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Corbett v. Nutt/Opinion of the Court

Several questions were raised and elaborately examined in this case in the courts of Virginia, both in the lower courts and in the Court of Appeals of the State, which are not open for consideration here. The only questions which we can consider, under the twenty-fifth section of the Judiciary Act, arise upon the ruling of the court admitting the certificate of redemption issued to McPherson, and the refusal to give certain instructions prayed by the defendant.

The seventh section of the act of June 7th, 1862, for the collection of direct taxes in insurrectionary districts, after directing the advertisement and sale of lands, upon which taxes due the United States remained unpaid, after a designated period, contains two clauses relating to the redemption of the land from such sale. The first clause provides that the owner of the land, or any loyal person of the United States having any valid lieu upon or interest in the land, may at any time, within sixty days after the sale, appear before the board of tax commissioners, in proper person, and redeem the land from sale upon paying the amount of the tax and penalty, with the interest and expenses prescribed, and taking an oath, if a citizen, to support the Constitution of the United States. The second clause provides that if the owner of the land sold be a minor, a non-resident alien, a loyal citizen beyond the seas, a person of unsound mind, or under a legal disability, the guardian, trustee, or other person having charge of the person or estate of such owner, may, in the same manner and with like effect, redeem the land at any time within two years after the sale.

By these provisions persons entitled to make redemption are divided into two classes. The first class embraces persons who are residents in the country, and are not laboring under any legal disability. They may well be supposed to have had personal knowledge of the assessment of the taxes and of the sale made, and for this reason, it may be inferred, their privilege of redemption was limited by Congress within the narrow period prescribed.

The second class embraces loyal citizens beyond the seas, non-resident aliens, and persons laboring under some legal disability, to whom the reason for the limitation prescribed to the first class was not applicable. To those absent from the country, personal knowledge, either of the assessment or sale, could not be justly imputed; and those under disability, if possessed of the knowledge, might reasonably expect that the matter would receive the attention of the parties intrusted with the charge of the property. Congress, therefore, gave to the persons of this class a much more extended period within which to exercise the privilege of redemption, and allowed the redemption to be made by 'the guardian, trustee, or other person having charge of the person or estate' of the owner. The position of the persons composing this class, absent from the country, or under legal disability, was such that their property would, in the ordinary course of things, be in ghe 'charge' of others, but, lest the latter might, from any cause, neglect the interests of the owners, the period of redemption was prolonged to two years. It was for the benfit of the owners of the property, that they might not suffer from the remissness or faithlessness of their guardians, trustees, or agents, that the privilege was thus extended, and to secure that benefit the act should be liberally construed. It is the general rule of courts to give to statutes authorizing redemption from tax sales a construction favorable to owners, particularly when they provide, as in the present case, full indemnity to the purchaser, and impose a penalty upon the delinquent.

In this case it appears to be conceded that the Supreme Court of the District of Columbia exceeded its authority in appointing McPherson trustee, in place of Nutt, of the land in Virginia. That court could not by the mere force of its decree transfer the title to land lying without its jurisdiction from the party in whom it was vested by the will of Mrs. Hunter. A court of equity acting upon the person of a defendant may control the disposition of real property belonging to him situated in another jurisdiction, and even in a foreign country. It may decree a conveyance and enforce its execution by process against the defendant, but neither its decree nor any conveyance under it, except by the party in whom the title is vested, is of any efficacy beyond the jurisdiction of the court. This is familiar law, and was declared by this court in Watkins v. Holman, the court observing that 'no principle was better established than that the disposition of real estate, whether by deed, descent, or by any other mode, must be governed by the law of the state where the land is situated.'

McPherson was not, therefore, legally trustee of the property in Virginia, and if his right to interpose for the redemption depended upon the possession of the legal title, his action might be treated as that of a stranger to the land. But the absolute possession of such title by him was not essential under the circumstances. He regarded himself as trustee of the property. The cestuis que trust so regarded him. He professedly acted in their behalf and for their interests. He was apparently, from the decree of the Supreme Court of the District, clothed with the legal title. The commissioners treated him as a person entitled to make the redemption. They were not obliged to inquire into the validity of the decree. They were not expected to enter upon investigations of title any further than was necessary to prevent the impertinent intermeddling of strangers. It was sufficient for the commissioners to allow the redemption, when they found that the party offering to redeem furnished prim a facie evidence of possessing the character which entitled him under the statute to make the redemption.

The trustee named in the will not having accepted the trust reposed in him when the decree of the Supreme Court of the District was made, it is reasonable to suppose from the subsequent conduct of McPherson that he immediately took actual charge of the estate for the cestuis que trust, and was in such charge when the redemption was made. If such were the case, and we think there is little doubt of it, McPherson was by the very words of the statute authorized, without regard to the validity of the decree, as a person 'having charge' of the estate of the owners, who were laboring under disability by reason of their coverture, to make the redemption; although from the ineffectual parol disclaimer of his trust by Nutt, the legal title may have remained in the latter, which required the present action for the recovery of the property to be brought in his name.

It is further objected that, assuming that McPherson was entitled to redeem, the redemption was ineffectual because he did not take the oath required by the seventh section of the amendatory act of March 3d, 1865, which declares 'that no owner shall be entitled to redeem unless, in addition to the oath prescribed by existing laws, he shall swear that he has not taken part with the insurgents in the present rebellion, or any way given them aid or comfort, and shall satisfy the board of commissioners that the said oath is true.'

But the objection is untenable. McPherson did not redeem as owner, but as trustee of the owners, or as a person 'having charge' of their property. The act of 1862 distinguishes between owners appearing in their proper persons and redeeming, and owners beyond the seas or laboring under some legal disability and redeeming through trustees, guardians, or persons having charge of the property. It requires both of the owners redeeming in person, and of the trustees, guardians, and agents redeeming for others, an oath to support the Constitution of the United States. It specifies the taking of the oath as one of the terms on which the redemption can be made by owners and loyal persons having a lien upon or interest in the property sold, when appearing in person before the commissioners. And it subsequently authorizes a redemption by trustees, guardians, and parties acting for others, 'in the manner above provided;' that is, by making the like payments and taking a similar oath. But the additional oath imposed by the act of 1865 is, in our judgment, required only of owners seeking in person to redeem. It declares that 'no owner shall be entitled to redeem' unless he take the additional oath. If the requirement extended also to owners beyond the seas or laboring under legal disability, it could not in many cases be complied with, and the beneficial object of the act, which was to secure to them the right of redemption, would be defeated.

We have not overlooked the fact that, in the present case, the certificate of redemption states that the additional oath was taken by the owners. This circumstance is not entitled to weight because the owners do not themselves make the redemption; and if they could be themselves considered as redemptions, they failed to take the oath to support the Constitution required by the act of 1862.

We proceed to consider the prayers for instructions presented by the defendant and refused by the court. By the first of these prayers the court was requested to declare, in effect, that the voluntary residence of the testatrix within the Confederate lines incapacitated her from making a last will and testament; and the resignation by the plaintiff of an office under the United States, and acceptance of an office under the Confederate government incapacitated him from acting as trustee under her will, and taking the devise in that capacity.

The object of the instruction prayed, says the defendant in his petition to the Court of Appeals of Virginia, was to raise the question as to the effect and meaning of the sixth section of the act of Congress, passed on the 17th of July, 1862, entitled 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.'

The previous section of the act provides that, 'to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits, and effects of the persons' thereinafter named, 'and to apply and use the same, and the proceeds thereof, for the support of the army of the United States.'

The section then enumerates six classes of persons whose property is thus made subject to seizure. The fourth class embraces persons 'who, having held an office of honor, trust, or profit under the United States, shall thereafter hold office in the so-called Confederate States.' The section concludes by declaring that 'all sales, transfers, or conveyances of any such property shall be null and void.'

The sixth section provides that if any person within any State or Territory of the United States, other than those named in the previous section, 'being engaged in armed rebellion against the United States, or aiding or abetting such rebellion, shall not, within sixty days after public warning and proclamation duly given and made by the President of the United States, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States, all the estate and property, moneys, stocks, and credits of such person shall be liable to seizure as aforesaid, and it shall be the duty of the President to seize and use them as aforesaid, or the proceeds thereof.

'And all sales, transfers, or conveyances of any such property, after the expiration of the said sixty days from the date of such warning and proclamation, shall be null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section.'

The seventh section of the act directs the proceedings to be instituted for the condemniation and sale of the property seized.

