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Calcote v. Stanton/Opinion of the Court

This case comes before us on a motion to dismiss for want of jurisdiction. It is a writ of error to the high court of errors and appeals of the State of Mississippi.

The plaintiff in error, who was complainant in a bill in equity before the chancellor of that State, claims jurisdiction for this court to review the judgment of the court of appeals, under the 25th section of the judiciary act, because the title to his demand comes through a bankrupt assignee, and therefore from an authority exercised under an act of congress, and because the judgment of the state court was against his claim. He contends that his case is within the third clause of this section, which authorizes this court to review the decision of a state court 'where is drawn in question the construction of any clause of the constitution, or of a treaty or statute, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed, &c.'

It is not enough to give jurisdiction to this court, under this clause, that the decision of the state court was against a party claiming title under some statute of, or commission held under, the United States. The origin of the title may be but an accident of the controversy, and not the subject or substance of it. The suit must have drawn in question the construction of such statute or commission, and the judgment of the state court must have been adverse to the claim set up under them. 'The record also must show, if not ipsissimis verbis, at least, by clear and necessary intendment, that such question of 'construction' was raised, and must have been decided in order to induce the judgment. It is not enough to show that the question might have arisen, and been applicable to the case, unless it is further shown on the record that it did arise, and was applied by the state court to the case.' The cases which establish these principles are too numerous for quotation.

The record before us presents no evidence that such a question did arise, or could have been decided.

The bill shows that, twelve years after the defendants were discharged under the bankrupt act, the complainant got an assignment of certain claims against them from creditors who had received their dividends of the bankrupt's assets, without questioning the legality of their discharge; that being thus possessed, he set about 'to ferret out the frauds, devices, combinations, priorities, preferences, &c., &c., practised, done, and given by the defendants;' and that he had discovered numerous instances of preferences given by the defendants to indorsers and other favored creditors previous to their bankruptcy, in consequence of which it was alleged that their certificate of discharge was void. The balances claimed under these assignments, with interest, would amount to near a million of dollars. The averment of the bill, that the assignments to the complainant were for 'value received,' would be satisfied by the consideration of a dollar or less. The respondents demurred to the bill, and set forth numerous causes of demurrer; the chief of which were a want of equity in the bill, and the bar of the statute of limitations, or the staleness of the demand. But in no one of them is any objection interposed which called for a construction of the bankrupt act, where the complainant claimed any title or exemption under it. The only 'privilege or exemption' which could have been 'drawn in question' under the act were those of the defendant, the validity of whose discharge under it was impugned. But as the decision was in their favor, the case is not brought within our jurisdiction. See Strader v. Baldwin, 9 How. 261.

The whole argument for plaintiff in error was expended in endeavoring to prove that the bill ought not to have been dismissed for want of equity or staleness; and, assuming this to be so, it was contended that the court could not have done so for these reasons, and consequently their decision must have been the result of some misconstruction of the bankrupt law as to the rights claimed by the complainant under it. But, as we have already shown, if the plaintiffs could successfully establish both their premises and conclusion it would not avail to give us jurisdiction. And we may add, moreover, that we see no reason, from any thing that appears on this record, why the state court might not have dismissed the bill as devoid of equity, and as exhibiting a claim which, if not champertous, is on its face a litigious speculation in stale, abandoned, and, as to much the larger portion, wholly unfounded demands.

The writ of error is therefore dismissed for want of jurisdiction.

title: Calcote v. Stanton/Opinion of the Court


text: Talk:Calcote v. Stanton/Opinion of the Court

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


text:
York and Cumberland Railroad Company v. Myers

THIS case was brought up by writ of error from the circuit court of the United States for the District of Maine.

The case is stated in the opinion of the court.

It was argued by Mr. Clifford and Mr. Shepley, for the plaintiffs in error, and Mr. Francis O. J. Smith, for defendant.

With respect to the point that the bill of exceptions was well taken in this case, the counsel for the plaintiff in error laid down the following propositions:--

1. That the bill of exceptions in this case is within the intent if not within the very letter of the statute; and therefore it is insisted that the legal questions herein presented are regularly within the revisory power of this court.

2. That if it is not strictly speaking a bill of exceptions, it is at least 'an exception in the nature of a bill of exceptions,' and therefore it is insisted that the legal questions are examinable on a writ of error.

3. That the rulings and determination of the circuit court, presented for revision are apparent in the record, inasmuch as they are incorporated into the record of the judgment together with the facts on which they were applied under the hand and seal of the circuit judge, and therefore it is insisted that the writ of error well lies.

In support of the first proposition, they cited and commented on 4 Bing. (N. C.) 83, (33 C. L. 283;) 6 Pet. 655; Co. Litt. 288 b; 1 Arch. Prac. 530; 1 Bac. Abr. 529; 17 How. 6; 1 Halsted, 388; 7 Johns. 494.

In support of the second: 16 Pet. 176; 7 How. 855, 866.

