. Babcock then proceeded, without the knowledge of the libellant, to discharge the coal from the barge, had the same stored in the coal yard of the consignees of it, and then gave notice to the libellant that he had advertised the barge and the coal for sale, to pay his wrecker's lien upon them, which he claimed to have, in virtue of the wrecker's act of the State of New York.

The barge and coal were sold, the first being bought by Henry J. Vroom, for three hundred and fifty dollars; the coal was purchased by the consignees of it, at three dollars per ton. The sale was without the consent of the libellant, and when he was absent from New York. When he heard of the sale he came to New York, to protect his interest, and intending to pay Babcock for raising the barge, as the owners of the steamer had refused to do so. It was finally arranged, by his paying to Babcock $450, the sum which had been agreed upon; the further sum of $299 96 for unloading, carting, storing, and shovelling the coal; and the further sum of $236 12 to the consignees for the deterioration of it, which had been estimated by two referees, each party having chosen one of them.

The libellant then sets out, that the barge was so injured from the force and violence of the collision, and the pressure of the steamboat and inner barge, to which she was lashed when it occurred, that it became necessary to take her to the dry dock for repairs. That it was at a time when the barge's services were particularly valuable to him, and that, from her having been sunk, he had sustained damages for her repairs, for the loss of all her fixtures, and for the loss of time, and for the expenses of her master and crew, exceeding two thousand dollars, which the consignees of the New Philadelphia had refused to pay.

The allegations in the libel are direct, positive, leaving nothing to implication, and not exaggerated, either by inapt circumstances or coloring.

We will now place in juxtaposition with it the answer. Those pleadings will disclose the issues between the parties, and enable us to apply the evidence to them successively, or in the order of their affirmation.

The claimants admit that they are and were the owners of the New Philadelphia, when the barge Owen Gorman and ten other boats were taken by her to be towed from Brunswick, New Jersey, to be left at New York and Brooklyn, at different designated points in both; that they were ignorant then, as they are still, who were the owners of the Gorman, or of the number of tons of coal then on board of her. They deny that she was then a tight, strong, and staunch vessel, and charge that she was unfit for the transportation of her load for the passage she was to make. It is then averred, upon information and belief, that the landing of the steamer at the Atlantic dock, in Brooklyn, where the injury to the barge, as is described to have happened, was in this manner:

That the steamer, after having left six barges at their places on the North river, proceeded from it into the East river with the other barges in tow, to leave them at their places of destination; that the Gorman was in the first tier of boats on the outside, on the starboard side of the steamer as she approached the Atlantic dock 'from westwardly,' and headed up the East river, when the tide was about the first of the ebb; that one of the barges on the steamer's larboard was destined for that dock, and in the act of leaving her there; that the steamer came to with her fleet with her starboard side nearest the dock, and alongside of a sloop lying at the dock, which was a fit and suitable place to leave her, and that the steamer and her fleet were brought to alongside of the sloop with great care and gentleness. It is admitted that a fender had been put out by some person on board of the sloop to fend off the barge; but whether the fender had been forced and crushed into her they were ignorant, and deny. It is admitted that the barge sunk at the Washington pier, to which she had been towed by the steamer, within an hour after the collision had occurred at the Atlantic dock.

It is then alleged that the master and crew of the barge had allowed her to sink with her cargo, without making an effort to prevent it, and that notice had not been given to the master of the steamer of the barge's sinking condition, to enable him to make any attempt to do so. The claimants then deny that Babcock had been engaged by their agent to raise the barge, and that he had only recommended Babcock as a fit person to be employed for that purpose; and that if their agent had done otherwise, that it was not within the scope of those duties they had engaged him to do; that he could make no contract to bind them for any damage which the barge had sustained from the collision, or for any expense whatever growing out of her having been sunk from the causes set forth in the libel.

The damages and expenses are charged to have been largely increased by the negligence and inattention of the master of the barge. It is also charged, that she had been towed, under an agreement made with her master; that it was to be done at his and her owners' risk.