If the devise of Mrs. Hunter can be brought within the language of this last section, it must be because a devise is embraced within the terms 'sales, transfers, and conveyances;' and because her 'aiding and abetting' the rebellion, and her refusal to return to her allegiance to the United States, are legitimate and necessary inferences from her voluntary and continued residence within the Confederate lines, for there is no direct evidence on either of these latter points, nor any evidence tending to establish either of them except such voluntary residence. Assuming, however, that a devise is within the 'sales, transfers, and conveyances' invalidated by the act, and that Mrs. Hunter is within the category of persons for whom the warning and proclamation of the President were intended, we are of the opinion that the invalidity declared is limited and not absolute; that it is only as against the United States that the 'sales, transfers, and conveyances' of property liable to seizure are null and void; and that they are not void as between private persons, or against any other party than the United States.

The object of the provisions cited is manifest. It is declared, in express terms, to insure the speedy termination of the existing rebellion. The confiscation of the property of persons engaged in the rebellion, and the appropriation of it, or its proceeds, to the support of the army of the United States, were supposed to have a tendency to advance that object. The seizure of the property of particularly designated classes, and of others engaged in the rebellion, or aiding and abetting it, who should not heed the public warning and proclamation of the President, was therefore directed, as also the institution of proceedings required in the courts of the United States for its condemnation and sale.

It was to prevent these provisions from being evaded by the parties whose property was liable to seizure that 'sales, transfers, and conveyances' of the property were declared invalid. They were null and void as against the belligerent or sovereign right of the United States to appropriate and use the property for the purpose designated, but in no other respect, and not as against any other party. Neither the object sought, nor the language of the act, requires any greater extension of the terms used. The United States were the only party who could institute the proceedings for condemnation; the offence for which such condemnation was decreed was against the United States, and the property condemned, or its proceeds, went to their sole use. They alone could, therefore, be affected by the sales.

Any other construction would impute to the United States a severity in their legislation entirely foreign to their history. No people can exist without exchanging commodities. There must be buying and selling and exchanging in every community, or the greater part of its inhabitants would have neither food nor raiment. And yet the argument of the defendant, if good for anything, goes to this extent, that by the act of Congress 'all sales, transfers, and conveyances' of property of the vast numbers engaged in the late rebellion against the United States, constituting the great majority of many towns, and cities, and even of several states, were utterly null and void; that even the commonest transactions of exchange in the daily life of these people were tainted with invalidity. It is difficult to conceive the misery which would follow from a legislative decree of this wide-sweeping character in any community, where its execution was conceived to be possible, or confidence was reposed in its validity.

We do not notice that part of the instruction prayed which relates to the status of the plaintiff as an office-holder under the United States just previous to the commencement of the war, and subsequently taking office under the Confederate government, as it was not his property, the sale of which is assailed. If he was incapable of taking the devise, it was not from his participation in the rebellion, but because the testatrix was incapable of passing her property by will under the act of Congress, a position which we have already shown to be untenable.

The second, and the only other prayer for instruction presented by the defendant, and refused by the court, which we can take notice of, is this: 'That to enable the plaintiff to recover he must show that the certificate of redemption was forwarded to the Secretary of the Treasury, and the defendant repaid his purchase-money by a draft drawn or the Treasury of the United States.' This prayer was based upon a misapprehension of the seventh section of the act of Congress of March 3d, 1865, which provides that when a redemption is made the board of tax commissioners shall certify the fact to the Secretary of the Treasury, and the secretary shall repay the purchaser, by draft on the treasury, the principal and interest of the purchase-money; and that the purchaser shall deliver possession to the owner redeeming. These provisions only prescribe the duty both of the secretary and purchaser when the redemption is made, but they do not make the performance of the duty of the purchaser dependent upon the previous performance of the duty resting on the secretary. The act was intended for the benefit of the purchaser, to enable him to obtain the repayment of the purchase-money and interest thereon; but the validity of the redemption does not depend upon such repayment. That is a matter between the purchaser and the secretary, with which the owner or redemptioner has no concern.

We find no error in the record, and the judgment of the Supreme Court of Appeals of Virginia must be, therefore,

AFFIRMED.

title: Corbett v. Nutt/Opinion of the Court


text: Talk:Corbett v. Nutt/Opinion of the Court

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


text:
Hannauer v. Woodruff

ON a certificate of division in opinion between the judges of the Circuit Court for the Eastern District of Arkansas.

The case was thus:

Woodruff made and delivered to Hannauer, at Memphis, Tennessee, on the 22d of December, 1861, a promissory note, dated that day, for $3099, with interest.

The only consideration of this note was certain bonds issued by an ordinance of the convention which attempted to carry the State of Arkansas out of the Federal Union, by what is called the secession ordinance.

These bonds were issued for the purpose of supporting the war levied by the insurrectionary bodies then controlling the State of Arkansas against the Federal government, and were styled 'War Bonds' on their face, and the purpose of their issue was well known to both parties to the note.

The bonds had at the time of the transaction a value not much below their par value on their face, say ten per cent., at Memphis and in Arkansas.

The war bonds received by Woodruff were not used, or intended to be used, by him in support of the war aforesaid.

On these facts two questions of law arose on which the judges of the circuit were divided in opinion, to wit:

1st. Was the consideration of the note void on the ground of public policy, so that no action could be sustained on it in the Federal courts?

2d. If the bonds were a sufficient consideration to sustain the action, what was the measure of damages?

The case was submitted on a brief of Mr. Garland, for the plaintiff, Hannauer; no counsel appearing contra.

Mr. Justice NELSON announced the judgment of this court, to the effect, that it being equally divided in opinion upon the questions, the case would be remitted to the court below for the purpose of enabling that court to take such action therein as it might be advised; this direction being in conformity, the learned justice observed, with the opinion of the court in Silliman v. The Hudson River Bridge Company.

title: Hannauer v. Woodruff


text: Talk:Hannauer v. Woodruff

title: Talk:Hannauer v. Woodruff


text:
Hannauer v. Woodruff/Opinion of the Court

ORDER ACCORDINGLY.


text: Talk:Hannauer v. Woodruff/Opinion of the Court


text:
In Re Paschal

THESE were two motions on George W. Paschal, an attorney and counsellor of this court, and as such lately representing the State of Texas in suits which it had here. The first motion being in the case of that State against White, Chiles and others (No. 4 on the original docket), already largely reported; the second, in the case of the same complainant against Peabody & Co. (No. 6 on that same docket), not yet in any way adjudged.

In the first of the cases the motion was for an order on Paschal to pay to the clerk of this court, for the benefit of the State of Texas, the sum of $47,325 in gold, alleged to have been received by him under the decree in the first of the two cases above mentioned. In the other (the suit against Peabody & Co.), that the name of the paid Paschal be stricken from the docket as counsel for the complainant, and that he be forbidden to interfere with the case. Rules to show cause having been granted, with leave to either party to file affidavits, Paschal, at the return of the rules, answered, filing a statement under oath by way of cause why the motions should not be granted.

This answer, in the first of the two cases, set forth the history of the litigation instituted for the recovery of the Texas indemnity bonds and the part taken by him therein, both in the two cases in which these motions are made and in other cases and proceedings. A portion of this history is published in the report of Texas v. White, Chiles, et al., and a portion in the case of Texas v. Hardenberg.

The answer admitted that the respondent had received the sum alleged, viz., $47,325 in gold, paid under the decrees of this court, but alleged that his disbursements had been $13,355.98 (of which he gave an account by items), and that his charge for services was $20,000 in the case of Texas v. White, Chiles, et al., alone; the reasonableness of which charge was corroborated by affidavits of highly respectable counsel. The balance, and much more, he claimed as due to him from the State of Texas for his services in relation to others of this same lot of indemnity bonds, for the recovery of which he was originally retained by the governor of Texas, as well as for other matters specified in the answer, into the merits of which the court deemed it not necessary for it to go, inasmuch as neither party had asked it to settle or liquidate the accounts between them.

It appeared by the answer that at the breaking out of the rebellion there were in the treasury of Texas seven hundred bonds of the United States of $1000 each, belonging to the school fund of the State, and known as the Texas Indemnity Bonds, being part of the $5,000,000 of bonds delivered to the State at the time of its admission into the Union. These bonds by their terms were payable to the bearer, but by statute of Texas were required to be indorsed in order to be available in the hands of the holder. The particular bonds which were the subject of the respondent's services, had not been indorsed by any governor of the State, but its military board nevertheless disposed of them for the purpose of aiding in carrying on the war. Of these bonds one hundred and thirty-six came into the hands of White, Chiles, and others, about one hundred and fifty into the hands of Peabody & Co., and various others into the hands of other persons. It was contended by these parties, that having received the bonds in good faith, they were entitled to be paid their full amount by the government of the United States, and many of them were so paid. But it was set up by the answer to the present rules, that, by the indefatigable exertions of the respondent, payment was stopped on a large number of the bonds, and suits were instituted against the parties who had received them, or had received the money secured by them.