In support of the third: 7 Cranch, 596; 2 How. 394; 10 Ibid. 190, 329; 17 Ibid. 12; 4 Pet. 206.

They then referred to the course of proceeding in Maine, on awards of referees made under a rule of court, and cited a number of cases in that and other States.

Upon the main point in the case, they laid down the following propositions:--

1. A report or award of referees is wholly void if it includes damages for a matter not embraced in the submission, unless the amount improperly included can be ascertained and separated from the residue of the sum awarded. 5 Wheat. 394, and other cases.

2. Damages in lieu of the reserved stock, and at a valuation estimated by the referee, were included in the award; and the record affords no means whatever of ascertaining what that valuation was, or of ascertaining the amount so included.

3. No claim for the reserved stock, or for damages for non-delivery thereof, was embraced in the declaration, or sued for in the action; and, as the reference was one of the action merely, no such claim was submitted to the arbitrament of the referee.

These propositions led to a very minute examination of the facts and accounts in the case.

Mr. Smith, for defendant in error, made eleven points; but it is only necessary to state the one upon which the decision of the court rested:--

9. The several causes of complaint in the plaintiffs' bill of exceptions and assignment of errors, are in the nature and of the effect of a motion to set aside the award, and to grant a new trial, or to recommit the report of the referee; and, under the rule of court, are, as such, only fit matters to be addressed to the consideration and discretion of the circuit court to which the report was made returnable, and are not subject-matters for revision by this court, on a writ of error. Opinion of the circuit court of the United States for the district of Maine, annexed; Parsons v. Beford et al. 3 Pet. 445; Wright et al. v. Lessee of Hollingsworth et al. 1 Pet. 168; Cutler v. Grover, 15 Maine R. 159; Walker v. Sanborn, 8 Ibid. 288; Cumberland v. North Yarmouth, 4 Ibid. 459; Whitney v. Cook, 5 Mass. 143; Boardman v. England, 6 Mass. 70; Toland v. Sprague, 12 Pet. 331; Evans v. Phillips, 4 Wheat. 73; Henderson v. Moore, 5 Cranch, 11; Harker v. Ellicott et al. 7 Serg. & R. 285; Zeller's Lessee v. Eckert et al. 4 How. 289.

Mr. Justice CAMPBELL delivered the opinion of the court.


text: Talk:York and Cumberland Railroad Company v. Myers


text:
York and Cumberland Railroad Company v. Myers/Opinion of the Court

This is an action by the defendant in this court (Myers) against the railroad company, for the breach of the covenants in a contract made between these parties in August, 1850, by which the defendant agreed to perform certain work, incur charges and expenses, and supply equipments and materials in the construction of a railroad from the city of Portland, in Maine, to South Berwick, in New Hampshire; and also to fulfil the unexecuted engagements of certain contractors who had retired before completing their contract. Before the terms of the contract had been accomplished, the defendant was dismissed, as he alleges, without a sufficient cause; and the object of the suit is to recover such damages as he had sustained by the failure of the company to discharge the obligations they had assumed to him. The declaration recites at large the agreements of the parties, and contains a general averment that he entered upon the construction of the railroad, and the performance of all the matters and things upon his part to be done and performed, and had performed all the things required to be done and performed, until the 19th of August, 1852, and had nearly completed one of the sections of the road so as to be fit for use, and that it had been used; also, that he had expended large sums towards the engineering, surveys, construction, and grading of other parts of the road, until he was unlawfully dismissed, and hindered, and forbidden to prosecute the work any further.

The declaration then contains a general averment of the nonperformance by the plaintiffs (railroad company) of their obligations to suffer the work to proceed, to abide the decision of their engineer, or to pay the amounts that had become payable prior to his dismissal.

This averment is material, in connection with other parts of the case, and will be extracted hereafter.

The defendant (Myers) proceeds to take up the various stipulations of the railroad company, to describe their legal effect, and to denounce their breach by the company. None of these are of importance to the case here, save those that arise on the 8th and 9th articles of the contract. The first of these articles provides for the payments to be made on account of the first division of the road; and the other, for those on the three remaining sections into which it was divided. The 8th article provides that the corporation should pay to the defendant for the performance of his undertakings, and in full satisfaction of the obligations of the company on the prior contracts, $32,000 per mile for the first division of the work; that for all work done by the previous contractors, to the 1st of August, 1850, payments should be made according to their contracts, inclusive of the reserve fund; for all lands purchased by them, whether for cash, bonds, or stock, payments should be made in cash, bonds, or stock, according to the mode of the purchase; and for all such work on said first division, from the 1st of August, and as the same should progress, current payment should be made at the rate of fifty per cent. in cash, twenty-five per cent. in the six per cent. bonds of the company, and twenty-five per cent. in stock; one half of the latter to be reserved for an indemnity for the fulfilment of the contract, until said division of the road should be completed.

