text: Talk:Badger v. United States ex rel. Bolles/Opinion of the Court


text:
Desmare v. United States

APPEAL from the Court of Claims.

On the 26th of June, 1867, Alphonse Desmare, of New Orleans, La., filed his petition in the Court of Claims to recover the value of five hundred and fifty-six bales of cotton, alleging that, in the year 1863, he was the owner of that number of bales, then at Opelousas, in the parish of St. Landry, La.; that, in April, 1863, said cotton was taken and captured by officers of the United States army, by whom, under the orders of General N. P. Banks, commanding the Department of the Gulf, it was shipped to New Orleans, sold, and the proceeds placed in the treasury of the United States.

The court below found, as matters of fact,--

1. The claimant, before the war, had his domicile in the city of New Orleans, La., where he resided, and was a partner with one Laforest, under the style of Laforest & Desmare, commission-merchants, and he was residing there also on the 19th of January, 1866. There is no evidence of any change of said domicile, or of a dissolution of said partnership; nor is there any evidence as to where the c aimant was on the 27th of April, 1862, when the United States military forces took possession of New Orleans, or before that date, during the war, of afterward, until October, 1862, when it is proved he was in the parish of St. Landry, La., purchasing the cotton, which is the subject of this action, and acting as agent of the rebel government for the exchange of Confederate bonds for Confederate notes, for which latter purpose he had an office at Opelousas, in said parish. Said parish was within the rebel lines until April, 1863, when it was taken possession of by United States forces under General Banks.

2. Between the 1st of October, 1862, and the month of April, 1863, the claimant, in person, purchased within said parish, of different persons, two hundred and sixty-eight bales of cotton, and paid for the same in Confederate money. All of said cotton was seized by officers of the United States upon the entry of their military forces into said parish, was turned over to agents of the Treasury Department, sold, and the net proceeds, to the aggregate amount of $51,456, are now in the United States treasury.

3. Said claimant and one Dupr e, jointly and personally, purchased within said parish, March 3, 1863, eighty-four bales of cotton, for which they gave their notes, with security. These notes were paid after the war, one-half by the claimant and one-half by said Dupr e. This cotton was seized by officers of the United States in April, 1863; was turned over to treasury agent and sold, and the net proceeds thereof, to the amount of $16,128, are in the United States treasury.

4. The claimant has failed to prove that any other cotton owned by him was seized by officers or agents of the defendants.

The court thereupon concluded, as matters of law,--

1. The claimant's domicile, found to have been in the city of New Orleans before the war, and not proved to have been changed, is presumed to have continued and been in that city when the purchases of cotton were made by him within the rebel lines, as set forth in the findings.

2. The claimant's domicile being in the city of New Orleans, he is presumed to have been there personally until he is proved to be elsewhere; and the claimant, not showing that he was absent from the place of his domicile when the city was captured, April 27, 1862, it is presumed he was there at that time, and subsequently crossed the Federal lines about the time he is proved to be in the parish of St. Landry.

3. The purchases of cotton by the claimant, under the circumstances set forth in the findings, were void as against the law and public policy of the United States, and he acquired no title to the cotton thereby.

The plaintiff's petition having been dismissed, he appealed to this court.

Mr. Thomas J. Durant and Mr. C. W. Hornor, for the appellant.

Because the claimant's domicile was in the city of New Orleans before the war, and was not shown by proof to have been changed, the presumption of the court below, that his domicile continued and was 'in that city when the purchases of cotton were made by him within the rebel lines,' &c., is contrary to both the facts and the law. He had his domicile in the parish of St. Landry when he bought the cotton there. It being established that before the war he was a rebel, and still one on Jan. 19, 1866, it is a presumption of law, that during all the intermediate time he remained one.

Probatis extremis praesumuntur media. Domicile is a question both of law and fact. Claimant was, in October, 1862, in the parish of St. Landry, 'purchasing cotton, and acting as agent of the rebel government.' As such an officer, it is undeniable he could have no domicile within the Union lines. The voluntary residence of the petitioner in New Orleans after the war began would have been a crime, and statute evidence of it.

The moment he took the oath and assumed the duties of an agent of the Confederate government in St. Landry, his domicile, both political and civil, in that parish, became fixed eo instanti.

This is a presumptio juris et de jure. It is as conclusive as the bar of a statute of limitation, or the estoppel by an adjudication of a matter in a court of competent, jurisdiction. No court will allow the contrary proof to be made. In the case of a public officer, neither the fact nor the intent of a domicile elsewhere could prevail over this presumption, which differs radically from the presumptions of the court below. 1 Evans's Pothier, 414; La. Code, 1870, art. 45; Phillimore on Domicile, 61; Murray v. Charming Betsy, 2 Cranch, 64; The Vanus, 8 id. 280 et seq.; The Frances, id. 363; Merlin, Rep., verbo Domicile; Boileux Commentaries Code Nap., vol. i. p. 220, on Code Nap. art. 107.

It cannot be doubted that there are transactions so radically and fundamentally national as to impress the national character, independent of peace or war, and the local residence of the parties. The Vrow Anna Catharina, 5 Rob. A. 167.

The petitioner was involved in the universal disloyalty of the South from the beginning of the war up to 19th January, 1866, and had his domicile, political and civil, in rebel territory during all that time, except for the interval between April 27 and October, 1862. In the absence of any proof of the fact that he was domiciled in New Orleans during this period, the lower court presumes, because he was there domiciled before the war; and, because this domicile was not proved to have been changed, it must be presumed to have continued; and hence he was domiciled in New Orleans when the purchases were made by him within the rebel lines.

Such a presumption is certainly not applicable to the exceptional state of war. In a prize court, it cannot be doubted that in an investigation into the legality or illegality of a trade carried on in an alleged violation of the laws of war, and where the proceedings were in rem against cotton, as in this case, Desmare's domicile would not be found to be under the flag of the Union. Politically, he would be decreed a Confederate by the courts of the Confederate States; and the idea that the Confederacy could have confiscated this cotton before its capture by the United States forces, on the ground that he was presumably a loyal man, because he had crossed the lines from New Orleans, and had renewed his allegiance to the Union, is purely illusory. And yet this result flows as naturally from the facts found as the legal conclusions drawn by the court below; and both are contradictory and untrue.

The question is, what is the political, rather than what is the civil, domicile of the claimant when residing in St Landry parish. The simple test, did he abandon the Union and cast his lot with the rebels, if applied in this case, would be quite conclusive. His acts and doings manifest a clear intent in him ''quatenus in illo exuere patriam. Whicker v. Hume, 7 H. L. C. 159; Moorhouse v. Lord'', 10 id. 282; Holdane v. Eckford, L. R. 8 Eq. 631; Woolsey's Intern. Law, § 168.

For the purpose of capture, property found in enemy territory is enemy property, without regard to the status of the owner. In war, all residents of enemy country are enemies. The time is not so essential as the intent. Lamar, Executor, v. Brown et al., 92 U.S. 187; Scholefield v. Eichelberger, 7 Pet. 593; Johnson v. Merchandise, 6 Hall's Am. L. I. 68; United States v. Penelope, 2 Pet. Adm. 438.

The Court of Claims first presumes, that New Orleans being Desmare's domicile prior to his capture, he remained so domiciled afterwards; and from this presumption draws a consequent presumption, that he must have crossed the line to buy the cotton. But no presumption can be safely drawn from a presumption. Douglass v. Mitchell's Executor, 35 Penn. 440.

War made all the inhabitants of Louisiana enemies of the Union. To this rule there were no exceptions in law, and few in fact. As fast as the territory was reconquered, its inhabitants did not lega ly become loyal, and vested with the capacity to stand in judgment in the Court of Claims, or any other national court. Until pardoned, and their allegiance was renewed, they were enemies. The essential elements of illegal traffic in time of war are: 1st, That it takes place between members of the two nations respectively in hostility to each other; 2d, That it counteracts the operations of war. 1 Kent, 66. Both of these elements must concur. Griswold v. Waddington, 15 Johns. 57; United States v. Grossmayer, 9 Wall. 72; Montgomery v. United States, 15 id. 395; Coppell v. Hall, 7 id. 542; United States v. Lap ene, 17 id. 601; Mitchell v. United States, 21 id. 350.

Neither of these elements involved in this case.

Mr. Solicitor-General Phillips, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

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

title: Desmare v. United States


text: Talk:Desmare v. United States

title: Talk:Desmare v. United States


text:
Desmare v. United States/Opinion of the Court

The judgment of this court in Mitchell v. United States, 21 Wall. 350, is decisive of this case. It is unnecessary to repeat what was there said. The subject of domicile in some of its aspects was carefully considered. We shall avail ourselves of its rulings without again specially referring to it. The findings of the Court of Claims furnish the facts we are to consider, and we cannot look beyond them. For the purposes of this case they import absolute verity and conclude both parties.

Before the breaking out of the late civil war, the appellant was domiciled in the city of New Orleans. He was a member of a commercial partnership there. There is no proof of any change of domicile subsequently. A domicile once existing continues until another is acquired. A person cannot be without a legal domicile somewhere. Where a change of domicile is alleged, the burden of proof rests upon the party making the allegation.