The issues, then, to which the evidence is to be applied, are substantially the state of the tide when the steamer, in entering the East river, was steered across it to land a barge at the Atlantic dock; next that the Gorman was not seaworthy for the carriage of her cargo, and that she was not a tight, staunch, and strong vessel. We dismiss these averments in the answer, by observing that the owner of the barge proved very satisfactorily that she had been well built with the best materials; had been thoroughly repaired the year before the collision, in respect to all the wear and tear of her five or six years' service after she was built; and that she was staunch and strong, and particularly water-tight, when she was approaching the Atlantic dock in tow of the steamer. Two witnesses say that they saw her pumps tried one hour before, and that she was dry. Their testimony is conclusive to establish the seaworthiness of the barge in every particular, from the time that she was lashed to the steamer at New Brunswick to be towed to Brooklyn, until after she had been collided with the sloop at the Atlantic dock.

The third issue is, whether or not she had been brought alongside of that vessel with care and gentleness, or with the force and violence of a collision, to cause the injury by which she had been sunk.

The fourth issue arises from the charge in the answer, that there had been a want of care in her master, in permitting her to sink with her cargo, after she had been landed at the Washington pier, without any effort to prevent it, and from not having informed the master of the steamer of the injury she had sustained, or that she was sinking, until an hour or more after she had sunk. Here, let it be remarked that we have the respondents' own appreciation of the time of the delay of which they complain in not having had notice of the injury to the Gorman, and that it was an hour or more after the occurrence. It supersedes the necessity of any further consideration of that charge, particularly as, when the steamer left the barge at the Washington pier, she immediately steamed off to drop another of her fleet at a distant point, without the slightest concern or inquiry of the consequences which the collision had produced.

Such are the issues to be considered, and the only correct way of doing it is by a minute citation of the testimony. Kelly, the witness, says he was on board the Gorman at the time of the collision. The barge was on the starboard side of the steamer next to Brooklyn, and she was the outside barge, one other barge being bateen her and the steamer. The steamer had come from the North river around Governor's island, around Buttermilk channel, and across it to Atlantic dock. The steamer was intending to go up East river, and was attempting to drop a barge at Atlantic dock. That barge was on larboard side of tow, but cannot specify her position. The steamer came in across, the tide running out a strong ebb, and, in the effort, the tug swung round and struck the Owen Gorman against the schooner, which was fast at the dock, with weight of the whole tow. Two men on schooner ran and threw a long stick or fender between tug and steamer. The force of the junction pressed the stick out of their hands, and raised it perpendicularly between the two vessels; blow and jar was very severe. Witness saw the stroke; was standing forward of midships' cleet, about three feet from where the fender struck, and as he saw it wrenched out of the men's hands, he started back to get out of the way. The barge was forward of place where the witness stood. The tug landed a barge, and then started up East river with the residue of her tow, including the Owen Gorman, to Washington street, a mile or more above, where she was landed nicely. Then found she was lowered in the water. He then went on her, and into her hold, where he found the water up to his knees. She was hauled into dock, and there she sunk in twenty minutes. Found that she was making water as soon as she was cast off from the tug. Afterwards found planks crushed in at place where the stick or fender struck her, about the width of two planks, and two or three feet long; the planks were broken. Nothing occurred between Atlantic dock and place of landing. Supposes the loading of coal prevented the water pressing in sooner. Tow was swung round at Atlantic dock by the tide. After landing boats at North river, asked master of the Gorman how she stood the service, and a few moments before collision. He said she was perfectly dry, and drew the pump in witness's presence, and it sucked perfectly dry. Had unloaded her four times before, and never found any water in her. She was a sound and good boat.