The respondent was employed by A. J. Hamilton, the provisional governor of Texas, in 1865, to carry on these prosecutions. He first commenced a suit against White, Chiles, et al., in Texas, but not being able to serve them with process he removed his operations to Washington, and there commenced the suit, now No. 4 on the original docket, in which the money in question was recovered. He also took the proper steps and presented elaborate arguments in the treasury department to prevent a redemption of the bonds and to render the prosecution effectual; being partially successful in this object, as before mentioned. No stipulation was made with Governor Hamilton for any certain fee for these services, but it was understood between them that the respondent should charge such fees as the responsibility, expense, time, skill, and services should render proper. On the faith of this understanding, the respondent left his home in Texas, where his practice was lucrative, and came to the North to attend to this business. For a time, on a change of local administration in Texas, other counsel were employed in the cases, but never, as it appeared, to the entire displacement of the respondent; and in December, 1867, he received the following special engagement from E. M. Pease, then governor of Texas:

'EXECUTIVE OF TEXAS,

'AUSTIN, December 3d, 1867.

'GEORGE W. PASCHAL, ESQ.

'DEAR SIR: Your two letters, of the 9th and 14th of November, came together a day or two since. I had intended to write you before this, and ask you to make a thorough examination of the suit at Washington in behalf of the State against Chiles and others, for certain United States bonds belonging to the school fund of Texas, but a great press of business has prevented me from doing it. I now wish you to make such an examination, and make a full report thereon to this office as early as possible. In the meantime you are fully authorized to take charge of and represent the interest of the State in said suit. Your compensation will be dependent upon the action of a future legislature, unless a recovery is had in the suit, in which event I shall feel authorized to let you retain it out of the amount received.

'Yours, with respect,

'E. M. PEASE.'

The power of the governor to make such an arrangement was not disputed. The legislature, in October previous, had passed an act expressly authorizing him to take such steps as he might deem proper to recover possession of these bonds, and to compromise with the parties holding them, or through whose hands they had passed. The respondent accepted these terms and continued to manage and conduct the subsequent litigation, both in this case of White, Chiles, et al., and other cases. In addition to the above letter, Governor Pease, on the 13th of November, 1868, executed to him a power of attorney, constituting him his agent and attorney in fact, to represent the State of Texas in any suits then pending, or thereafter to be instituted, in any courts in the District of Columbia, in relation to any of the said bonds, with power to settle and compromise with any of the parties. Under these various retainers and engagements, the respondent gave his attention for several years to the recovery of the bonds, and finally succeeded in recovering the amount before mentioned from the defendants in the case of White, Chiles, and others, and made considerable progress in negotiating a settlement of those which had come to the hands of Peabody & Co. In June, 1869, Governor Pease visited Washington, and on being made acquainted with the respondent's proceedings, approved of the same, and entered into a further arrangement with him in relation to 300 of the said bonds, which had been carried to Europe by one Swisher (of which the Peabody bonds were a part), by which he agreed that the respondent should be paid for carrying the litigation through, twenty-five per cent. on the one hundred and forty-nine bonds received by Peabody & Co., and twenty per cent. on the remainder, being one hundred and fifty-one bonds, in the hands of Droege & Co. Under this arrangement the respondent continued his negotiations with these parties, and was, as he believed, near effecting a satisfactory arrangement and settlement with them, when, on or about the 27th of January, 1870, he received a telegram from E. J. Davis, who had been appointed provisional governor of Texas, in place of Governor Pease, that his appointment as agent for the State of Texas was revoked. A letter from the governor was received shortly after, containing a formal revocation of the respondent's authority as such agent, and of the power to represent the governor of Texas, given to him by Governor Pease. The respondent alleges that this interference on the part of Governor Davis put an end to the negotiations for settlement with Droege & Co., and Dabney, Morgan & Co. (parties who had received the money on the Peabody bonds), and was entirely unauthorized by the governor, and entitles him to receive the contingent fees of twenty-five and twenty per cent., as before mentioned, and to continue as attorney and counsel in the case until his demand is settled.

He also asserts that the State of Texas is indebted to him in a balance of $17,577 for publishing, binding, and delivering to the secretary of state of Texas, 400 copies each of five volumes of reports of the decisions of the Supreme Court of Texas, which he reported under the laws of the State; also that the State owes him $1000 for bringing two suits in the District Court of Travis County, and presenting appeals therein to the Supreme Court of the State.

On the part of the State of Texas it was shown, not only that the governor had revoked the respondent's authority, but that he had appointed Mr. Durant as attorney and agent of the State in his stead, with authority to receive all moneys due to the State; and that Mr. Durant had made due demand of the respondent for the moneys in his hands, and had required him not to intermeddle further in the suit of Texas v. Peabody et al.

Mr. A. G. Riddle, for the respondent:

1. As to the rule in the first case. Attorneys at law and solicitors in equity have, undoubtedly, by the English rule, a general lien, not only upon all the papers and documents of their clients in their possession, not only for all the costs and charges due to them in the particular cause in which the papers and documents come to their possession, but also for the costs and charges due to them for other professional business and employment in other cases; and this lien extends to all moneys received and judgments recovered. The rule is applied in the United States, for the protection of the bar generally. The whole subject is presented in a learned and able note by Mr. T. W. Dwight, in the American Law Register.

The fact that the fee is a contingent fee, does not affect the case. Such fees are lawful in Texas, and have been recognized by this court in Wylie v. Coxe.

Finally, the respondent shows that he retains the fund in good faith. This being so, the rule must fall.

2. As to the rule in the second case. It is not pretended that any cause exists for Mr. Paschal's removal, except the wish of the present governor of Texas. But a contract for a contingent fee having been made, and Mr. Paschal having entered upon his work, and spent much time, labor, and thought upon it, and incurred heavy expenses, he is not dischargeable at all, or, if so, dischargeable only on payment of his full fee. He has neglected other business to devote himself to this great claim; he has made arrangements affecting his whole course of life. He is interested pecuniarily and by contract in a recovery, as actually as the State of Texas is. He cannot sue that State for the balance remaining above the sum which he can get from the fund in his hand. His only chance, since a disturbance has arisen between him and the governor of Texas, is success in the case, and a recovery from Peabody & Co. Our argument rests on the fact that the fee was to be contingent on recovery. That class of fees has been decided to be lawful, and the court cannot apply the ancient chivalric rules which govern counsellor and client in countries or states where the relation is purely honorary, and where no action will lie for even the quantum meruit to the new class of cases. The matter is, in them, one of business and contract; not of mere confidence and honor. In Wylie v. Coxe, Mr. Coxe had been employed by one Baldwin, upon a contract for a contingent fee. Baldwin died, and his administrator sought to revoke the powers of Coxe. But this court said that it could not be done, except upon payment of the fees. And the reason is obvious. It is because such an attorney has a power, coupled with an interest.

Mr. Durant, contra:

As to the motion in the first case. The defence presents the remarkable case of a lawyer recovering a large sum of money for his client, and then not only keeping the whole of it, but claiming an enormous sum beside. The percentage claimed is excessive. In Wylie v. Coxe, the contingent fee was but 5 per cent., and the money had been all recovered by Mr. Coxe, leaving the remaining 95 clear to the client's hand. The fruitlessness of the recovery to the client in this case, owing to the percentages claimed for Mr. Paschal, and the sums paid out for other counsel, is itself a sufficient argument in favor of the rule asked for.

By the settled laws of England a barrister cannot sue for his fees. This court has never decided that he could. Coxe v. Wylie does not decide this, nor anything pertinent to our case; for the services rendered by Mr. Coxe were not rendered in any court, nor as a barrister, but were in obtaining an act of Congress and in proving the case before a board of commissioners. Probably any intelligent man, acquainted with business and politics, could have done the same service as Mr. Coxe did.

If counsel can sue for fees he has no lien for money in his hands, and must deposit it in court. The privilege of lien is one given to attorneys only. At all events he cannot set up a lien on moneys not the specific product of his effort in the case. 'The lien,' says Lord Cottenham, 'upon the fund realized in the suit is confined to the costs of that suit.' Here Mr. Paschal seeks to retain a large balance obtained in one case for services (as he conceives) in another; services which were to be paid for only in case of his getting certain moneys; moneys which he has failed to get.