The cotton covered by the claim in the present case was all purchased by the appellant in the parish of St. Landry, in the State of Louisiana, between the 1st of October, 1862, and the 1st of April, 1863. That territory was then within the rebel lines. The appellant was there acting as the agent of the rebel government in exchanging its bonds for Confederate notes. His office, as such agent, was at Opelousas, in that parish.

On the 6th of April, 1862, Admiral Farragut reached New Orleans with his fleet. On the following day he demanded of the mayor the surrender of the city. No resistance was offered. On the 1st of May transports conveying the troops of General Butler arrived. On the following day their landing was completed. The military occupation of the city by the United States than began, and it continued without interruption down to the close of the war. On the 6th of May the commanding general issued a proclamation (prepared and dated on the 1st), whereby it was declared that 'all rights of property of whatever kind will be held inviolate, subject only to the laws of the United States.' The non-intercourse act of July 13, 1861 (12 Stat. 257), and the President's proclamations of the 16th of August, 1861 (12 Stat. 1262), of the 12th of May, 1862 (12 Stat. 1262), and of the 2d of April, 1863 (13 Stat. 731), need not be particularly adverted to. They have been so often considered by this court in previous cases, that the public and the profession are familiar with them. The parish of St. Landry was also subjugated by the arms of the United States in April, 1863. The cotton in question was thereupon seized, and subsequently sold, and the proceeds paid into the treasury of the United States, where they remain. Those proceeds are the subject of this litigation.

Upon the issuing of General Butler's proclamation, the legal status of New Orleans and its inhabitants, with respect to the United States, became changed. Before that time the former was enemies' territory and the latter were enemies, in all respects as if the pending strife had been a public war between the United States and a foreign belligerent, and the the city had been a part of the country of the enemy, although he conflict was, in fact, only a domestic insurrection of large proportions. The city was blockaded; and the property of its inhabitants, wherever found at sea, was seized, condemned, and confiscated as prize of war. General Butler's proclamation was proof of the subjugation of the city and the re-establishment of the national authority. The hostile character of the territory thereupon ceased, and the process of rehabilitation began. The inhabitants were at once permitted to resume, under the regulations prescribed, their wonted commerce with other places, as if the State had not belonged to the rebel organization. The Venice, 2 Wall. 258. But they were clothed with new duties as well as new rights. It was a corollary from the new condition of things, that they should obey the inhibition of trade with the localities still under the ban of the President's proclamation of the 16th of August, 1861. In this respect they were on the same footing with the inhabitants of the loyal States, abiding in such States, and with the citizens of such States, and foreigners then sojourning in New Orleans. It was not a penal infliction, but was intended for the benefit of the nation in the prosecution of the war. It was a burden incident to the effort the government was making to put down the insurrection. It was the plain duty of the appellant to obey the injunction. Instead of doing so, while his domicile, in the view of the law, was and continued to be at New Orleans, he went or remained within the rebel lines, engaged actively in the service of the rebel government, and was so engaged when and where, as he alleges, he acquired the ownership of the cotton in question.

His contracts for the cotton were clearly illegal and void, and gave him no title. Such has been the ruling of this court in an unbroken series of adjudications. Coppel v. Hall, 7 Wall. 548; United States v. Lane, 8 id. 185; United States9 v. Grossmeyer, 9 id. 72; United States v. Montgomery, 15 id. 395; United States v. Lapine, 17 id. 602; Mitchell v. United States, 21 id. 350.

The result is the same as if the purchases had been made by an agent of the appellant, sent by him from New Orleans, instead of having been made by himself in person.

To hold otherwise would give a premium to a law-breaker, and involve the anomaly of conceding to the offender rights and immunities denied to all the citizens to the loyal States.

Judgment affirmed.


text: Page:Footprints of former men in far Cornwall.djvu/1


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


text: Page:Footprints of former men in far Cornwall.djvu/2


text:
City of Winona v. Cowdrey

ERROR to the Circuit Court of the United States for the Districk of Minnesota.

This was an action against the city of Winona upon certain coupons attached to bonds, referred to in a contract between the city and the Minnesota Railway Construction Company, which is as follows:--

'This agreement, made this twenty-third day of April, 1870, by and between the city of Winona, of the State of Minnesota, and the Minnesota Railway Construction Company, a corporation organized under the law of the State of Minnesota, and now engaged in the construction of the St. Paul and Chicago Railway, witnesseth:--

'That whereas the building of a railroad from St. Paul to Winona is of great public utility and benefit, and a public improvement, which, it is believed, would be particularly beneficial and advantageous to the city of Winona; and whereas said St. Paul and Chicago Railway will connect, by bridge or ferry, at Winona with the La Crosse, Trempealeau, and Prescott Railroad, now being constructed, and will, when both railroads are completed, open and furnish an unbroken line of travel by railroads through Winona, between St. Paul and Milwaukee and Chicago, which also is considered especially beneficial and advantageous to the city of Winona; and whereas, in view of the premises, and as an inducement and part compensation to the Minnesota Railway Construction Company, the city of Winona is willing and roposes to issue and deliver to the said construct on company its bonds to the nominal amount of $100,000, to aid in the building of said railroad from St. Paul to Winona, and, for the purpose of thus securing a line of travel by railroad between the East and the West through said city, as aforesaid, the city of Winona, in consideration of the premises, hereby agrees, the Minnesota Railway Construction Company keeping and performing their agreement as herein set forth, to make, sign, seal, and deliver, for the use and benefit of the said Minnesota Railway Construction Company, its obligations or bonds, is sums of $1,000 each, to the aggregate amount of $100,000, obligating the said city to pay the amount specified therein to Russell Sage and others, of the city and State of New York, or to the bearer, in twenty years from the first day of January, A.D. 1871,-viz., on the first day of January, A.D. 1891,-in the city of New York, with interest at the rate of six per cent per annum; the interest to be paid semi-annually, on the first day of January and July of each year, in the city of New York; and to deposit said bonds with the First National Bank of St. Paul, in the State of Minnesota, to be held by said depositary in escrow or in trust, to be delivered as hereinafter provided.

'The Minnesota Railway Construction Company hereby, on their part, the city of Winona keeping and performing its agreement as herein contained, agree:--

'First, To either, in their own name or that of their successors or assigns, or in the name of the St. Paul and Chicago Railway Company, build and equip a good and substantial railway from the city of St. Paul to the city of Winona (excepting a bridge across the Mississippi River at Hastings), and put it into operation within three years from this date, and to connect at Winona, by bridge or ferry, with the La Crosse, Trempealeau, and Prescott Railroad.

'Second, That said part of raid railway, between a point on the Winona and St. Peter Railroad at or near Minnesota City, in Winona County, and the village of Minneiska, in Wabasha County, shall be built, equipped, and put into operation within one year from this date.

'Third, That the La Crosse, Trempealeau, and Prescott Railroad, from its terminus opposite Winona, as now located and fixed (which terminus shall not be changed without the consent of the city of Winona), to a point on the Milwaukee and St. Paul Railway east of North La Crosse, shall be built, equipped, and put into operation within the year 1870.

'It is further agreed, by and between the parties hereto, that the said bonds are to be, in form, plain unconditional obligations, and substantially of the form and tenor of schedule A, hereto annexed, and are to be executed as soon as practicable, and placed in the custody of said depositary, to be delivered as hereinafter provided.

'It is further agreed, as to the delivery of said bonds, as follows:--

'First, That if the said La Crosse, Trempealeau, and Prescott Railroad is not built, equipped, and put into operation, as aforesaid, between the points aforesaid, within the year 1870, then, and in that event, the said bonds and coupons shall be by said depositary returned to the city of Winona, or to its legally authorized agent.

'Second, That if a railroad from a point on the Winona and St. Peter Railroad, at or near Minnesota City, in Winona County, to Minneiska, in Wabasha County, is not built, equipped, and put into operation, as aforesaid, within one year from this date, then, and in that event, said bonds and coupons shall be by said depositary returned to said city of Winona or its legally authorized agent.

'Third, That if a railroad is not built, equipped, and put into operation from St. Paul to Winona (except the bridge at Hastings), as aforesaid, connecting at Winona, by bridge or ferry, with the La Crosse, Trempealeau, and Prescott Railroad within three years from this date, then, and in that event, the said bonds and coupons shall be by said depositary returned to said city of Winona, or to its legally authorized agent; but in no case shall the said bonds, or any part thereof, be delivered by said depositary to the said Minnesota Railway Construction Company until a truss railroad bridge is constructed across the Mississippi River, at Winona, connecting the said St. Paul and Chicago Railway, or the Winona and St. Peter Railroad, with the La Crosse, Trempealeau, and Prescott Railroad, at the present terminus of the last-named railroad. But if, in each and every of the respects above mentioned, the said railroads, and the several parts of said railroads, are built, equipped, and put into operation within the times and in the manner above agreed, and said railroad bridge constructed as above provided, then, and in that event, and in that event only, shall the said bonds be delivered to said Minnesota Railway Construction Company by said depositary.

'It is further agreed, that, while said bonds are legally held in custody or trust by said depositary, as aforesaid, the interest-coupons, as they mature and become due, are to be delivered to the said construction company.