In the cross-interrogation of this witness, he qualifies nothing, adds nothing, and his testimony is not contradicted by any other witness in the case, but is confirmed by serveral. Daly, the second witness, says the tide was ebb and strong; blow was strong; did not feel the shock; saw men putting out fenders from the sloop; cannot describe it particularly; all done quickly; saw the collision standing on the deck of his boat. The tow, coming from North river, swung around and knocked against vessel at dock. Cannot say what caused the tug to swing round; supposed barge was injured when the blow was given. Daniel McCauly was in the barge, and in the cabin, when the blow was received; felt it; dishes were knocked out of his hand, and gave him a shock in his seat, but not severe enough to knock him off his seat. Patrick Campbell says, tide was a strong ebb; corroborates, in its particulars, the occasion of the collision; says it was the unskilful manner in which the steamer attempted to land the stern-boat on her larboard side; both she and her fleet were brought round in an unskilful and careless manner. Either the steamboat should have headed up the East river sooner than she did, and at a greater distance from the dock, and, in passing up, dropped the barge she intended to land, or else she should have headed for the dock until within a certain distance, and then heaved a line, dropped the barge, and passed on. The barge was struck on her starboard side, about midships, with great force, so as to break the planks on that side, making two holes in the third plank above the bilge plank. After the collision, steamer continued on her way with the barge as far as Washington street. The barge met with no other injury between the time of the collision and her sinking. The facts stated by the witness have been given, with his impression of the cause and consequences of them, when they occurred. John Campbell says the tide was ebb and running strong. The steamboat should have made allowance for the tide, which was running hard, which was not done. Schweimer says the tide was ebb and running strong. William Murtagh says, I met the captain of the steamer, and asked him how he came to sink the Owen Gorman. He said he never landed a boat so nicely. I asked him if he did not swing her against a schooner. He said he was landing one of his boats in tow at the Atlantic dock, and it being a strong ebb tide, his tow swung round, and, the Owen Gorman being the last boat to the 'spur' boat, swung in against a schooner lying next to the wharf, and that one of the hands on board of the schooner held a wooden fender down, and it was probable schooner and fender striking between two timbers made a hole in her, and caused her to sink. An unsuccessful attempt was made to weaken the force of Murtagh's testimony, but not to discredit his, by calling as a witness Edward Duffey, who was with him at the time the conversation took place between Murtagh and the captain of the steamer. In Duffey's statement of it, he does not introduce the words, 'and it being a strong ebb, his tow was swung.' His report of it is, the captain said he had come to Brooklyn to land one of his boats, and the swinging around, and the fact that the Owean Gorman was the boat next the spur-boat, on the outside boat of the tow, operated so that when the Owen Gorman struck a schooner lying at the dock, that if she had got a hole in her that caused her to sink, it must have been caused by the collision consequent on the tow swinging against the schooner. Duffey was introduced as a witness to relieve Captain Holman from the imputation of having misstated, in his conversation with Murtagh, the time of tide when the collision took place differently from what he said it was in his evidence. But what the captain stated was this: 'Went north of Governor's island and across Buttermilk channel, three or four hundred yards below the end of the island, east face, then hauled up against the ebb tide, and landed barge. He considered it a good landing. Thinks it was about slack tide in North river; ran up the docks two or three hundred yards, and alongside of the vessel, and stopped tug, and then left the wheel, leaving pilot there, to attend to landing a barge from the larboard side; and after landing her, continued up to Wall street, Brooklyn. Returned to the wheel again; did not see the fender put down; it was an easy landing, with a little drift play upon the boat. Stopped engine about two hundred feet from the vessel at the wharf, and headway of tug stopped three or four feet from her, when witness left the wheel; there was no headway at all on tow at the time of collision; headway of tow was a little in towards the vessel, and that caused her to come into collision; it was that sheer that brought her against the vessel. Thinks she was a sloop, about thirty feet long, and higher than the barge; never safe to put a wooden fender between vessels; is always liable to cause damage, because these tow-boats are weak, and fenders are apt to break them in.' We have been particular in citing Captain Holman's testimony in his own words. Taken in all its connexion, it serves to establish, that the cause of the collision was owing to his not having made allowance of distance enough between the barge and the sloop, when he was approaching her, to prevent that sheer which brought the barge into collision with her. He says, 'headway of tow was steered a little in towards, and that caused her to come into collision.' His having said that there was no headway at all on tow at the time of collision, does not alter the fact of its occurrence-from his not having properly estimated his boats' inward movement towards the sloop, when he was steering 'a little towards her,' and so near to her, that the collision was caused by a sheer of the steamer. Sheer, in nautical meaning, is a deviation from the line of the course in which a vessel should be steered, and though it may occur from causes unpreventable by the most skilful seamanship, it more frequently happens from an unsteady helmsman; and the latter was the fact in this instance, probably produced by the person then at the helm not being watchful enough of the state of the tide when advancing to the Atlantic dock to land a barge. We need not cite more of the testimony to establish it to be a fact, that, when the collision happened, the tide was running strong ebb, and had its agency in producing the collision.