Those who contract with the State, must rely on the discretion and good faith of the legislative body. It is a presumption of law that the sovereign power will do justice.

As to the rule in the second case. The governor had the legal right to discharge Mr. Paschal. Even in cases of contracts for personal service for a fixed period, the employer may discharge the servant. The fact that the fee was contingent don't affect the case.

Mr. Justice BRADLEY, having stated the case, delivered the opinion of the court.

title: In Re Paschal


text: Talk:In Re Paschal

title: Talk:In Re Paschal


text:
In Re Paschal/Opinion of the Court

The application made on the first of these cases (No. 4), for an order on the respondent to pay money into court is in the nature of a proceeding as for a contempt. The application is based upon the power which the court has over its own officers to prevent them from, or punish them for, committing acts of dishonesty or impropriety calculated to bring contempt upon the administration of justice. For such improper conduct the court may entertain summary proceedings by attachment against any of its officers, and may, in its discretion, punish them by fine or imprisonment, or discharge them from the functions of their offices, or require them to perform their professional or official duty under pain of discharge or imprisonment. The ground of the jurisdiction thus exercised is the alleged misconduct of the officer. If an attorney have collected money for his client, it is prim a facie his duty, after deducting his own costs and disbursements, to pay it over to such client; and his refusal to do this, without some good excuse, is gross misconduct and dishonesty on his part, calculated to bring discredit on the court and on the administration of justice. It is this misconduct on which the court seizes as a ground of jurisdiction to compel him to pay the money, in conformity with his professional duty. The application against him in such cases is not equivalent to an action of debt or assumpsit, but is a quasi criminal proceeding, in which the question is not merely whether the attorney has received the money, but whether he has acted improperly and dishonestly in not paying it over. If no dishonesty appears the party will be left to his action. The attorney may have cross demands against his client, or there may be disputes between them on the subject proper for a jury or a court of law or equity to settle. If such appear to be the case, and no professional misconduct be shown to exist, the court will not exercise its summary jurisdiction. And as the proceeding is in the nature of an attachment for a contempt, the respondent ought to be permitted to purge himself by his oath. 'If he clear himself by his answers,' says Justice Blackstone, 'the complaint is totally dismissed.'

All, then, that we are concerned to ascertain and decide on this motion is, whether the respondent retains the money in his hands in bad faith, and is therefore guilty of any such misconduct as will justify the court in interposing its authority in a summary way.

Upon a consideration of the facts disclosed by the answer and affidavits, the result to which the court has come, in relation to the money retained by the respondent, is, that he has not been guilty of any misconduct which calls for the exercise of summary jurisdiction. We see no reason to suppose that he is not acting in good faith; and whether his claim to the entire amount be valid or not-(a point which we are not called upon to decide)-it is clear that the claim is honestly made. The case is one in which the parties should be left to the usual remedy at law, where the questions of law and fact which are mooted between them can be more satisfactorily settled than they can be in a summary proceeding.

A good deal has been said in the argument on the question whether the respondent has, or has not, a lien on the moneys in his hands. We do not think that the decision of this motion depends alone on that question. For, even if he has not a lien coextensive with the sum received, yet if he has a fair and honest set-off, which ought in equity to be allowed by the complainant, that fact has a material bearing on the implied charge of misconduct which underlies the motion for an order to pay over the money. And when, as in this case, there exists a technical barrier to prevent the respondent from instituting an action against his client (for it is admitted that he cannot sue the State of Texas for any demand which he may have against it), it would seem to be against all equity to compel him to pay over the fund in his hands, and thus strip him of all means of bringing his claims to an issue. Whilst, on the other hand, no difficulty exists in the State instituting an action against him for money had and received, and thus bringing the legality of his demands to a final determination.

But in the judgment of the court the respondent has a lien upon the fund in his hands for at least the amount of his fees and disbursements in relation to these indemnity bonds. His original retainer by Governor Hamilton related to all the bonds indiscriminately, and much of the service rendered by him has been rendered indiscriminately in relation to them all. With regard to the White and Chiles bonds the agreement of Governor Pease was express, that in case of recovery the respondent might retain his compensation out of the amount received. In England, and in several of the States, it is held that an attorney or solicitor's lien on papers or money of his client in possession extends to the whole balance of his account for professional services. But whether that be or be not the better rule, it can hardly be contended that, in this case, it does not extend to all the fees and disbursements incurred in relation to all of these indemnity bonds. And, in this country, the distinction between attorney or solicitor and counsel is practically abolished in nearly all the States. The lawyer in charge of a case acts both as solicitor and counsel. His services in the one capacity and the other cannot be well distinguished. And, as a general rule, counsel fees, as well as those of attorney or solicitor, constitute a legal demand for which an action will lie. And whilst, as between party and party in a cause, the statutory fee bill fixes the amount of costs to be recovered, as between attorney or solicitor and client a different rule obtains. The claim of the attorney or solicitor in the latter case, even in England, extends to all proper disbursements made in the litigation, and to the customary and usual fees for the services rendered.

The fee bill adopted by Congress in 1853 recognizes this general rule and, in fact, adopts it. By the first section of that act it is expressly declared, that nothing therein shall be construed to prohibit attorneys, solicitors, and proctors from charging to, and receiving from, their clients, other than the government, such reasonable compensation for their services, in addition to the taxable costs, as may be in accordance with general usage in their respective States, or may be agreed upon between the parties.

The change in the rule relative to fees and costs has been gradually going on for a long period. In Pennsylvania, counsel fees could not be recovered in an action so late as 1819, when the case of Mooney v. Lloyd, was decided. But, in the subsequent case of Foster v. Jack, decided in 1835, the contrary was held in a very able opinion delivered by Chief Justice Gibson. And in Balsbaugh v. Frazer, Chief Justice Black delivered the opinion of the court in a series of propositions which strongly commend themselves for their good sense and just discrimination. The court there held that in Pennsylvania an attorney or counsellor may recover whatever his services are reasonably worth; that such claim, like any other which arises out of a contract, express or implied, may be defalked against an adverse demand; that an attorney who has money in his hands, which he has recovered for his client, may deduct his fees from the amount; that if he retain the money with a fraudulent intent the court will inflict summary punishment upon him; but if his answer to a rule against him convinces the court that it was held back in good faith, and believed not to be more than an honest compensation, the rule will be dismissed, and the client remitted to a jury trial.

In New York, counsel fees have always been recoverable on a quantum meruit. In the case of Stevens & Cagger v. Adams, Stevens recovered $300 for counsel fees and $50 for maps made to be used in a cause. It was held by the court that the fee bill, which declares it unlawful to demand or charge more than therein limited, has reference only to the question of costs as between party and party, and not as between counsel and client. The arguments of Chancellor Walworth and Senators Lee and Verplank, in the Court of Errors, on the general subject, were exceedingly lucid and able, going to show that in this country the counsellor is regarded as entitled to a fair remuneration for his services, and to recover the same in an action either upon an express or implied contract. The code has since abolished the fee bill, and left attorneys and solicitors to make their own bargains with their clients. But the courts have held that this change has not affected the attorney's lien, even on the judgment recovered, for the amount which it has been agreed he shall receive. In one case he was to receive one-half the amount to be recovered. Judgment was obtained for $1179, and the court held that the attorney had a lien on this judgment for his half of it, and that the defendant could not safely settle with the plaintiff without paying him.

In Texas the law has been held substantially the same. In the case of Casey v. March, it was decided that an attorney has a lien on the papers and documents received from his client, and on money collected by him in the course of his profession, for the fees and disbursements on account of such claims, and for his compensation for his services in the collection of the money. If, as the respondent contends, this case is to be governed by the law of Texas, it is decidedly in favor of his lien, at least to the extent of his services and disbursements in relation to the indemnity bonds. As the original retainer was made in Texas, we are inclined to the opinion that the rights of the parties are to be regulated by the laws of that State. But if this be not the case, this court would be guided by what it deems to be the prevailing rule in this country; and, according to this rule, we are of opinion that the respondent has a lien on the fund in his hands for his disbursements and professional fees in relation to the indemnity bonds; and that in retaining the said fund for the purpose of procuring a settlement of his claim he has done nothing to call for the summary interposition of this court.

The motion for an order in case No. 4, to compel the respondent, George W. Paschal, to pay to the clerk of this court the money received by him, is therefore DENIED.