'It is further agreed, that the city of Winona shall have no cause of action against the Minnesota Railway Construction Company, by reason of the failure to build said lines of railroads, or any part thereof.

'In witness whereof, the said city of Winona has authorized their mayor to sign this instrument in their corporate name, and the city recorder to attest the same with his official signature and the seal of the city, and the board of directors of the Minnesota Railway Construction Company have authorized their president and secretary to sign, seal, deliver the same in their corporate name.

'CITY OF WINONA,

'[SEAL.] By WM. S. DREW, Mayor.

'Attest: CHAS. F. SCHROTH, City Recorder.

'MINNESOTA RAILWAY CONSTRUCTION COMPANY,

'[SEAL.] By RUSSELL SAGE, President.

'Attest: JAMES M. McKINLEY, Assistant Secretary.'

Schedule A, referred to in the foregoing contract, is as follows:-- 'Form of Deed. 'STATE OF MINNESOTA, CITY OF WINONA.

'No. $1,000.

'Know all men by these presents, that the city of Winona, in Winona County, State of Minnesota, is indebted to Russell Sage an others, of the city and State of New York, or bearer, in the sum of $1,000, which they promise to pay to the bearer hereof, on the first day of January, 1891, in the city of New York, with interest thereon from the first day of January, 1871, at the rate of six per cent per annum, payable semi-annually at the Importers' and Traders' National Bank, in the city of New York, on the first day of January and July in each year, on the presentation and surrender of the annexed coupons as they severally become due.

'This bond is one of a series of like tenor and effect issued by the city of Winona, to the amount of $100,000, to aid in the construction of a railroad from St. Paul to Winona.

'In witness whereof, the city of Winona has caused this bond to be sealed, signed, and delivered in their corporate name, by order of the city council of said city, pursuant to their resolutions in this respect passed _____, 1870.

'[SEAL.] THE CITY OF WINONA,

'By _____, Mayor.

'Attest: _____, City Recorder'.

The remaining facts are set forth in the opinion of the court, and it is unnecessary to restate them here.

There was a verdict for the plaintiff, and judgment was entered thereon.

The city of Winona sued out this writ.

Argued by Mr. Thomas Wilson for the plaintiff in error, and by Mr. Charles E. Flandrau for the defendant in error.

MR. JUSTICE DAVIS delivered the opinion of the court.

title: City of Winona v. Cowdrey


text: Talk:City of Winona v. Cowdrey

title: Talk:City of Winona v. Cowdrey


text: Page:Footprints of former men in far Cornwall.djvu/3


text:
City of Winona v. Cowdrey/Opinion of the Court

This suit involves the interpretation of the contract between the city of Winona and the Minnesota Railway Construction Company, bearing date April 23, 1870. It was brought on certain coupons which were attached to the bonds whereof mention is made in that contract, and delivered by the depositary to the company after one-half of them in number and value we e overdue. They were received by the plaintiff below, after their maturity and before the commencement of this suit.

The company stipulated that within three years from that date it would build, equip, and put in operation in its own name, or that of its successors and assigns, or of the St. Paul and Chicago Railway Company, a good and substantial railway from St. Paul to Winona (excepting a bridge across the Mississippi River at Hastings), and connect at Winona by bridge or ferry with the La Crosse, Trempealeau, and Prescott Railroad; that a part of said railway between certain points specifically mentioned should be completed and put in operation within one year; and that the La Crosse, Trempealeau, and Prescott Railroad, from its terminus opposite Winona, should be put in operation to a point on the Milwaukee and St. Paul Railway east of north La Crosse within the year 1870.

It was only by performing the stipulated conditions within the designated periods that the company could acquire a valid title to these evidences of indebtedness. In no case was any part of them to be delivered until a truss railroad bridge should be constructed across the Mississippi River at Winona, connecting the St. Paul and Chicago Railway, or the Winona and St. Peter Railroad, with the La Crosse, Trempealeau, and Prescott Railroad, at the then terminus of the latter.

These are the leading provisions of the contract. Its preamble recites that the construction of a railroad from St. Paul to Winona is of great public utility, and particularly advantageous to the latter city, and discloses that the controlling inducement for furnishing the promised aid to the company is to secure an unbroken line of travel by railroad between the East and West through Winona.

The depositary in whose hands the bonds and coupons were placed delivered them to the construction company March 27, 1872, after the road had been built from St. Paul to the western limits of Winona, and its track connected there with that of the Winona and St. Peter Railroad.

The liability of the city of pay these coupons is denied chiefly upon the ground that there was not such a compliance with the contract by the construction company as would entitle it to the possession of them.

The bill of exceptions shows that evidence was given tending to prove that the roads and parts of road mentioned in the contract had been respectively constructed, equipped, and put in operation within the appointed time, and the verdict of the jury is conclusive upon the questions of fact involved in the issue.

The exceptions to the charge of the court do not each require a special or extended consideration. At the date of the contract, the construction company had, for a certain consideration, agreed with the St. Paul and Chicago company to construct and equip its road between Chicago and St. Paul, and obtain the necessary right of way. It was to receive all gifts, bounties, or aids that might be given by any corporation or municipality to aid in building the projected road. The railroad company sold its road Jan. 3, 1872, to the Milwaukee and St. Paul Railway Company, and the latter was properly held by the court below to be the successor of the construction company within the meaning of the contract. That part of the road which was to be completed within twelve months was equipped and put in operation by the Winona and St. Peter Railroad Company, under a contract with the Chicago and St. Paul Railroad Company, with the assent and approval of the construction company. In our opinion the court below correctly held, that constructing, equipping, and putting in operation the road between St. Paul and Winona by the construction company, the St. Paul and Chicago company, or the assignees of either, was in that regard a sufficient compliance with the contract.

The remaining charge to which exception was taken relates to the connection of the road from St. Paul with the track of the St. Peter Railway within the limits of Winona. The court instructed, that a connection of the track of the last-named railway with the railroad bridge across the river at Winona-said bridge connecting with the La Crosse Railroad at the point named in the contract-was a connection by bridge or ferry within the meaning of that contract, if, after the purchase of the St. Paul and Chicago Railroad by the Milwaukee and St. Paul Railroad Company, the latter company continued to run its cars over the railroad bridge and the Winona and St. Peter Railroad within the limits of the city.

It is contended that building the railway from St. Paul to the western limit of Winona, and uniting it there with the Winona and St. Peter road at a point more than a mile west of the west end of the bridge connecting the latter road with the La Crosse Railroad, was not, in the just sense of the term, a connecting of the road from St. Paul by bridge with the La Crosse Railroad, within the meaning or purview of the contract.

The contract, as we construe it, stipulates that the contemplated connection may be made by means of the Winona and St. Peter Railroad. One of its early provisions declares that the connection between the St. Paul and the La Crosse roads at Winona shall be by means of a bridge or ferry; but a subsequent one is express, that the bonds shall not be delivered until the bridge is constructed across the river at Winona, connecting the St. Paul Railway or the Winona and St. Peter road with the La Crosse roal at the then terminus of the latter. It was, therefore, optional with the construction company to build the St. Paul Railway over the bridge, and form an actual junction with the La Crosse road; or to build it to any point in the city, and make the required connection by means of the Winona and St. Peter road. Either of these modes would secure the object desired by the city, an uninterrupted communication by rail from St. Paul across the river at Winona to the eastern seaboard.

It is contended that the contract is against public policy and without consideration. The obvious answer is, that it was expressly sanctioned by an act of the legislature of the State, and was designed to insure and expedite the construction of works of internal improvement deemed of vital importance to the material interests of the city. Whether it be expedient to invest municipal corporations with authority to aid in building railways, is a question foreign to the present inquiry; but where, as in ths instance, it has been conferred and exercised, and the city has secured the advantages of the contract, the law will not suffer her to escape from its obligations.

Judgment affirmed.


text: Talk:City of Winona v. Cowdrey/Opinion of the Court


text: Page:Footprints of former men in far Cornwall.djvu/4


text:
Board of Supervisors of Wood County v. Lackawana Iron and Coal Company

ERROR to the Circuit Court of the United States for the Western District of Wisconsin.

Submitted on printed arguments by Mr. P. L. Spooner and Mr. S. L. Dixon for the plaintiffs in error, and by Mr. S. U. Pinney for the defendant in error.

MR. JUSTICE SWAYNE delivered the opinion of the court.


text: Talk:Board of Supervisors of Wood County v. Lackawana Iron and Coal Company


text:
Board of Supervisors of Wood County v. Lackawana Iron and Coal Company/Opinion of the Court

This is an action at law brought by the defendant in error to recover the amount due upon certain coupons taken from bonds issued by the plaintiff in error to the Green Bay and Lake Pepin Railroad Company, of which coupons the plaintiff in error was the owner and holder. The coupons were payable to the treasurer of the company or order, and it was not questioned that the plaintiff became their holder bona fide. The bonds and coupons were issued under the authority conferred by the acts of the legislature of the State of March 8, 1867, c. 93, of March 3, 1869, c. 166, and of Feb. 17, 1871, c. 76 (Private and Local Laws of Wisconsin). The two last were amendatory of the first-named act. Every thing touching the issue of the bonds was in conformity to the requirements of these statutes, and, so far as this point is concerned, the validity of the bonds is not denied. Further remarks upon the subject are, therefore, unnecessary. But it i insisted, that before the bonds were issued, and before the contract for their issue was entered into, the acts under which they were issued were repealed by the act of March 8, 1870, c. 210, and the act of March 11, 1872, c. 34. These references are also to the local and private laws of the State. The latter of these acts was amendatory of the former.