The attempt to account for the sinking of the barge by her having been injured by iron spikes when she was left at her place of destination, is most unsatisfactory. Babcock's testimony in that particular, both as to his suggestions and opinions, is altogether conjectural. There is not even a possibility of its being correct, unless the testimony of every other witness in the case shall be considered mistaken and untrue. Babcock did not mean to say anything untrue; but he started an idea contrary to all the probabilities of the incident of which he was speaking, without a single fact to support it. We have not allowed ourselves to make any comparison or contrast between the witnesses in this case, either as to truthfulness or intelligence, or difference of condition. We do not think that the matters of which they spoke were above their comprehension, because every interrogation was brother-german to the occupation of all of them. They were all boatmen, very much of the same intelligence and character, and were employed by the parties to the suit to do their business, with an expectation if, in the navigation of the tug and her fleet, anything should occur leading to litigation, that they would have to resort to them to tell how it had happened. Such considerations should be kept in mind, in our judgments on such cases, and it should not be presumed, either in argument or judgment, that such classes of men have not a sense of truth fully up to their perception of moral obligation in its bearing upon those who do, from necessity, the rougher out-door work of life.

We have not been unmindful of the charge in the answer of the respondents, that the master of the barge had been careless in not making some effort to prevent her from sinking, and that the injury to her and to her cargo had been increased by the master and owner's negligence. No testimony of either can be found in the record. As to the damages and expenses accruing from repairs and the deterioration of the cargo, they were properly made the subject of a reference to a master. His report appears to have been done judiciously, and with the accustomed regularity of such a proceeding. The objection that he had excluded a witness, who was offered by the counsel of the respondents, we cannot consider her, because the proper course has not been taken in respect to it. There should have been a written statement upon oath as to the particulars which the witness was offered to prove, that the court might have compared it with what had been already proved by the other witnesses of the respondents, to enable the court to determine whether it was independent or only cumulative proof.

As to the other exceptions to the sum reported by the referee, they were fully considered by the circuit judge who tried the appeal. They were rightly passed upon by him, and this court particularly instructs me to say, notwithstanding that the exceptions were properly taken and argued in the Circuit Court, that the subsequent admission of the report, in the aggregate, by the counsel, even though that was only with the intention to give this court jurisdiction, shall not be reduced here by denying it in detail for the purpose of taking it away.

Our conclusions in this case are, that the ebb tide was running strong when the steamer crossed it is going from the North into the East river, and that in making the Atlantic dock allowances were not made for the strength of the tide, so as to reach it with proper care and skill, and that the collision and sinking of the Owen Gorman were the results of her having been brought, by the steamer's fault, into collision with the sloop and the fender which was put out to ward off an impending blow, and the heavy pressure upon her by the steamer and the loaded barges which she had at that moment in tow. That, putting out the fender for such a purpose was no fault upon the part of the sloop, then lying fast at the dock; and, if there was any fault in doing so from the kind of fender which had been used, the rule of law is, that when a third party has sustained an injury to his property from the co-operating consequences of two causes, though the persons producing them may not be in intentional concert to occasion such a result, the injured person is entitled to compensation for his loss from either one or both of them, according to the circumstances of the incident, and particularly so from the one of the two who had undertaken to convey the property with care and skill to a place of destination, and there shall have been, in doing so, a deficiency in either.

The testimony in the case given by the libellant shows that the Owen Gorman was tight, staunch, and strong at the time of the collision at the Atlantic dock; that, from the time of its happening and of the sinking of the barge did not exceed one hour, and that she sank in twenty minutes after she had been cast off by the steamer at her place of destination, and that there had been no collision between the barge and anything else while being towed to it by the steamer, nor any at that place, to justify a conclusion that the injury sustained by the barge had been occasioned there or anywhere else than at the Atlantic dock, in Brooklyn, and in the manner as it has been described by the libellant.

Decree of the Circuit Court affirmed with costs.


text: Talk:Steamer New Philadelphia/Opinion of the Court


text:
Clark v. Hackett

This was an appeal from the Circuit Court of the United States for the district of New Hampshire, brought up, filed and docketed in this court to December term, 1859. On the 3d of January, 1862, the cause being No. 67 on the docket of the present term,

Mr. Black, of Pennsylvania, for appellant, suggested diimnution of the record, and moved for a certiorari on affidavits, which accounted for the delay.