The other motion we think should be granted. The respondent, as appears from his answer, was employed by Governor Pease to proceed with and carry through the litigation relating to the 300 bonds in the hands of Peabody & Co. and Droege & Co., with a stipulation to receiver 25 per cent. of the amount that might be recovered on 149 of the bonds, and 20 per cent. of the amount to be recovered on the remainder. Granting it to be true that this contract was definitely concluded (although there seems to have been some uncertainty as to one part of it), it cannot be seriously claimed that the complainant is so fixed and tied up by the arrangement that it cannot change its attorney and employ such other counsel as it may see fit, always being responsible, of course, for the consequences of breaking its contract with the respondent. Whether in discharging him the State has made itself liable for the whole contingent fee agreed upon, or only for so much as the respondent's actual disbursements and services were worth up to the time of his discharge, or for nothing whatever, it is not necessary for us to decide. That question can be more properly determined in some other proceeding instituted for the purpose. The relations between counsel and client are of a very delicate and confidential character, and unless the utmost confidence prevails between them the client's interests must necessarily suffer. Whether in any case, in virtue of an agreement made, an attorney may successfully resist an application of his client to substitute another in his place, we need not stop to inquire. In this case one of the States of this Union is the litigant, and moves to change its attorney for reasons which are deemed sufficient by its responsible officers. It is abundantly able, and it must be presumed will be willing, to compensate the respondent for any loss he may sustain in not being continued in the management of the cause. The court cannot hesitate in permitting the State to appear and conduct its causes by such counsel as it shall choose to represent it, leaving the respondent to such remedies for the redress of any injury he may sustain as may be within his power. Under the decision which we have just made in relation to the money in his hands, he will be able to retain that fund and any papers and documents belonging to his client until his claims shall be adjudicated in such action as the State may see fit to institute therefor.

An order to discharge the respondent, George W. Paschal, as solicitor and counsel for the complainant in the second case, No. 6, will be GRANTED.

NO COSTS will be allowed to either party on these motions.

ORDERS ACCORDINGLY.

title: In Re Paschal/Opinion of the Court


text: Talk:In Re Paschal/Opinion of the Court

title: Talk:In Re Paschal/Opinion of the Court


text:
Yates v. Milwaukee

APPEAL from the Circuit Court, District of Wisconsin. The case was this:

In the year 1856, Shepardson, who was the owner of a lot in Milwaukee fronting on the Menomonee and Milwaukee Rivers in the said city, and who had begun to build a wharf at the junction of those rivers, conveyed the interest that he had in the wharf and in the front of the lot to the centre of the Milwaukee River, to one Yates, with the right and privilege of docking, dredging out, and making a water front on the Milwaukee River. Between the margin of the water, which for the purposes of this case may be assumed to be the eastern boundary of Shepardson's lot, and the navigable channel of the Milwaukee River, a space intervened which was covered with water more or less, but which was of no use for purposes of navigation. The title of this was supposed by Shepardson and Yates to be conveyed by the deed from the former to the latter, and over it Yates built a wharf of the width of the lot, and extending one hundred and ninety feet, in order to reach the navigable part of the river.

An act of the Wisconsin legislature, approved March 31st, 1854, had authorized the common council of Milwaukee, 'by ordinance, to establish dock and wharf lines upon the banks of the Milwaukee and Menomonee Rivers, restrain and prevent encroachments upon said rivers and obstructions thereto;. . . and also to cause the said Milwaukee River to be dredged,' &c., and in 1864, the city by an ordinance declared this wharf an obstruction to navigation, and a nuisance, and ordered it to be abated. On the refusal of Yates to abate it himself, the city entered into a contract with one Miller, to remove it, and thereupon Yates filed the bill in the court below against the city and Miller, to restrain them from doing so.

There was no evidence to show that the wharf was an actual obstruction to navigation, or was in any other sense a nuisance.

It appeared, however, by the record of the case of Judd v. Yates, in the Supreme Court of Wisconsin, that some time before this bill Yates sued one Judd (a stranger to this suit), alleging that he, Yates, was the owner of the wharf in question, and that Point Street, which was originally laid out to the low and unnavigable waters of the river, had been filled in, on the north half thereof, adjacent to the wharf of the plaintiff; that the defendant had wrongfully entered upon that portion of Point Street which had been filled in and graded, and had excavated the same; and that, in consequence thereof, the wharf of the plaintiff had been undermined, &c., and he claimed damages for this consequential injury.

The answer set up, that the former owners of the premises had made a plat; that, in subsequent partition suit between the owners, the court had adopted the plat, and divided the lots among the owners with reference to the plat; that the plat represented the premises as a portion of Milwaukee River, and that 'the premises became thereby a highway by water.'

The defence was sustained by the Supreme Court of Wisconsin, upon the doctrine of dedication; it conceiving that the premises for the injury to which the plaintiff complained, were devoted by the original proprietors to the public use as a highway by water, and consequently that the grading, filling, and other works of the plaintiff within the line of such highway, by which it is blocked up and destroyed, were a public nuisance.

The court, in its opinion in the case, speaking of the plat, say:

'High ways by land and highways by river, wherever clearly delineated and their boundaries fixed, stand on the same footing, and it is immaterial whether they are actually passable in the whole extent or not. If not passable, the public have the right to make them so,' &c.

In the present suit, the court below, relying perhaps on the decision referred to, dismissed the bill. The complainant appealed.

Mr. Carpenter, for the appellant:

The law is settled in Wisconsin, by Walker v. Shepardson, that the owner of land bordering upon a fresh-water stream, above the ebb and flow of the tide, owns to the centre of the stream, subject to the right of the public to use the same as a highway where it is navigable in fact.

But conceding that as matter of fact this wharf is an obstruction of navigation, still this decree should be reversed, and the injunction prayed for by the bill should be granted. It is now fully established, that if there be a nuisance in a public highway, a private individual cannot of his own authority abate it unless it does him a special injury, and can only interfere with it so far as is necessary to exercise his right of passing along the highway.

The legislature did not mean to give the city the power which it attempts to exercise; and if it did mean to do so, it had no power to give it. The city may by 'ordinance,' establish dock lines, &c. They may pass an ordinance, with penalty for disobedience, and if not obeyed they can bring an action to collect the penalty. The validity of the ordinance can then be tested. But they cannot, by an ordinance, employ a man to demolish a dwelling-house alleged by them to encroach on the highway. That would not be an ordinance, or law, or rule of action. In other words, they may pass a law to provide for the punishment of any man who does obstruct a highway, but they can't pass an ordinance declaring that A.'s wharf does this; that would be an exercise of judicial power.

Mr. Ryan, contra:

1. The locus in quo is a public highway.

The Milwaukee River is a navigable stream, and as such is a 'public highway, forever free.' Many public acts of the territory and State of Wisconsin, and of the United States recognize it as a navigable stream. It was meandered as such by the Federal government. Acts of the State and Territory authorize bridges over it, and provide for draws therein for the passage of vessels.

Being a highway, it is such in its whole width, from bank to bank, although some portions are too shallow for some uses; just as a street is none the less a highway because it is not worked and fit for use in its whole width. Riparian owners hold but to the edge, not ad medium filum.

The premises in question are made a public highway by water by dedication of the owners of the fee and acceptance by the public. By the plat made by the proprietors, the streets, alleys, and rivers, as designated thereon, were dedicated to the public use. In Yates v. Judd, Yates asserted the same right, to the same premises, in an action in the State courts of Wisconsin. The decision of that case establishes the law of Wisconsin on the questions necessarily involved in the present suit. It disposes of all the merits of the complainant's case; and binds this court under its own rule of decision to recognize the adjudication of the highest State courts on matters concerning State laws. Walker v. Shepardson, relied upon by Mr. Carpenter, must be read by its light.

2. It is said that they city had no power to remove the obstruction. The city, by its charter, has charge of all the public highways within its corporate limits, and has a special duty to keep the river dredged to a sufficient depth. It has established a wharf and dock line under the authority of the statute of 1854. Yates's wharf comes beyond it. It is therefore difficult to see the force of the opposing argument. This point also is settled by Yates v. Judd.

Reply: The decision in Yates v. Judd, is not upon the construction of any statute or constitutional provision of the State, but upon a principle of the common law. Such a decision this court is not bound to follow.