There was certainly no express repeal. This is not alleged. The proposition is, that there was such repeal by implication.

This renders it necessary to examine the subject.

The Green Bay and Lake Pepin Railroad Company was incorporated with authority to construct a railway from Green Bay, in Wisconsin, to the Mississippi River. There was no designation of the counties through which it should pass. Prior to the passage of the act of March 11, 1872, c. 34, no work had been done on the line of the road west of New London, a town between the termini of the road. From New London to Grand Rapids, by the line of the road, was about forty-five or fifth miles; and it was forty miles from the latter place to the nearest point on the Milwaukee and St. Paul Railroad. On the 9th of February, 1871, the company submitted its first proposition for the exchange of the stock of the company for the bonds of the county. Grand Rapids and Centralia are in Wood County, opposite to each other, upon the Wisconsin River. The company asked for $200,000 of bonds,-$100,000 to be delivered when the railway was 'graded, tied, and ironed,' from Fort Howard to Grand Rapids; $50,000 when the work was so done from Fort Howard, and a bridge built over the Wisconsin River from Grand Rapids, to Centralia; and the remaining $50,000 when the roadway was so 'graded, tied, and ironed as far west as Yellow River.' If the road were not so built to Grand Rapids by the 1st of January, 1872, the first instalment of the bonds was to be forfeited; and, if not so built to Centralia and Yellow River by the 1st of January, 1873, the residue of the bonds was to be forfeited in like manner.

The proposition was submitted to a popular vote, and duly sanctioned thereby pursuant to law. The company finding itself unable to comply with the first condition in point of time, on the 16th of December, 1871, submitted a further proposition, to the effect that the county should exchange $50,000 of the bonds for stock of the company to the like amount upon the road being so built to Grand Rapids, the claim of the company to these bonds to be forfeited unless the work was done by the 1st of January, 1873. This proposition was also duly sanctioned by the requisite popular vote. This was a modification of the pre-existing contract, by the elongation of the time for the fulfilment of the first condition, and the reduction of the amount of the bonds the company was to receive. As thus modified, the original contract was fulfilled by both parties. The work was done and the bonds were delivered. The amount was $150,000. The coupons upon which this suit was brought were taken from a part of these bonds. Before any thing was done touching the issue of the bonds, the legislature of Wisconsin incorporated 'The Wisconsin Valley Railway Company,' with authority to construct a railroad 'from such point on or near the La Crosse and Milwaukee Railroad, between Kilborne City and the tunnel on said road, as its directors should select, to Wausau, via Grand Rapids.' The line of this road approached Grand Rapids from the west, and the Green Bay and Lake Pepin road from the east. Nothing had been done with respect to the locating or building of either road through Wood County prior to the passage of the act of 1870, and the act amending it, by which it is alleged the repeal was wrought. The act of 1867, under which the bonds were issued, declares that 'it shall be lawful for every county, through any portion of which the Green Bay and Lake Pepin Railway shall run, or any town or incorporated village in such county, to issue and deliver to said company its bonds, payable,' &c., 'as may be agreed upon by and bet een' the company and the designated authorities of the county. The act is entitled 'An Act to authorize the counties and towns through which the Green Bay and Lake Pepin Railroad passes, to aid in its construction.' The amendatory acts of 1869 and 1871, except the third section of the latter act, are confined to details with respect to the proceedings of the county. That section will be presently considered in another connection.

The act of March 8, 1870, relied upon by the plaintiff in error, is entitled 'An Act to authorize the county of Wood to aid in the construction of railroads.' The amendatory act of 1872 only restricts and lessens the amount of the aid authorized to be given by the original act, and abridges the time of the notice for the popular vote. This latter act may, therefore, be laid out of view. The prior act, in the first section, declares that bonds may be issued 'for the purpose of aiding in the construction of the Wisconsin Valley Railroad, from any point on the line of the Milwaukee and St. Paul Rilway to the city of Grand Rapids or the village of Centralia in the county of Wood, or in the construction of any other railway of greater length which may first be built from any other direction to the said city of Grand Rapids or the village of Centralia.' The second section authorizes the county to contract for aid to 'any railroad company that shall undertake the construction of a railroad from any point on the line of the Milwaukee and St. Paul Railway to the said city of Grand Rapids or village of Centralia, or with any other railroad company that shall propose to construct from another direction a railroad of greater length into the said city or village,' &c. The act of 1867 is confined to the Green Bay and Lake Pepin company, and the aid specified was to be given upon its running through 'any portion' of Wood County, whether it did or did not go to Grand Rapids or Centralia. The act of 1870, on the other hand, applies to all such companies as should construct roads to one or the other of those places.

Looking at the face of the statutes, there is certainly no repugnancy between them. Their scope and purposes are distinct and different, and they may well stand together. The fact that the Green Bay and Lake Pepin company chose to take their road to Grand Rapids and Centralia does not affect the question. They could not by an act in pais give a repealing effect to the statute of 1870, which it would not have had if the act in pais had not been done.

The parties concerned in the issue of the bonds seem to have had no idea that there had been any such repeal as is contended for. This must have been the view of the railroad company when it submitted its two propositions of Feb. 9, 1871, and Dec. 16, 1871, when it built the road, and when it received the bonds; of the voters of the county, when they gave their sanction to those propositions, and authorized the bonds to be issued; and of the county authorities, when they called for the vote, announced the result, and issued and delivered the bonds to the company accordingly. The legislature must have had the same understanding. The act of Feb. 17, 1871, names the act of 1867 by its title, and amends it. Why amend, if it had been repealed by the prior act in question of 1870? Again: the third section of this amendatory act declares that the act published March 8, 1870 (c. 24, Gen. Laws), entitled 'An Act to encourage the construction of railroads in this State,' 'shall not be construed as repealing or otherwise affecting the act to which this act is amendatory,' & c. Why this careful provision against the repeal of the act amended, if the act of 1870 had already repealed it? Again: the act of March 17, 1873, amending the act entitled 'An Act to incorporate the Green Bay and Lake Pepin Railway,' enacts that 'the counties of Brown and Wood, each of which has issued $150,000 of bonds in aid of the construction of the Green Bay and Lake Pepin Railway,' and all other towns and villages which had issued bonds for the same purpose 'shall, so long as they respectively continue to hold and own the stock of said railway company issued or to be issued in exchange for such bonds, in addition to the right to vote for all other directors of said company, have the exclusive right of and among themselves, by the vote of a majority of the shares owned by them collectively, to elect one of the directors of said company, who shall be styled the municipal director,' &c. If the act of 1867 had been repealed, as is claimed, the bonds were, as is now maintained, utterly void, and the holders of the stock had no title, and consequently could have no right to vote upon it. But, on the contrary, the existence and validity of the act when the bonds and stock were issued, and the validity of the title of the rightful holders of both, are affirmed by the clearest implication. None could be stronger; and what is so implied in a statute, contract, will, pleading, or other instrument of writing, is as effectual as what is expressed. United States v. Babbit, 1 Black, 61. Repeal by implication is not favored in the law. It is held to occur only where different statutes cover the same ground, and there is a clear and irreconcilable conflict between the earlier and the later. The rule, as thus stated, is so well settled, that discussion and the citation of authorities are unnecessary.

The statute-book of 1870 shows the spirit by which the legislature was then animated, with respect to the policy of permitting aid to be given to railroad companies by means of municipal bonds. It was in favor of the largest latitude. Chapter 24, before mentioned, is a striking instance of such legislation. It permitted 'any town, incorporated city, or village, into, near to, or through' which the line of any railroad should be located, to take the stock of the company to such amount as should be authorized by a majority of the voters,-there was no other check or limit prescribed,-and to pay for it with a like amount of town, city, or village bonds, authorized by the vote of such majority to be issued for that purpose. It was not a time when there was a disposition to repeal any act of the character of the act of 1867. The current was altogether in the other direction. The reaction set in act a later period. The act of 1867 was in no wise affected by the act of 1870. There was, therefore, no repeal of the latter by implication or otherwise. It is suggested further, in behalf of the plaintiff in error, that the amount found by the verdict of the jury, and for which the judgment was rendered, includes interest on the coupons, which, it is alleged, is contrary to a statute of the State in force when the bonds were issued. It is sufficient to say upon this subject, that the objection, not having been made in the court below, cannot be taken here. To hold otherwise would involve the exercise on our part of original instead of appellate jurisdiction. This is not permitted to us.

The instructions given to the jury by the learned judge who tried the case in the Circuit Court were correct.

Judgment affirmed.

MR. JUSTICE DAVIS, being interested in the question, as one of the executors of a will, took no part in the decision of this case.


text: Talk:Board of Supervisors of Wood County v. Lackawana Iron and Coal Company/Opinion of the Court


text:
Page:Dictionary of National Biography volume 60.djvu/130

 ‘Theatrum Poetarum,’ but Phillips was certainly in error. The plot appears to be drawn from Barnabe Riche's ‘Farewell to Militarie Profession’ (1581). The younger Hazlitt included it in his edition of Webster's works.