The Appellee (a counsellor of this court) appeared in propriapersona, and resisted the motion on the ground that it was too late: this was the third term.

THE COURT awarded the certiorari; but added, that if the cause should be reached before a return, the certiorari would not be regarded as a reason for continuance.

The cause was afterwards reached in its regular order, and the argument was directed to proceed.

Mr. Hackett argued it for himself.

No counsel appeared for appellant.

Mr. Justice NELSON.

title: Clark v. Hackett


text: Talk:Clark v. Hackett

title: Talk:Clark v. Hackett


text:
Clark v. Hackett/Opinion of the Court

This bill was filed by the complainant, Clark, against Hackett, the defendant, to set aside a decree of the Circuit Court of the United States of the District of Columbia, and also of this court affirming that decree, on the ground that they were procured by the fraud of the parties, and of the complainant's solicitor and counsel. The suit in the Circuit Court of the District of Columbia was instituted by Benjamin C. Clark, a judgment creditor of the present complainant, for himself and other creditors, claiming a fund in the hands of the treasury of the United States, which had been awarded to the debtor by the commissioners ander the treaty with the republic of Mexico. After the filing of this bill, the present respondent, Hackett, who was the assignee in bankruptcy of the present complainant, filed a bill, praying leave to come in under the creditor's bill, setting up a title to the whole of the fund in question, for the purpose of distribution among the creditors of the bankrupt. The present complainant, the bankrupt, appeared and answered these bills, and afterwards the case was heard on the pleadings and proofs, and a decree rendered by the court in favor of the assignee. The court also directed the fund to be remitted to the District Court of the United States for the district of New Hampshire, in which the bankrupt proceedings had taken place, for adistribution among the creditors by that court, as a part of the assets of the bankrupt. An appeal was taken from the decree by the respondent to this court, and which was affirmed, as will appear by the report of the case in 17 How., 315, and the cause remanded to the Circuit Court. The fund was afterwards, in pursuance of the decree below, remitted to the District Court of New Hampshire. While it remained in that court, and before distribution among the creditors, the complainant, the bankrupt, filed the present bill for the purpose of setting aside the decree of the Circuit Court of this District, and of the Supreme Court affirming it, on the allegations of fraud committed by the parties, including his own solicitor and counsel, in procuring these decrees, and claiming that he was entitled to the fund, and that payment should be made to him accordingly.

The court below, after hearing the case on the pleadings and proofs, which were voluminous, held, that the evidence entirely failed to establish the allegations of fraud, and dismissed the bill. It is now here on appeal. The case is a very plain one; and we need only say, that the court, upon the pleadings and proofs, could come to no other conclusion.

Decree of the Circuit Court affirmed.

title: Clark v. Hackett/Opinion of the Court


text: Talk:Clark v. Hackett/Opinion of the Court


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Page:Dictionary of National Biography volume 58.djvu/250

 Earls Colne. He had made his will on 10 April 1509 (Testamenta Vetusta, ed. Nicolas, p. 526). Oxford was twice married. His first wife (about 1465) was Margaret, sixth daughter of Richard Neville, earl of Salisbury [q. v.] She was living after 1488 (Paston Letters, iii. 398), and was buried at Colne. His second wife was Elizabeth, widow of William, second viscount Beaumont (d. 19 Dec. 1507), Oxford's old companion on St. Michael's Mount, who, losing his reason in 1487, spent his last years under his friend's care at Wivenhoe. She made her will on 30 May 1537, and, dying on 26 June in the same year, was buried with her first husband at Wivenhoe (Testamenta Vetusta, p. 674). By her he had no issue, and his only child by his first wife, John de Vere, died young, a prisoner in the Tower during his father's exile. Oxford's dignities passed to his nephew John, fourteenth earl (1499?–1526), son of his brother, Sir George Vere [see next article].