Moreover, the decision is not sound in doctrine, and ought not to be followed. It is erroneous in holding that by the platting of the land upon the bank of the river, and representing the river as it existed in nature, the proprietors intended to, or in law did, part with their rights as riparian owners. No authority is cited, no reason given, for this view; none can be. The distinction between land and water is founded in nature. When a proprietor makes a plat, and lays out a street on his own land, it is fair to say that he intended to establish a highway of the precise dimensions indicated by his plat; for the reason that it was made a highway only by his act, and that if he had not intended to make it a highway to the extent indicated, he would not have so indicated it. But Milwaukee River does not owe its existence, capacity, or limits, to any proprietor or plat. The sensible doctrine is that which everybody knows corresponds with the fact, that in platting land bordering upon a river the owner intends to mark only the line of separation, as it exists in fact between land and water, without intending to indicate where the navigable channel is at present, or to predict where it will be in the future; and that, as a riparian proprietor, he intends to retain the right to reach the navigable channel of the river, wherever it is or may be, with piers and wharves.

Mr. Justice MILLER delivered the opinion of the court.

title: Yates v. Milwaukee


text: Talk:Yates v. Milwaukee

title: Talk:Yates v. Milwaukee


text:
Yates v. Milwaukee/Opinion of the Court

The defendants, in support of their right to remove the wharf, seem to rely-1st, upon the want of title in the plaintiff to the locus in quo; and 2d, upon the absolute power of the city of Milwaukee, as the repository of the public authority on the subject of wharves, piers, and other matters affecting the navigation of the river within the city limits, to determine the character and location of such structures.

As to the first of these propositions, it does not seem to be necessary to decide whether the title of the lot extends to the thread of the channel of the river, though if the soil was originally part of the public lands of the United States, as seems probable, the case of The Railroad Company v. Schurmier, would limit the title to the margin of the stream.

But whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be. This proposition has been decided by this court in the cases of Dutton v. Strong, and The Railroad Company v. Schurmier, just cited. The Supreme Court of Wisconsin has gone further, and asserts the doctrine that the title of the owner of such a lot extends to the centre of the stream, subject to the easement of the public in its use for navigation, and that he 'may construct docks or landing-places for goods or passengers, taking care that vessels employed in navigating the stream are not impeded in their passage, nor prevented from the use of all parts of the stream which are navigable.'

This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law, and if necessary that it be taken for the public good, upon due compensation.

The act of the Wisconsin legislature, approved March 31, 1854, confers upon the city of Milwaukee the authority to establish dock and wharf lines on the banks of the Milwaukee and Menomonee Rivers, and restrain and prevent encroachments upon said rivers and obstructions thereto, and it is by this statute that the summary proceedings for the removal of appellant's wharf are supposed to be authorized. But the mere declaration by the city council of Milwaukee that a certain structure was an encroachment or obstruction did not make it so, nor could such declaration make it a nuisance unless it in fact had that character. It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws either of the city or of the State, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city, at the uncontrolled will of the temporary local authorities. Yet this seems to have been the view taken by counsel who defended this case in the Circuit Court; for that single ordinance of the city, declaring the wharf of Yates a nuisance, and ordering its abatement, is the only evidence in the record that it is a nuisance or an obstruction to navigation, or in any manner injurious to the public.

It is true that it is said in argument that the city council has established a wharf and dock line under the authority of the statute we have cited, and that Yates's dock projects beyond that line.

No such defence is set up in the answer, and the existence of such a line, being a matter of which the court could not take judicial notice, it cannot be taken into account here, though there is some testimony on the subject as to two different dock lines, one made before and the other after Yates's wharf was built. But however this may be, we are of opinion that the city of Milwaukee cannot, by creating a mere artificial and imaginary dock line, hundreds of feet away from the navigated part of the river, and without making the river navigable up to that line, deprive riparian owners of the right to avail themselves of the advantage of the navigable channel by building wharves and docks to it for that purpose.

The case of Yates v. Judd, is much relied on as conclusive of the one before us. Not as a technical estoppel, though one of the parties is grantor of the lot in question to the present plaintiff, and the suit embraced some of the points mooted here. But it is said that, as a case establishing the law of the State of Wisconsin on the questions necessarily involved in the present suit, we are bound to follow it in this court.

We do not see in that case any legal proposition decided in conflict with what we have said in the previous part of this opinion. The court held that from the plat made by the original owners, who had laid out the lots, they would infer a dedication of the space covered with water, in front of the dry land of the lots, to public use, and that Yates's wharf was an invasion of that public right. This question of dedication, on which the whole of that case turned, was one of fact, to be determined by ascertaining the intention of those who laid out the lots, from what they did, and from the application of general common law principles to their acts. This does not depend upon State statute or local State law. The law which governs the case is the common law, on which this court has never acknowledged the right of the State courts to control our decisions, except, perhaps, in a class of cases where the State courts have established, by repeated decisions, a rule of property in regard to land titles peculiar to the State.

This is not such a case. In every instance where the question of a dedication might arise it would be decided on the special facts of each case even in the Wisconsin courts, and the case of Yates v. Judd lays down no principle of law which would govern all such cases. The Supreme Court inferred from the facts as presented in that case a dedication of the land between the lot, as ascertained by its given dimensions, and the navigable channel of the river. That question does not arise here, because, as we have already seen, the case of The Railroad Company v. Schurmier decided that if the lot, as thus described, came to the margin of the stream, no title to the precise locality supposed to be dedicated ever passed from the United States.

Much, however, as we respect that court, we feel at liberty to hold, as we do, that there is no valid dedication as the case is presented to us.

On the whole we are of opinion that Shepardson, as riparian owner of a lot bounded by a navigable stream, had a right to erect this wharf, and that Yates, the appellant, whether he be regarded as purchaser or as licensee, has the same right; and that if the authorities of the city of Milwaukee deem its removal necessary in the prosecution of any general scheme of widening the channel and improving the navigation of the Milwaukee River, they must first make him compensation for his property so taken for the public use.

The decree of the Circuit Court is therefore REVERSED, with instructions to enter a decree enjoining the defendants below from interfering with plaintiff's wharf, reserving, however, the right of the city to remove or change it so far as may be necessary in the actual improvement of the navigability of the river, and

UPON DUE COMPENSATION MADE.

title: Yates v. Milwaukee/Opinion of the Court


text: Talk:Yates v. Milwaukee/Opinion of the Court


text:
Page:Ulysses, 1922.djvu/649

646 What other infantile memories had he of her?

15 June 1889. A querulous newborn female infant crying to cause and lessen congestion. A child renamed Padney Socks she shook with shocks her moneybox: counted his three free moneypenny buttons one, tloo, tlee: a doll, a boy, a sailor she cast away: blond, born of two dark, she had blond ancestry, remote, a violation, Herr Hauptmann Hainau, Austrian army, proximate, ahallucinationa hallucination [sic], lieutenant Mulvey, British navy.

What endemic characteristics were present?

Conversely the nasal and frontal formation was derived in a direct line of lineage which, though interrupted, would continue at distant intervals to its most distant intervals.

What memories had he of her adolescence?

She relegated her hoop and skippingrope to a recess. On the duke's lawn entreated by an English visitor, she declined to permit him to make and take away her photographic image (objection not stated). On the South Circular road in the company of Elsa Potter, followed by an individual of sinister aspect, she went half way down Stamer street and turned abruptly back (reason of change not stated). On the vigil of the 15th anniversary of her birth she wrote a letter from Mullingar, county Westmeath, making a brief allusion to a local student (faculty and year not stated).

Did that first division, portending a second division, afflict him?

Less than he had imagined, more than he had hoped.

What second departure was contemporaneously perceived by him similarly if differently?

A temporary departure of his cat.

Why similarly, why differently?

Similarly, because actuated by a secret purpose the quest of a new male (Mullingar student) or of a healing herb (valerian). Differently, because of different possible returns to the inhabitants or to the habitation.

In other respects were their differences similar?

In passivity, in economy, in the instinct of tradition, in unexpectedness.

title: Page:Ulysses, 1922.djvu/649


text:
Messenger v. Mason

MOTION to dismiss a writ of error to the Supreme Court of the State of Iowa. The case was thus:

Mason sued Messenger in one of the county courts of Iowa, to recover the possession of certain land in that State. He relied upon a judgment in partition of the tract, rendered in the District Court of the Territory of Iowa, in April, 1841, in pursuance of a law of that Territory.

The defendant objected to the admission of the record of judgment on the ground that the law under which the proceedings were had was unconstitutional and void.