Two other plays in which Webster had a hand are lost. On 13 Sept. 1624 there was licensed for publication ‘a new tragedy’ called ‘A late Murder of the Son upon the Mother’ by Ford and Webster. Webster was also the author of a play called ‘Guise,’ which was doubtless a tragedy founded, like Marlowe's ‘Massacre of Paris,’ on contemporary French history. Webster refers to the work when dedicating his ‘Devil's Law Case’ to Sir Thomas Finch. Mention of a play of the name is made by Henslowe in his ‘Diary’ in 1601, and Collier unwarrantably inserted the word ‘Webster’ after this entry. Webster's play has not survived, and nothing is positively known of its date of composition.

The best collection of original editions of Webster's plays belongs to the Duke of Devonshire. In 1830 Webster's works were collected in four volumes by Alexander Dyce. A new issue of Dyce's edition, revised and corrected, appeared in 1857, and in one volume in 1866. William Hazlitt, the critic's son, edited an edition in four volumes in 1856.

Although Nathan Drake and some other eighteenth-century critics had detected in Webster ‘a more than earthly wildness,’ it was Charles Lamb who first recognised his surpassing genius as a writer of tragedy. Subsequently Hazlitt, and at a later period Mr. Swinburne, bore powerful testimony to Lamb's justness of view. Webster is obviously a disciple of Shakespeare, and of all his contemporaries Webster approaches Shakespeare nearest in tragic power. But his power is infinitely circumscribed when it is compared with Shakespeare's. His knowledge of his master's work, too, is sometimes visible in a form suggestive of plagiarism. His masterpieces are liable to the charge that they present the story indecisively and at times fail in dramatic point and perspicuity. Many scenes too strongly resemble dialogues from romances to render them effective on the stage. Webster lacked Shakespeare's sureness of touch in developing character, and his studies of human nature often suffer from over-elaboration. With a persistence that seems unjustifiable in a great artist, Webster, moreover, concentrated his chief energies on repulsive themes and characters; he trafficked with an obstinate monotony in fantastic crimes. Nevertheless he had a true artistic sense. He worked slowly, and viewed with abhorrence careless or undigested work. ‘No action,’ he wrote in the preface to ‘The Devil's Law Case,’ ‘can ever be gracious where the decency of the language and ingenious structure of the scene arrive not to make up a perfect harmony.’ It is proof of his high poetic spirit that he was capable of illuminating scenes of the most repellent wrongdoing with miraculous touches of poetic beauty such as only Shakespeare could rival. Furthermore, Webster, despite all the vice round which his plots revolve, is rarely coarse. In depicting the perversities of passion he never deviated into pruriency, and handled situations of conventional delicacy with dignified reticence. Webster's dialogue (he seldom essayed soliloquy) abounds in rapid imagery. His blank verse is vigorous and musical. In its general movement it resembles that of Shakespeare's later plays. It is far less regular than Marlowe's, but somewhat more regular than Fletcher's. At its best his language has something of the ‘happy valiancy’ which Coleridge detected in Shakespeare's ‘Antony and Cleopatra;’ it has consequently no small share of the obscurity which characterises Shakespeare's later work. This feature in Webster impressed his contemporaries, one of whom, Henry FitzGeoffrey, applied to him the epithet ‘crabbed,’ and declared that he wrote ‘with his mouth awry.’ But, as another contemporary, Middleton, suggested with surer insight, the force of Webster's tragic genius, despite the occasional indistinctness of his utterance and other defects of execution, allows no doubt of the essential greatness of his dramatic conceptions.

The fame of Webster has spread to France and Germany. The ‘Duchess of Malfy’ and ‘The White Devil’ were published with an appreciative preface in French translations by Ernest Lafond at Paris in 1865, and Frederick Bodenstedt devoted the first volume of his ‘William Shakespeares Zeitgenossen und ihre Werke’ (Berlin, 1858) to a German rendering of extracts from all Webster's plays.

[Dyce's Introduction to his edition of Webster's Works, 1866; Genest's Account of the Stage, x. 16–17; Ward's History of English Dramatic Literature, new edit. 1899, iii. 51 seq.; Fleay's Biographical Chronicle of the English Drama; Lamb's Selections; Hazlitt's Elizabethan Dramatic Literature; William Hazlitt's (the younger) introduction to his edition of Webster's Works, 1857; Mr. J. A. Symonds's preface to the ‘Mermaid’ edition of Selections from Webster; Mr. Gosse's Seventeenth-Century Studies containing an admirable essay on Webster; Mr. Swinburne's extravagantly eulogistic essay in the Nineteenth Century, June 1886; Mr. Wil- William


text: Page:Footprints of former men in far Cornwall.djvu/5


text:
United States v. Ferrary

ERROR to the Circuit Court of the United States for the Eastern District of Tennessee.

This is an action on a distiller's bond given to the United States under the seventh section of the act of July 20, 1868, 15 Stat. 127. The tenth section of that is as follows:--

'Immediately after the passage of this act, every assessor shall proceed, at the expense of the United States, with the aid of some competent and skilful person, to be designated by the Commissioner of Internal Revenue, to make survey of each distillery registered, or intended to be registered, for the production of spirits in his district, to estimate and determine its true producing capacity, and in like manner shall estimate and determine the capa ity of any such distillery as may hereafter be so registered in said district, a written report of which shall be made in triplicate, signed by the asessor and the person aiding in making the same, one copy of which shall be furnished to the distiller, one retained by the assessor, and the other immediately transmitted to the Commissioner of Internal Revenue. If the Commissioner of Internal Revenue shall, at any time, be satisfied that such report of the capacity of a distillery is in any respect incorrect, or needs revision, he shall direct the assessor to make, in like manner, another survey of said distillery; the report of said survey shall be executed in triplicate, and deposited as hereinbefore provided.'

In the fall of 1870, Ferrary, the principal in the bond, proposed to commence distilling whiskey at Louisville, Tenn., within the second collection district of that State. Nov. 10, 1870, an assistant assessor of that district, with a person to aid him, designated by the Commissioner of Internal Revenue, made the survey agreeably to the requirements of the foregoing section, measured the tubs, and estimated the true producing capacity of the distillery. Triplicates of the report of this survey, made under the assessor's direction, were signed by him and the person aiding him; one copy was retained by him, another sent to the Commissioner of Internal Revenue, and the third furnished to Ferrary. By this survey and report the producing capacity of the distillery was estimated upon the basis of three gallons of whiskey for each bushel of corn.

The bond now in suit was entered into Nov. 8, 1870. It is conditioned 'in all respects faithfully to comply with all the provisions of law in relation to the business and duties of distillers, and pay all penalties incurred,' &c., and recites Ferrary's intention to be engaged in distilling from Nov. 15. The exceptions state that he manufactured whiskey from Dec. 16, 1870 (the date of the approval of the bond), to March 10, 1871. Nov. 18, 1870, the Commissioner of Internal Revenue officially informed the assessor that the report of survey, dated Nov. 10, 1870, was 'regarded as erroneous in respect to the dry inches and the yield of spirit to the bushel. According to the ruling of this office, three dry inches for rye and seven for corn are the true allowances for tubs sixty inches or under in depth;' adding, that if the distillation was 'by direct steam, the yield should be three and a half gallons to the bushel.' The assessor was accordingly ordered to make another survey, as provided in sect. 10, before referred to; and the letter concluded, 'as no new measurements are required,' no expense was to be allowed. The second report thus demanded was made Nov. 22, 1870, with the desired amendments, fixing the producing capacity at three and a half gallons per bushel. In making this new estimate and determination of the producing capacity, the officers did not again visit the distillery, nor make any new measurements of any part thereof, but gave all the old measurements of the former report. Triplicate copies of this last report were made; one retained by the assessor, and one sent to the commissioner. The assessor's clerk swore to having either mailed or delivered the third copy to Ferrary, and other evidence was introduced tending to show that it reached him; but he denied receiving or having any knowledge of it till about the time he closed his distillery, in March, 1871. His mail-clerk and other employees testified in a manner tending to negative its delivery at the distillery.

Assessments were made for December, 1870, January, February, and March, 1871, based upon the estimates of the second report of survey; but the evidence showed that if they had been based upon the first, there would still have been a deficiency, for which Ferrary would be liable to be assessed. After instructions not excepted to, the presiding judge told the jury that if the second report of survey was not actually made by the assessor, or assistant assessor, and his esignated assistant, in like manner with the survey which was the foundation of the first report, then said second report of survey was invalid, and any assessments based thereon would also be invalid, and the plaintiff could not recover thereon in this action. The plaintiff excepted to this instruction, as well as to an instruction that 'if the jury should be satisfied from the evidence that a second survey had not been made, or that a second copy of the same was not furnished Ferrary, then their verdict must be for the defendants.' The plaintiff asked the judge to instruct the jury: 1st, That the first report of survey was valid and binding until the same was abrogated by authority of law; and that was only when defendant was furnished with a copy of resurvey or second survey. 2d, That, if the copy of the second survey ordered was furnished to the defendant, he would be bound by it; but if he never received it, and continued to operate his distillery under the first one, then he would be bound by the first survey, of which he admitted having received a copy. These instructions were refused, upon the ground that no assessment was based on the first survey. An exception was taken to such refusal.