[Rotuli Parliamentorum; Rymer's Fœdera, original edit.; Ordinances of the Privy Council, ed. Nicolas; Stevenson's Wars of the English in France, with William Worcester's Chronicle, and Wavrin, in the Rolls Series; Fabyan's and Grafton's Chronicles, ed. Ellis, 1811–12; Chronicles of the White Rose, 1845; Warkworth's Chronicle, the Arrivall of Edward IV, and the Rutland Papers, published by the Camden Society; Itinerary of William Worcester, ed. Nasmyth; Polydore Vergil, ed. 1546; Bacon's Henry VII, ed. 1622; Leland's Collectanea, ed. 1770; Excerpta Historica, ed. Nicolas, 1831; Paston Letters, ed. Gairdner; Dugdale's Baronage; G. E. C[okayne]'s Complete Peerage; Doyle's Official Baronage; Beltz's Memorials of the Order of the Garter; Ramsay's Hist. of Lancaster and York; Gairdner's History of Richard III, 3rd edit.; Busch's History of Henry VII (English transl.). The De Vere, earl of Oxford, and his son Arthur, who are prominent characters in Sir Walter Scott's ‘Anne of Geierstein,’ are not historical personages.]

VERE, JOHN, sixteenth (1512?–1562), born about 1512, was eldest son of John de Vere, fifteenth earl of Oxford (1490?–1540), by his wife Elizabeth, daughter of Sir Edward (or John) Trussell of Cublesdon, Staffordshire. His father (a cousin of John de Vere, fourteenth earl, often called ‘Little John of Campes,’ 1499?–1526), was esquire of the body to Henry VIII in 1510; was knighted by the king on 25 Feb. 1513 at the Battle of the Spurs; was created K.G. on 21 Oct. 1527; took a prominent part, as a friend of the king, in the measures against Wolsey and Catherine of Aragon; bore the crown at the coronation of Anne Boleyn, and acted as a commissioner at her trial. He was the first protestant earl of Oxford, and was popularly known as ‘the good earl.’ He died at his manor of Earls Colne on 21 March 1540, and was buried at Castle Hedingham on 12 April. An altar-tomb in black marble is adorned with effigies of himself and his countess in an attitude of prayer, surrounded by their four sons and four daughters. Of his younger sons, Aubrey was great-grandfather of Aubrey de Vere, twentieth earl [q. v.], while Geoffrey was father of Sir Francis Vere [q. v.] and of Sir Horace Vere [q. v.]

John, the eldest son, received in 1541 livery of lands which descended to him through his mother. In 1544 he served with the expedition to Boulogne, holding the rank of captain in the rearguard of the king's army. As hereditary great chamberlain he was frequently at court, but played no prominent part in politics. He was knighted by Edward VI at his coronation, 20 Feb. 1547, and at the end of the reign, on 16 June 1553, signed the letters patent by which Lady Jane Grey was nominated the king's successor. But on 19 July, shortly after Edward VI's death, he declared for Queen Mary, and on 3 Sept. was admitted to her privy council. He bore the sword before Mary on her progress through London on 30 Sept. Subsequently the queen's faith in his loyalty was shaken. His zeal for catholicism was doubted, and in 1556 there were rumours that he was implicated in the plot of Sir Henry Dudley and Richard Uvedale [q. v.] Elizabeth, on her accession, showed him much favour, and in September 1559 he was appointed, with Lord Robert Dudley, to attend the king of Sweden's second son, John, duke of Friesland, when the duke came to England to offer Elizabeth marriage in behalf of his elder brother, Prince Eric. He met the duke on his landing at Harwich, and showed him ‘great sport’ in the valley of the Stour. From 14 to 19 Aug. 1561 he entertained Queen Elizabeth at his residence of Castle Hedingham. In Essex, where his estates lay, he held through life many posts of honour. He was appointed chief commissioner of array on 7 May 1545, joint lord lieutenant on 25 Sept. 1550 and 24 May 1553, joint lord justice and lieutenant on 4 May 1551 and 7 May 1552, justice of the peace on 18 Feb. 1554, and lord lieutenant on 17 Jan. 1557–8 and 1 May 1559. He was known in the county as a good landlord and a keen sportsman. He died on 3 Aug. 1562, and was buried in the church of Castle Hedingham.