The objection was overruled, the record admitted, and a verdict and judgment rendered for the plaintiff. On an appeal to the Supreme Court of the Territory, by the defendant, the judgment was affirmed, and the case was brought here as within the 25th section of the Judiciary Act.

The certificate from the Supreme Court of Iowa certified:

'That on the final hearing, the validity of the partition law of Iowa Territory, approved January 4th, 1839, was drawn in question, on the ground that the same was in conflict with the Ordinance of 1787, the Constitution of the United States, the treaties and laws thereof, that the objections thereto were overruled, and the statute held to be valid.'

The Territory of Iowa, it should be stated, was not a part of that to which the Ordinance of 1787 originally applied, but was a part of the Louisiana purchase. Prior to June 12th, 1838, it was part of the Territory of Wisconsin. The act, however, of the date just mentioned, which set it off and made its organic law, incorporated into its laws, indirectly, many of the provisions of the ordinance by extending to its inhabitants the rights and privileges theretofore secured to the Territory of Wisconsin by its organic law, among which were those found in the ordinance. But the section that conferred these rights and privileges upon the new Territory of Iowa, provided that they should be subject 'to be altered, modified, or repealed' by its governor and legislative assembly.

Mr. Mason now moved to dismiss the case for want of jurisdiction, submitting that the certificate did not present any Federal question, and that the case was not within the 25th section.

Mr. Wills, contra, insisted that it was plain enough by the certificate that a right set up under the Ordinance of 1787 had been denied to his clients in consequence of the partition law of Iowa; and as the Ordinance of 1787, made by the Congress of the Confederation, was continued in force by an act of the Congress of the United States, that a Federal question was thus raised.

Mr. Justice NELSON delivered the opinion of the court.

title: Messenger v. Mason


text: Talk:Messenger v. Mason

title: Talk:Messenger v. Mason


text:
Messenger v. Mason/Opinion of the Court

It is insisted, on the part of the defendant in error, that an examination of the record will show that there is no Federal question in the case of which this court can take cognizance.

In the case of Maxwell v. Newbold et al. it was held the objection that 'the charge of the court, the verdict of the jury, and the judgment below are each against, and in conflict with the Constitution and laws of the United States,' was not sufficiently specific to raise a question within the provisions of this section. The Chief Justice in delivering the opinion of the court observes, that 'the clause in the Constitution and the law of Congress should have been specified by the plaintiffs in error in the State court, in order that this court might see what was the right claimed by them, and whether it was denied by the decision of the State court.' This court had previously held, in Lawler v. Walker and others, that the statement in a certificate of the State court that there was drawn in question the validity of statutes of Ohio, without saying what statutes, was too indefinite, and that the statutes complained of in the case should have been specified. These decisions were reaffirmed in Hoyt v. Shelden. It is quite clear, upon these authorities, that the constitutional objection taken in the present case is too general to be noticed on a writ of error under this 25th section.

As to the effect of the certificate from the court below, see Commercial Bank v. Buckingham, Lawler v. Walker, and Porter v. Foley.

One difficulty in bringing the case within this 25th section is, that it makes no provision for the re-examination of a judgment in a State court which upholds the validity of a statute of a Territory in contravention of the Constitution. It applies only to the case where is drawn in question the validity of a statute of, or authority exercised under, any State. The circumstance, therefore, that the court below held the statute of the Territory providing for partition of lands among tenants in common, valid, is of no importance in the case.

It has been urged on the argument, however, in view of the certificate of the court, that a right set up under the Ordinance of 1787, by the defendants at the trial, had been denied them, and that the construction of a law of Congress had thus been drawn in question.

Although the organic law of the Territory of Iowa did incorporate into its system of laws, indirectly, many of the provisions of the Ordinance of 1787, by extending to its inhabitants the rights and privileges theretofore secured to the Territory of Wisconsin by its organic law, among which were those found in the ordinance, yet the same section that conferred these rights and privileges upon the Territory of Iowa provided that they should be subject to be altered, modified, or repealed by the governor and legislative assembly of the said Territory. If, therefore, anything is found in this act of partition in conflict with these provisions, to that extent they must be regarded as altered or modified, which affords a complete answer to the ground relied upon under the ordinance.

MOTION GRANTED.

Mr. Justice MILLER took no part in the decision, having been counsel in the case.

title: Messenger v. Mason/Opinion of the Court


text: Talk:Messenger v. Mason/Opinion of the Court


text:
Railroad Company v. McClure

ERROR to the Supreme Court of Iowa; the case in its principal features being thus:

The District Court of Washington County, Iowa, on a bill by the county to restrain the collection of taxes for the payment of certain county bonds issued to railroads in June and July, 1858, and where the fact whether, at the time the bonds were issued, the then constitution of the State gave authority to counties to issue such bonds, was one of the issues raised by the pleadings, enjoined the collection; so apparently, in effect, deciding that the bonds were void under the constitution of the State existing when they were issued. The creditors appealed to the Supreme Court of the State. That court affirmed the judgment. The record brought here from it showed that the creditors made the question before that court, 'that the decision of the court below violated that clause in the Constitution of the United States which provides that no State shall pass any law impairing the obligation of contracts; and the decision of this court was against the right set up under such clause of the Constitution.'

The creditors now brought their case here as within the 25th section of the Judiciary Act, which enacts that final judgments in the highest court of a State where is drawn in question the validity of a statute of, or authority exercised under any State on the ground of their being repugnant to the Constitution. . . of the United States, and the decision is in favor of such, their validity, may be re-examined and reversed or affirmed in this court.

The Supreme Court of Iowa, as appeared from its published opinion, considered that the decision of the inferior court, which, it stated, had adjudged the bonds to be unconstitutional, and so null and void ab initio (in other words, had adjudged that there was no contract in the case), was not a decision against the clause of the Constitution of the United States which says 'that no State shall pass any law impairing the obligation of contracts;' and on this ground affirmed it.

Mr. Grant, for the plaintiff in error, referred to cases in the Supreme Court of Iowa to show that at the time when the bonds were issued, the constitution of that State, now construed by its courts in the decision below so as not to authorize the issue by counties of railroad bonds, had been construed so as to authorize such issues; and argued that the later interpretation, adverse to the validity of the bonds, impaired the obligations of a contract; as this court had decided.

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

title: Railroad Company v. McClure


text: Talk:Railroad Company v. McClure

title: Talk:Railroad Company v. McClure


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

This is a writ of error to the Supreme Court of the State of Iowa. The case is brought into this court under the 25th section of the Judiciary Act of 1789.

Nathaniel McClure, and the other complainants who are such in their own right, filed a bill in equity in the District Court of Washington County, whereby they sought to enjoin the collection of taxes, to be applied in the payment of the interest upon certain bonds issued by that county to the Ohio and Mississippi Railroad Company, as set forth in the bill.

Samuel S. Owen, the county treasurer and collector, and S. P. Young, the county judge, were made defendants.

McClure died, and his legal representatives were made parties complainant in his stead. A preliminary injunction was granted. The Ohio and Mississippi Railroad Company prayed to be made a party; was made a party accordingly; and filed an answer, alleging, among other things, that Thomas Durant, Betsey D. Tracey, Joseph E. Sheffield, Clark Durant, Thomas Dunn, and William Newton, were bon a fide holders of $132,000 of said bonds, and that, without their being parties, no decree could be made in the cause. The complainants amended their bill by making those persons defendants, and those defendants thereupon prayed to have the cause removed to the District Court of the United States for the Southern Division of Iowa. The application was overruled. They then filed an answer, wherein they maintained the validity of the bonds, and averred that they and the other holders, held them bon a fide, and prayed that the county judge and the county treasurer should be decreed to collect the amount of taxes requisite to pay the interest which had accrued. They afterwards filed a supplemental answer, in which they set forth that, on the 15th of August, 1860, Clark Durant, for himself and the other defendants, owners of said bonds, commenced in the District Court of the United States for the District of Iowa an action at law against the County of Washington upon the bonds and coupons referred to in the bill, to recover the instalments of interest due thereon for July, 1859, January, 1860, and July, 1860, and that the County of Washington appeared and pleaded in bar the same matters that are set up in the bill, and particularly that the issuing of the bonds was unconstitutional and void, that judgment was rendered in favor of the plaintiff, and that the said county thereupon removed the cause to the Supreme Court of the United States, where it was still pending. The board of supervisors were subsequently made defendants in this case. The District Court of Washington County decreed a perpetual injunction as prayed for. The case was taken by appeal to the Supreme Court of the State. In that court the defendants filed two supplemental answers. In the first it was alleged that since the filing of their preceding answer the case of Durant v. The County of Washington, taken to the Supreme Court of the United States, had been dismissed from that court, and that the judgment of the District Court of the United States for the District of Iowa then stood in force, and was unsatisfied. The second answer set forth that on the ___ day of _____, 1867, the defendants, Clark Durant and others, by the judgment of the Circuit Court of the United States for the District of Iowa, upon due process of law, recovered a further and other judgment upon interest warrants of said bonds to the amount of $70,652.37; that in said action Clark Durant was plaintiff and the County of Washington defendant, and that the complainants are taxpayers of that county, and privies to said judgment. The board of supervisors also answered in the appellate court. A stipulation was filed by the counsel of the parties admitting the facts set forth in the supplemental answers as to the judgments alleged to have been recovered and the dismissal of the writ of error from this court. The motion to remove the cause to the proper court of the United States was renewed and overruled, as it had been in the court below. The Supreme Court of the State affirmed the decree of the District Court of Washington County. The record shows that the counsel for the plaintiff in error waived in the Supreme Court of the State all questions except the one relating to the validity of the bonds. The opinion of the court was confined to that subject. The bonds were held to be invalid upon the ground that they were unauthorized and were forbidden by the constitution of the State. The same counsel in his brief and argument here has discussed only that subject. He has presented no other proposition for our consideration. Under these circumstances we have not deemed it proper to extend our examination of the case beyond this point.