The jury found a verdict for the defendants; and, judgment having been rendered thereon, the United States sued out this writ of error.

Argued by Mr. Assistant Attorney-General Smith for the plaintiff in error, and by Mr. E. C. Camp for the defendant in error.

MR. JUSTICE STRONG delivered the opinion of the court.

title: United States v. Ferrary


text: Talk:United States v. Ferrary

title: Talk:United States v. Ferrary


text: Page:Footprints of former men in far Cornwall.djvu/6


text:
United States v. Ferrary/Opinion of the Court

The act of July 20, 1868, which imposes taxes on distilled spirits and tobacco, directs that there shall be levied and collected on all distilled spirits on which the tax then prescribed by law had not been paid a tax of fifty cents on each and every proof gallon, to be paid by the distiller, owner, or person having possession thereof, before removal from distillery warehouse. It also declares that every proprietor or possessor of a still, distillery, or distilling apparatus, shall be jointly and severally liable for the taxes imposed by law on the distilled spirits produced therefrom. To determine the quantity of spirits produced, three returns in each month are required to be made to the assessor, stating the quantity and kind of materials used, and the number of wine gallons and proof gallons made and placed in warehouse. These returns it is made the duty of the assessor to examine, and he is required to make assessments for deficiencies. The twentieth section of the act also enacts that the quantity of spirits returned, together with the deficiency assessed, shall in no case be less than eighty per cent of the producing capacity of the distillery, as estimated under the former provisions of the act. Thus a liability is imposed upon the distiller of a tax of fifty cents upon eighty per cent, at least, of the producing capacity of the distillery. And such capacity is ascertained and information of it is given to the distiller before he commences his manufacture. A survey is made is his distillery, and an estimate is based on the survey of its true producing capacity, one copy of which is furnished to the Commissioner of Internal Revenue, one is retained by the assessor, and one is given to the distiller himself. These requirements of the law respecting the survey and the estimate were complied with in the present case. A survey of Ferrary's distillery, together with an estimate of the producing capacity, was made on the 10th of November, 1870, and a copy of it was furnished to him. He had previously-to wit, on the eighth day of the same month given the bond upon which this suit was brought (the other defendants being his sureties), conditioned for faithful compliance with all the provisions of law in relation to the duties and business of distillers, and on the sixteenth day of the same month he commenced distilling. So long as that survey and estimate remained unchanged, we think they conclusively determined the producing acpacity of the disti lery, and fixed the minimum tax due from the distiller. The bill of the exceptions, however, shows that on the 18th of November the Commissioner of Internal Revenue directed the assessor to make another survey, stating in his letter that no new measurements were necessary, and, consequently, that no expense was to be allowed or incurred. The commissioner's object in giving the direction, as plainly appears from his order, was to obtain, not a new survey, but a new estimate of producing capacity, founded on the prior survey and measurements. No new survey was made under it, and no new estimate is proved to have been given to the distiller. It must, therefore, be conceded that his liability for taxes was not affected by it, and that the assessor was not authorized to make any assessment founded on any other survey or estimate than the one of Nov. 10, 1870. But what then? That survey and estimate remained in force. An abortive attempt to make a new estimate to take the place of the former cannot have the effect to annul it. If it could, the distiller would escape from any tax measured by the producing capacity of his distillery, though under the act of Congress; without an ascertainment of that, he is not an liberty to distil at all. The first survey and estimate was valid and binding, as we have said, until it was abrogated by authority of the law, and it could only be abrogated by a new survey and estimate ordered by the commissioner, a copy of which was furnished to the distiller. Thus the Circuit Court was asked to instruct the jury, and we think there was error in refusing to give the instruction asked. There was error, also, in the refusal to affirm the other proposition of the plaintiffs, which was, 'that if the copy of the second report ordered was furnished the defendant, no matter how, so he received it, he would be bound by it; but if he never received it, and continued to operate his distillery under the first one, then he would be bound by the first survey, of which he admits having received a copy.' There was also error in the instructions actually given to the jury, as well as in the refusal to give that asked by the plaintiffs.

The learned judge evidently confounded the survey required by the tenth section of the act of Congress with the estimate and determination of producing capacity calculated from the survey. Hence he instructed the jury, that if the second report of survey, of which there was some evidence, was not actually made by the assessor or assistant assessor, and his designated assistant, in like manner with the survey made as the foundation of the report of survey first made, the second report was invalid, and any assessment against the distiller based thereon would be invalid, and the plaintiffs could not recover thereon in this action. To this he added, that if the jury were satisfied from the evidence that a second survey had been made, or that a copy of the same had been furnished to Ferrary, the distiller, their verdict must be in favor of the defendants. This was misleading. There was no pretence that a second survey had been made. None was contemplated by the order of the commissioner. That order expressly stated that no new measurements were required. All that was done was forming a corrected estimate, resting on the first measurements. If the corrected estimate was inoperative because of failure to furnish the distiller with a copy of it, his liability for the taxes, determined by the survey that was made, and the estimate based thereon, remained undisturbed. The suit was not founded on an inoperative assessment, as the court seems to have assumed. It was brought on the distiller's bond; and the breach averred was non-compliance with the provisions of the law in relation to the duties and business of distillers, one of which was the payment of taxes legally assessed against him. Ferrary had full information of the sums due from him. The law fixed the rate at fifty cents for each gallon of spirits produced, and the survey and estimate which was furnished him informed him of the producing capacity of his distillery, and made it his duty to pay the tax on at least eighty per cent of that. Thus the law fixed both the rate and amount. If the assessor claimed more, without warrant, his claim did not relieve Ferrary from the duty of paying what was due, the amount prescribed by the law. So the jury should have been instructed.

Judgment reversed, and a venire de novo awarded.


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


text:
Donaldson Assignee v. Farwell

ERROR to he Circuit Court of the United States for the Eastern District of Wisconsin.

Emanuel Mann, a merchant doing business at Richfield, a small village on the St. Paul Railway, filed, May 24, 1872, his petition, in the District Court of the United States for the Eastern District of Wisconsin, to be declared a bankrupt. He was duly adjudged a bankrupt the sixth day of June then next ensuing, and the plaintiff was, on the first day of the following July, appointed his assignee.

In the month of April of that year the defendants sold, at Chicago, to Mann, on credit, merchandise amounting in value to $5,000. The last of the invoices bears date the 17th of that month. His son was the agent in making the purchase, and directed the goods to be shipped to Milwaukee, stating that it was his intention to have them hauled from there to Richfield. He knew that his father was then, and for two or three years before had been, insolvent, and he testified, on the trial, that at the time of the purchase he did not expect that his father would pay for the goods, that he did not expect to pay for them himself, and that his object in having them sent to Milwaukee was to place them in the hands of one Schram, in order that they should be there disposed of and the proceeds paid to some creditors of his father, who had sold him produce and advanced him money. The goods were shipped to 'E. Mann, Milwaukee,' conformably to the directions. They were, on their arrival, sent to Schram's store. Mann was reputed to be solvent. The defendants had no notice of his insolvency until the last days of May. On the 5th of June, ascertaining that a large quantity of the goods was in the loft of a store in Milwaukee, they took possession of them. They subsequently found the remaining goods, with the exception of $100 in value, in the store of Mann, at Richfield, and, after formally demanding them of the assignee, took and shipped them to Chicago. This action is brought by the assignees to recover the value of them.

The court gave the jury a general charge, to the following parts of which the plaintiff excepted:--

'The sale made by the defendants passed the title in the property to the bankrupt, but it passed a defeasible title; that is to say, it could be rendered inoperative as the instance of the vendors, Farwell & Co.

'If the bankrupt retained the property at the time of the filing of the petition in bankruptcy, the title passed to the assignee, and, as we think, the weight of authority is it passed as defeasible and not as an absolute title, with the right still on the part of the vendors to reclaim the property, provided it was done within a reasonable time after the sale, and after knowledge of the fraud which had been perpetrated.'

There was a verdict for the defendants. Judgment having been rendered thereon, the assignee sued out this writ of error.

Argued by Mr. W. P. Lynde for the plaintiff in error.

There was in this transaction no artified to mislead the vendor, and no false pretences; consequently there was no fraud. Whittaker v. Shackleton, 10 Ch. App. Ca. 449; Backentoss v. Spicker, 31 Penn. St. 326. While an intention not to pay is dishonest, it is not fraudulent. 6 Watts, 34; 6 Wend. 81. The vendor has his remedy by an action on the contract.

Nor does insolvency make a sale voidable after delivery of the goods sold. 6 Wend. 81; 2 Mason, 240.

Mann was the owner of these goods at the time the bankruptcy proceedings were commenced, and could have sold them and given a perfect title. His title was absolute, and became vested in his assignee under the fourteenth section of the Bankrupt Act.

Even if the purchase was fraudulent, the vendor had neither a legal nor an equitable right in the property until he had annulled the contract of sale. He had a mere jus ad rem. Having taken no steps to annul the contract and reclaim the goods until after the commencement of proceedings in bankruptcy, by which all the rights of property, with all the power and authority of the bankrupt over it, had passed to the assignee, the vendor could no longer rescind.