He was twice married. His first wife, whom he married on 3 July 1536, was Lady


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Hager v. Homson

John D. Hager brought his bill in the Circuit Court for the district of New Jersey against John R. Thomson, Edwin A. Stevens, James Neilson, and the said John R. Thomson, Edwin A. Stevens, James Neilson, Robert F. Stockton and Richard Stockton, trustees of the New Brunswick Steamboat and Canal Transportation Company. The material averments of the bill are substantially as follows:

The complainant was the owner of seven and two-thirds shares of the capital stock of the New Brunswick Steamboat and Canal Transportation Company, a corporation of the State of New Jersey, created by law in the year 1831; and as a stockholder in the corporation he filed his bill in the Court of Chancery of the State of New Jersey against Thomson, Stevens and Neilson, three of the present defendants, charging them with divers breaches of trust and frauds in the management of the company's business, and praying for an account and other relief. The bill was answered and a replication filed. But before all the witnesses were examined the defendants proposed to compromise, and it was agreed through R. F. Stockton, who was the agent of the company and of the defendants, that the suit should be settled. At that time the defendant was the owner not only of the seven and two-thirds shares of stock which he had had from the beginning of the company's existence, but of one third of four other shares which he had purchased after the commencement of the suit. The company, from the time of its organization in 1831, had been engaged in transporting passengers and freight between New Brunswick and New York, and in the year 1835 carried goods, coal, &c., between New York and Philadelphia by way of the Camden and Amboy railroad and the Delaware and Raritan canal. Abraham S. Nelson, of New Brunswick, was the treasurer, but kept no account of any business except that which was done by the company between New Brunswick and New York. The defendants, after the bill was filed in the Chancery Court of New Jersey, presented an abstract account of the business of the company, which they represented as containing a true and just account of all the business of the company, its receipts and expenditures. The complainant with his counsel attended at the office of the treasurer, Mr. Nelson, at New Brunswick, and examined certain books of account for about six hours without being able to ascertain the correctness of the abstract. The original books of entry were not present. The company have a set of books kept in Philadelphia by one Gatzner and others, and another in New York, kept by one Anderson, from which, and from the manifests, way-bills, receipts and vouchers, the monthly and other settlements were made out and carried to the books kept by Gatzner in Philadelphia. No books except those of Anderson were submitted to the complainant, and they were false, fraudulent, and intended to deceive the stockholders. R. F. Stockton, on the 2d of September, 1847, agreed with the complainant that the company and the defendants in the Chancery suit should purchase the complainant's stock for such price as, upon a fair examination of the assets, it should be found that the stock was worth, and on the 13th of January, 1848, Mr. Stockton met the complainant at Princeton Basin to carry out the agreement of compromise, Anderson and Gatzner being present. The partial examination by the complainant of Anderson's books, and the assurances of Stockton, Anderson, and Gatzner, induced the complainant to believe that the abstract from the books of Anderson was correct, and contained a fair statement and just and honest account of the receipts and disbursements of the company. But the books of the company kept in Philadelphia were not produced, nor did not complainant know at that time that there were any such books, or in what manner the books kept by Anderson were made up. He assumed that the abstract was right and did not question its correctness, because he believed at the time that he was dealing with men of integrity. Acting upon this belief, he agreed that the balance of profits (forty-two thousand one hundred and fifty-six dollars and sixty cents) was the correct balance. A valuation was then agreed upon by the complainant and Stockton of the property, real and personal, belonging to the corporation, which being added to the net earnings, made the assets about two hundred and eighty-nine thousand dollars. The complainant's proportion or part of the last mentioned sum was paid to him, and he transferred his stock to the company. After this compromise was made the complainant discovered that the abstract account upon which he had based his agreement was false and fraudulent in a great many particulars. The bill set forth specifically the false credits and fraudulent charges, and prays that a just and accurate account be taken of the company's business, profits and property, and the defendants decreed to pay him such additional sum as it shall be ascertained that his stock was worth.

The answer denies the allegation that there was any important error in the accounts or abstracts of accounts or books submitted to the complainant, or that any assurance was falsely given by the defendants of their correctness, or that there was any fraudulent or deceptive means used to procure the plaintiff's assent to the compromise.

The statements in the answer do not materially vary from that contained in the bill concerning the terms and conditions upon which the purchase of the complainant's stock was made by R. F. Stockton for the company. The contract was that the complainant should be paid such price as, upon a fair examination into the condition of the company, it might be found to be worth.

A large number of witnesses were called-more than twenty; but their testimony needs not to be stated here, since the effect of it upon the case can be seen in the opinion of Mr. Justice Clifford.

title: Hager v. Homson


text: Talk:Hager v. Homson

title: Talk:Hager v. Homson