The question of the validity of the bonds is not one of Federal jurisdiction. The Constitution of the United States declares, that no State shall pass a law 'impairing the obligation of contracts.' The constitution of a State is undoubtedly a law within the meaning of this prohibition. A State can no more do what is thus forbidden by one than by the other. There is the same impediment in the way of both. But the State has passed no law upon the subject, and the constitution of the State, which, as construed by the Supreme Court of the State, has worked the result complained of, was in force when the bonds were issued. The 25th section of the Judiciary Act of 1789 specifies the questions of which we can take cognizance in this class of cases, and expressly excludes all others from our consideration. It is clear that the question before us is not within the affirmative category.

If the case had been brought up from the Circuit Court under the 22d section of the Judiciary Act, this question and all others arising on the record, would have been open for examination. The 25th section is more limited in its operation.

The case will be DISMISSED FOR WANT OF JURISDICTION, and remanded to the court whence it came.


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


text:
Coddington v. Richardson

ERROR to the Circuit Court for the Southern District of Illinois; the case being thus:

By section 4 of the act of March 3d, 1865, it is provided that parties may submit the issues of fact in civil cases to be tried and determined by the court, without the intervention of a jury. The act continues:

'The finding of the court upon the facts, which finding shall be general or special, shall have the same effect as the verdict of a jury. The rulings of the court in the progress of the trial when excepted to at the time, may be reversed by the Supreme Court of the United States upon a writ of error or upon appeal, provided the rulings be duly presented by a bill of exceptions. When the finding is special, the review may also extend to the sufficiency of the facts found to support the judgment.'

With this enactment in force Richardson sued Coddington in the court below, in trover to recover damages for the conversion of certain horses and mules. The declaration contained two counts, the first for the conversion of the whole, and the second for the conversion of the undivided half of sixty-four horses and forty-five mules. By consent the case was tried by the court without the intervention of a jury, on the plea of the general issue and joinder.

The court found on the 5th July, 1866, 'that the plaintiff was the owner of an undivided interest of one-half in forty-eight mules and fifty-two horses, part of the property described in the declaration, and that the defendant converted the said interest to his own use, and thereupon assessed the plaintiff's damages at $5000,' and gave judgment accordingly. The defendant moved for a new trial, which being denied, he filed, with leave of the court, on the 30th of January, 1868, a bill of exceptions. The bill began:

'Be it remembered that upon the trial of this cause, by agreement of the respective parties present in court, and their attorneys, a jury was waived, and the cause was tried by the court by stipulation in writing, and all just and legal objections and exceptions which might be made were reserved by each party; and plaintiff, in order to maintain the issue in his behalf, introduced and read in evidence the depositions,' &c.

After setting forth a great deal of evidence the bill ended thus:

'This was all the evidence offered or introduced in the cause by either of the parties, and the court thereupon found the issue for the plaintiff, and assessed his damages at the sum of $5000.

'Whereupon the defendant moved the court for a new trial upon the grounds following:

'1st. The finding and judgment of the court is erroneous.

'2d. The damages were erroneously computed.

'3d. The finding as to the damages was not warranted by the evidence.

'Which motion the court overruled, and rendered judgment upon the finding against the defendant; to which several findings and rulings of the court, in finding the issue for the plaintiff, in assessing the damages for the plaintiff, and in overruling the motion for a new trial, and in rendering judgment for the plaintiff, the said defendant, by his counsel, severally excepted at the time of such finding, overruling, and judgment respectively, and prays that this his bill of exceptions may be signed and sealed by the court, which is done.'

Mr. W. H. Lamon, for the plaintiff in error, submitted the case, with a brief, which endeavored to show that the evidence as disclosed by the bill of exceptions, did not warrant a finding of the issue for the plaintiff, and assessment of damages as made; observing at the same time that though the matter was not put in a very technical form for review, it was a form not unusual in Illinois where the parties dispensed with a jury, and intended to bring up the whole question for review.

Mr. Lyman Trumbull, contra, argued that the case was disposed of by Norris v. Jackson, and by Flanders v. Tweed; that there was no special finding such as the act of Congress required; that on such a record as was here brought up, there was nothing for the court to consider.

The declaration was in the usual form, all the proceedings appeared to be regular, and the finding of the facts by the Circuit Court, like the verdict of a jury, was conclusive here, and whether the fact was rightly decided or not according to the evidence, was not open to inquiry in this court.

Mr. Justice NELSON delivered the opinion of the court.

title: Coddington v. Richardson


text: Talk:Coddington v. Richardson

title: Talk:Coddington v. Richardson


text:
Coddington v. Richardson/Opinion of the Court

No exceptions were taken to the admission or rejection of evidence on the trial, nor any special statement of facts found by the court. The only statement after closing the evidence, is, 'and the court thereupon found the issue for the plaintiff, and assessed his damages at the sum of $5000.'

There is no question of law arising upon the pleadings or the trial. Those attempted to be raised refer to the evidence, as embodied in the record, but which, in a trial of the facts before the court, a jury being waived, we do not look into. We look into them only when found by the court.

JUDGMENT AFFIRMED.


text: Talk:Coddington v. Richardson/Opinion of the Court


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Page:Ulysses, 1922.djvu/650

Rh As?

Inasmuch as leaning she sustained her blond hair for him to ribbon it for her (cf. neckarching cat). Moreover, on the free surface of the lake in Stephen's green amid inverted reflections of trees her uncommented spit, describing concentric circles of waterrings, indicated by the constancy of its permanence the locus of a somnolent prostrate fish (cf. mousewatching cat). Again, in order to remember the date, combatants, issue and consequences of a famous military engagement she pulled a plait of her hair (cf. earwashing cat). Furthermore, silly Milly, she dreamed of having had an unspoken unremembered conversation with a horse whose name had been Joseph to whom (which) she had offered a tumblerful of lemonade which it (he) had appeared to have accepted (cf. hearthdreaming cat). Hence, in passivity, in economy, in the instinct of tradition, in unexpectedness, were differencestheir differences [sic] were similar.

In what way had he utilised gifts 1) an owl, 2) a clock), given as matrimonial auguries, to interest and to instruct her?

As object lessons to explain: 1) the nature and habits of oviparous animals, the possibility of aerial flight, certain abnormalities of vision, the secular process of imbalsamation: 2) the principle of the pendulum, exemplified in bob, wheelgear and regulator, the translation in terms of human or social regulation of the various positions clockwise of moveable indicators on an unmoving dial, the exactitude of the recurrence per hour of an instant in each hour, when the longer and the shorter indicator were at the same angle of inclination, videlicet, 5 5/11 minutes past each hour per hour in arithmetical progression.

In what manners did she reciprocate?

She remembered: on the 27th anniversary of his birth she presented to him a breakfast moustachecup of imitation crown Derby porcelain ware. She provided: at quarter day or thereabouts if or when purchases had been made by him not for her she showed herself attentive to his necessities, anticipating his desires. She admired: a natural phenomenon having been explained by him not for her she expressed the immediate desire to possess without gradual acquisition a fraction of his science, the moiety, the quarter, a thousandth part.

title: Page:Ulysses, 1922.djvu/650