The assignee stands in the position of a bona fide purchaser, and his title is not subject to be defeated by any action by the vendor of the bankrupt. Archbold on Bankruptcy, 202; Milwood v. Forbes, 3 Esq. 171; Sinclair v. Stevenson, 10 Moore, 46; 2 Bing. 514; Haswell v. Hunt, 59 T. R. 231; Bank of Leavenworth v. Hunt, 11 Wall. 391.

Mr. E. Mariner, contra.

MR. JUSTICE DAVIS delivered the opinion of the court.

title: Donaldson Assignee v. Farwell


text: Talk:Donaldson Assignee v. Farwell

title: Talk:Donaldson Assignee v. Farwell


text:
Donaldson Assignee v. Farwell/Opinion of the Court

The instructions present the questions of law arising upon the facts which this controversy involves. The doctrine is now established by a preponderance of authority, that a party not intending to pay, who, as in this instance, induces the owner to sell him goods on credit by fraudulently concealing his insolvency and his intent not to pay for them, is guilty of a fraud which entitles the vendor, if no innocent third party has acquired an interest in them, to disaffirm the contract and recover the goods. Byrd v. Hall, 2 Keyes, 647; Johnson v. Monell, id. 655; Noble v. Adams, 7 Taunt. 59; Kilby v. Wilson, Ryan & Moody, 178; Bristol v. Wilsmore, 1 Barn. & Cress. 513; Stewart v. Emerson, 52 N. H. 301; Benjamin on Sales, sect. 440, note of the American editor, and cases there cited.

Here the vendors exercised the right of rescission shortly after the sale in question, and as soon as they obtained knowledge of the fraud. If, therefore, this controversy were between Mann and them, it is clear that he would not be entitled to recover.

The assignment relates back to the commencement of the proceedings in bankruptcy, and vests, by operation of law, in the assignee the property of the bankrupt, with certain specified exceptions, although the same be then attached. It also dissolves any attachment made within four months next preceding the commencement of the proceedings. If there be no such liens, and the property has not been conveyed in fraud of creditors, he has no greater interest in or better title to it than the bankrupt. Only the defeasible title of the latter to the goods in controversy passed to the assignee, and it was determined by a prompt disaffirmance of the contract.

Judgment affirmed.


text:
Page:Footprints of former men in far Cornwall.djvu/8

 WILLIAM CLOWES AND SONS, LIMITED, LONDON AND BECCLES.


text: Talk:Donaldson Assignee v. Farwell/Opinion of the Court


text:
Heydenfeldt v. Daney Gold and Silver Mining Company

ERROR to the Supreme Court of the State of Nevada.

This is an action of ejectment brought by Heydenfeldt in the District Court of the First Judicial District of Nevada, against the Daney Gold and Silver Mining Company. The case was tried by the court, which found the following facts:--On the fourteenth day of July, 1868, the State of Nevada issued to one William Webelhuth its patent for the west half of the south-west quarter of section 16, township 16 north, range 21 east (lying in Lyon County, State of Nevada), Mount Diablo base and meridian, containing eighty acres, according to the official plat of the survey of public lands as made by the United States surveyor-general for the district of Nevada; which said patent was recorded in the recorder's office of the county of Lyon on the twenty-fifth day of July, 1868, and was issued by the State authorities, under and by virtue of the statute of Nevada, conveying lands assumed to have been granted to the State by the act of Congress approved March 21, 1864, entitled 'An Act to enable the people of the Territory of Nevada to form a State government upon certain conditions.'

On the eighteenth day of August, 1873, William Webelhuth, by deed of conveyance duly signed, sealed, and acknowledged, conveyed the same premises to one Philip Kitz, which deed was recorded in the recorder's office of the county of Lyon Jan. 13, 1874.

On the ninth day of January, 1874, Philip Kitz, by deed duly signed, sealed, and acknowledged, conveyed the same premises to this plaintiff, which said deed was duly recorded in the recorder's office of the county of Lyon on the same day.

The defendant is in the possession of the premises. The plaintiff, prior to bringing this action, demanded the possession thereof, but the same was refused.

On the second day of March, 1874, the United States, by its proper authorities, granted to the defendant, by its patent, in due and regular form, lot No. 72, embracing a portion of section 16, in township 16 north of range 21 east, Mount Diablo meridian, in the Devil's Gate mining district, in the county of Lyon and State of Nevada, in the district of lands subject to sale at Carson City, embracing thirteen (13) acres and seventy-eight one hundredths (78/100) of an acre, more or less, with the exclusive right of possession and enjoyment of all the land included within the exterior lines of the survey of said premises not expressly excepted, and of two thousand linear feet of Mammoth Lode ledge, vein, or deposit for said two thousand feet therein throughout its entire depth, &c., which said grant by the patent covers and includes the lands and premises sought to be recovered by the plaintiff from the defendant in this action, and which said patent was so issued to the defendant under and by virtue of the act of Congress approved July 26, 1866, entitled 'An Act granting the right of way to ditch and canal owners over the public land, and for other purposes;' the act amendatory thereof, approved July 9, 1870, and the act approved May 10, 1872, entitled 'An Act to promote the development of the mining resources of the United States.'

The land in controversy is mineral land, containing precious metals, and the defendant is in possession and is conducting and carrying on the business of mining thereon, having in the prosecution of mining erected and constructed improvements of the value of over $80,000.

In 1867, and prior to the date of the survey or approval of the survey of section 16, township 16 north, range 21 east, by the United States, the defendant's grantors and predecessors in interest had entered upon the premises described by plaintiff in his complaint for mining purposes, and had claimed and occupied the same in conformity to the laws, customs, and usages of miners in the locality and mining district in which said premises are situated, and were so possessed and engaged in mining thereon when the said land was first surveyed, and when the State of Nevada issued its patent as aforesaid to William Webelhuth.

Thereupon, as conclusions of law, the court found,--

The act of Congress approved March 21, 1864, enabling the people of the Territory of Nevada to form a constitution, &c., under and by virtue of which act the State of Nevada selected the lands, and sold and conveyed the same to the predecessors in interest of the pliantiff, did not constitute a grant in praesenti, but an inchoate, incomplete grant until the premises were surveyed by the United States, and the survey properly approved.

Said survey and the approval thereof not having been made prior to the entry thereon and claim thereto by defendant's predecessors in interest for mining purposes, the same was not by said act of Congress, or in any other manner, ever granted by the United States to the State of Nevada.

The entry of defendant's grantors thereon for mining purposes, and their rights thereto having become established prior to the survey of said section by the United States, the said premises were not included within, and did not pas to the State of Nevada, by the granting clause contained in said act of Congress of March 21, 1864, but, on the contrary, were excluded therefrom by reason of their having been previously possessed and occupied by defendant's grantors for mining purposes, in conformity with the mining laws, rules, and customs of miners in the locality where the same was situated, and in conformity with the act of Congress approved July 26, 1866, granting the right of way to ditch and canal owners over the public lands, and for other purposes.

Thereupon judgment was rendered for the defendant. The Supreme Court of Nevada having affirmed it, the plaintiff sued out this writ of error.

Submitted on printed arguments by Mr. W. E. F. Deal for the plaintiff in error, and by Mr. C. E. De Long for the defendant in error.

MR. JUSTICE DAVIS delivered the opinion of the court.


text: Talk:Heydenfeldt v. Daney Gold and Silver Mining Company


text:
Heydenfeldt v. Daney Gold and Silver Mining Company/Opinion of the Court

The validity of the patent from the State under which the plaintiff claims title rests on the assumption that sections 16 and 36, whether surveyed or unsurveyed, and whether containing minerals or not, were granted to Nevada for the support of common schools by the seventh section of the Enabling Act, approved March 21, 1864, 13 Stat. 32, which is as follows: 'That sections numbered 16 and 36 in every township, and where such sections have been sold or otherwise disposed of by any act of Congress, other lands equivalent thereto, in legal subdivisions of not less than one quarter-section, and as contiguous as may be, shall be, and are hereby, granted to said State for the support of common schools.'

This assumption is not admitted by the United States, who, in conformity with the act of Congress of July 26, 1866, 14 id. 251, issued to the defendant a patent to the land in controversy, bearing date March 2, 1874. Which is the better title is the point for decision. As it has been the settled policy of the government to promote the development of the mining resources of the country, and as mining is the chief industry in Nevada, the question is of great interest to her people.

It is true that there are words of present grant in this law; but, in construing it, we are not to look at any single phrase in it, but to its whole scope, in order to arrive at the intention of the makers of it. 'It is better always,' says Judge Sharswood, 'to adhere to a plain common-sense interpretation of the words of a statute, than to apply to them refined and technical rules of grammatical construction.' Gyger's Estate, 65 Penn. St. 312. If a literal interpretation of any part of it would operate unjustly, or lead to absurd results, or be contrary to the evident meaning of the act taken as a whole, it should be rejected. There is no better way of discovering its true meaning, when expressions in it are rendered ambiguous by their connection with other clauses, than by considering the necessity for it, and the causes which induced its enactment. With these rules as our guide, it is not difficult, we think, to give a true construction to the law under consideration.

Congress, at the time, was desirous that the people of the Territory of Nevada should form a State government, and come into the Union. The terms of admission were proposed, and, as was customary in previous enabling acts, the particular sections of the public lands to be donated to the new State for the use of common schools were specified. These sections had not been surveyed, nor had Congress then made, or authorized to be made, any disposition of the national domain within that Territory.

But this condition of things did not deter Congress from making the necessary provision to place, in this respect, Nevada on an equal footing with States then recently admitted. Her people were not interested in getting the identical sections 16 and 36 in every township. Indeed, it could not be known until after a survey where they would fall, and a grant of quantity put her in as good a condition as the other States which had received the benefit of this bounty. A grant, opera ing at once, and attaching prior to the surveys by the United States, would deprive Congress of the power of disposing of any part of the lands in Nevada, until they were segregated from those granted. In the mean time, further improvements would be arrested, and the persons, who prior to the surveys had occupied and improved the country, would lose their possessions and labor, in case it turned out that they had settled upon the specified sections. Congress was fully advised of the condition of Nevada, of the evils which such a measure would entail upon her, and of all antecedent legislation upon the subject of the public lands within her bounds. In the light of this information, and surrounded by these circumstances, Congress made the grant in question. It is ambiguous; for its different parts cannot be reconciled, if the words used receive their usual meaning. Schulenberg v. Harriman, 21 Wall. 44, establishes the rule that 'unless there are other clauses in a statute restraining the operation of words of present grant, these must be taken in their natural sense.' We do not seek to depart from this sound rule; but, in this instance, words of qualification restrict the operation of those of present grant. Literally construed, they refer to past transactions; but evidently they were not employed in this sense, for no lands in Nevada had been sold or disposed of by any act of Congress. There was no occasion of making provision for substituted lands, if the grant took effect absolutely on the admission of the State into the Union, and the title to the lands then vested in the State. Congress cannot be supposed to have intended a vain thing, and yet it is quite certain that the language of the qualification was intended to protect the State against a loss that might happen through the action of Congress in selling or disposing of the public domain. It could not, as we have seen, apply to past sales or dispositions, and, to have any effect at all, must be held to apply to the future.

This interpretation, although seemingly contrary to the letter of the statute, is really within its reason and spirit. It accords with a wise public policy, gives to Nevada all she could reasonably ask, and acquits Congress of passing a law which in its effects would be unjust to the people of the Territory. Besides, no other construction is consistent with the statute as a whole, and answers the evident intention of its makers to grant to the State in praesenti a quantity of lands equal in amount to the 16th and 36th sections in each township. Until the status of the lands was fixed by a survey, and they were capable of identification, Congress reserved absolute power over them; and if in exercising it the whole or any part of a 16th or 36th section had been disposed of, the State was to be compensated by other lands equal in quantity, and as near as may be in quality. By this means the State was fully indemnified, the settlers ran no risk of losing the labor of years, and Congress was left free to legislate touching the national domain in any way it saw fit, to promote the public interests.

It is argued, that, conceding the soundness of this construction, the defence cannot be sustained, because the land in controversy was not actually sold by direction of Congress until after the survey. This position ignores a familar rule in the construction of statutes, that they must be so construed as to admit all parts of them to stand, if possible. 1 Bouv. Inst. p. 42, sect. 7. The language used is, 'sold or otherwise disposed of by any act of Congress.' The point made by the plaintiff would reject a part of these words, and defeat one of the main purposes in view. Congress knew, as did the whole country, that Nevada was possessed of great mineral wealth, and that lands containing it should be disposed of differently from those fit only for agriculture. No method for doing this had then been provided; but Congress said to the people of the Territory, 'You shall, if you decide to come into the Union, have for the use of schools sections numbered 16 and 36 in every township, if on survey no one else has any valid claim to them; but until this decision is made and the lands are surveyed, we reserve the right either to sell them or dispose of them in any other way that commends itself to our judgment. If they are sold or disposed of, you shall have other lands equivalent thereto.' The right so reserve is subject to no limitation, and the wisdom of not surrendering it is apparent. The whole country is interested in the development of our mineral resources, and to secure it adequate protection was required for those engaged in it. The act of Congress of July 26, 1866, supra, passed before the land in controversy was surveyed, furnishes this protection, by disposing of the mineral lands of the United States to actual occupants and claimants, and providing a method for the acquisition of title. The defendant, and those under whom it claims, occupied the land prior to the survey, and were entitled to purchase. The patent subsequently obtained from the United States relates back to the time of the original location and entry, and perfects their right to the exclusion of all adverse intervening claims.

These views dispose of this case; but there is another ground equally conclusive. Congress, on the 4th of July, 1866, 14 Stat. 85, by an act concerning lands granted to the State of Nevada, among other things, reserved from sale all mineral lands in the State, and authorized the lines of surveys to be changed from rectangular, so as to exclude them. This was doubtless intended as a construction of the grant under consideration; but whether it be correct or not, and whatever may be the effect of the grant in its original shape, it was clearly competent for the grantee to accept it in its modified form, and agree to the construction put upon it by the grantor. The State, by its legislative act of Feb. 13, 1867, ratified that construction, and accepted the grant with the conditions annexed.

We agree with the Supreme Court of Nevada, that this acceptance 'was a recognition by the legislature of the State of the validity of the claim made by the government of the United States to the mineral lands.'

It is objected that the constitution of Nevada inhibited such legislation; but the Supreme Court of the State, in the case we are reviewing, held that it did not, 10 Nev. 314; and we think their reasoning on this subject is conclusive.

Judgment affirmed.


text: Talk:Heydenfeldt v. Daney Gold and Silver Mining Company/Opinion of the Court


text:
Bayne v. United States

APPEAL from the Circuit Court of the United States for the District of Maryland.

Argued by Mr. S. Teakle Wallis and Mr. Thomas W. Hall, Jr., for the appellants, and by Mr. R. T. Merrick for the appellee.

MR. JUSTICE DAVIS delivered the opinion of the court.

title: Bayne v. United States


text: Talk:Bayne v. United States

title: Talk:Bayne v. United States


text:
Bayne v. United States/Opinion of the Court

This suit was brought by the United States against the trustees of Bayne & Co. The court below passed a decree declaring the United States to be a preferred creditor of that firm in the sum of $100,000, and directing the trustees to pay it out of the trust fund in their hands, as far as it would suffice therefor, to the exclusion of the claims of any other creditor. The trustees appealed to this court.

The proofs, although conflicting in some particulars, establish the material facts which entitle the complainant to relief. The United States, March 31, 1866, gave a draft in favor of Brevet Lieut.-Colonel Edward E. Paulding, a paymaster in the army, for $200,000, on the First National Bank of Washington, D. C., a depositary of public money, duly designated as such by the Secretary of the Treasury. He deposited it to his credit, as such officer, in that bank, the thirteenth day of the following April. He had no individual account there. On the 21st of the latter month he drew two checks on that bank, each for $100,000, indorsed them in blank, and sent them to the cashier of the Merchants' National Bank of Washington, who presented them to the former b nk, with the information that Lawrence P. Bayne, a member of the firm of Bayne & Co., desired that $100,000 should be deposited to its credit in New York. This was done, and the amount realized by Bayne & Co., who, it is not pretented, were creditors of the United States. One half of the remaining $100,000 was paid in currency to the Merchants' Bank. A draft in its favor on New York for the residue was afterwards transferred by it to Bayne & Co.

The decree confines the rights of the United States as a preferred creditor of Bayne & Co. to the $100,000 deposited to the credit of the firm in New York, and no question as to the remainder is now before us.

On the 2d or 3d of the next month (May) Bayne & Co. suspended payment, and on the 5th made an assignment in favor of their creditors, making certain preferences, which have no bearing on the present controversy. The Merchants' Bank was largely the creditor of Bayne & Co., and met with a disastrous failure, occasioned in a great degree by the insolvency of that firm.

Government funds in a bank, which is a public depositary, can only be lawfully withdrawn therefrom by a disbursing officer, to meet the legitimate requirements of the public service. The money in question was applicable to a specific purpose, and diverting it, as was done in this case, to other uses was a criminal misappropriation of it. Even its transfer to another depositary, although no private interest was to be thereby subserved, was forbidden by an explicit and peremptory general order of the paymaster-general. We are fully satisfied by the proofs that the transactions between Paulding, the Merchants' Bank, and the First National Bank, were the result of a fraudulent purpose to secure the use of the public money to Bayne & Co., who received it with full knowledge that it belonged to the United States, and had been applied in manifest violation of the act of Congress. The law imposes on that firm an obligation, and implies a promise on its part, to refund the money to its owner. Such a promise can be enforced by action. Assumpsit will lie whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obliged by natural justice and equity to refund. Moses v. Macferlan, 2 Burr. 1012. Bayne p Co. are indebted to the United States, within the meaning of the fifth section of the act of Congress of March 3, 1797, 1 Stat. 515. The form of their indebtedness, or the mode in which it was incurred, is immaterial. Lewis, Trustee, v. United States, 92 U.S. 618. The government being entitled to a preference and priority of payment from the assets of its insolvent debtors, the relief in this case was, in our opinion, properly granted.

Decree affirmed.


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