The 9th section of the agreement refers to the second, third, and fourth sections of the road. For the fulfilment of all its obligations, the company agreed to pay $27,500 per mile thirty-three and one third per cent. in cash, on the return and adjustment of each monthly estimate by the engineer; a like sum in the bonds of the company; and a like sum, reserving one half thereof for indemnity, in the stock certificates of the company. 'The monthly estimates to be governed by the same gradation of actual expenditures as heretofore, and the payment to be made on such estimate of actual expenditures.'

And it was provided, that, upon the completion of either of the second, third, or fourth sections, in work, material, station-houses, and equipments, the whole of the payments of cash, bonds, and certificates of stock, in corresponding amounts, equal to the sum aforesaid, should be made in complete discharge of said company upon all the contracts pertaining to that section of the road. The breaches laid in the declaration, applicable to the payments, are as follows:--

'And the said plaintiff in fact saith, that the said defendants, contrary to the covenants or agreements in the indenture aforesaid, did not abide by the decision of their engineer, as to the amount and quantity of the several kinds of work done, in and by said indenture contracted to be done by said plaintiff for said defendants, and which were done and performed by the plaintiff; nor did said defendants pay said plaintiff for the work done by him for them, according to said agreement; but, on the contrary, utterly refused to pay the plaintiff therefor, according to the estimate of their engineer; although the plaintiff avers that said engineer made to said defendants a return of the monthly estimates of the work and labor done by plaintiff upon said road.'

The declaration recites the eighth article, and avers a breach in reference to the payments, as follows: 'And the plaintiff avers that said defendants, in breach of their covenant aforesaid, did not, for all the work performed and material furnished up to said first of August, make a full settlement, as had been heretofore estimated, monthly, and pay the plaintiff therefor, in accordance with the covenants aforesaid; neither did said defendants, for all work on said division, as the same progressed, after said first of August, according to their covenants aforesaid, pay therefor fifty per cent. in cash, twenty-five per cent. in bonds, and twenty-five per cent. in stock, one half being retained, as stipulated, for an indemnity; nor did said defendants pay the plaintiffs therefor, according to the monthly estimates of the engineer, as returned by him.'

The breach of the covenants contained in the ninth article is averred in language similar to the above, with variances corresponding to the difference of the sums to be paid.

Before a trial, the parties agreed to refer the action to the determination of three persons, to be appointed by the court, whose report, or the report of any two, was to be made as soon as may be; and that judgment thereon was to be final, and execution to issue accordingly.

Afterwards, one of the persons appointed was authorized to act alone, and this person returned a decision in favor of the defendant, (Myers,) for an ascertained sum as damages.

Upon the return of the award to the court, the corporation submitted objections, and examined the arbitrator in support of them. These objections are as follows:--

'1. That the said Hale has acted and awarded upon, and included in said award, damages for a subject-matter not referred to him.

'2. That the said Hale has included in his said award damages for a claim not embraced in the plaintiff's writ and declaration, and not sued for in the above action, and not referred to his abitration or decision.

'3. That, in and by his said award, he has awarded to the plaintiff in said action damages for the non-delivery of the reserved stock specified in said writ and declaration, and in the contracts therein set out and copied, although the said reserved stock is not sued for, nor is any allegation made in the said writ and declaration that the same had been demanded, nor was any proof of demand of the same offered at the hearing before said referee, nor was any claim for the same referred for his arbitration or decision.

'4. That the said Hale has awarded damages to the said plaintiff, in lieu of profits for work not performed by the plaintiff under his said contracts, contrary to law.

'5. That there having been no proof or claim that the defendants, in fraud of the plaintiff's rights under his said contract, had taken the contract from the plaintiff, and given to any other person at a lower rate, or taken it for the purpose of giving it to any other party at a lower rate, the referee has awarded a sum as damages to the plaintiff for prospective profits not earned by him, contrary to law.

'6. That it does not appear in and by said award whether the said referee has credited or charged the plaintiff with an amount of bonds deposited in the hands of Levi Morrell, under the terms of the supplementary contract, dated February 6, 1851, and set out in said writ and declaration.

'7. That it does not appear in and by said award what disposition was made by the referee of an amount of bonds in the hands of D. C. Emery, the treasurer of said corporation.

'8. That it does not appear in and by said award whether the said referee charged the said plaintiff with an amount of bonds in his hands, purporting to have been issued by one Nathaniel J. Herrick, describing himself as treasurer pro tempore of said corporation.'

The arbitrator testified that he had included the twelve and one half per cent. of reserved stock in the award; that he considered the demand for reserved stock as suspended by the proceeding, and that the plaintiff (Myers) was entitled to damages for not having received the stock previous to the breach of the contract. He says there was no distinct claim made before the referee for the reserved stock, but the account embraced it by way of debtor and creditor. The books showed he was entitled to reserved stock, but not as subject to his order, or that he had any opportunity to receive it. He said it was admitted that that amount of reserved stock would be due to him on settlement of his account, but not that he had at any time had it under his control, nor was there any evidence that he had demanded it.

This testimony, with more to the same effect, was elicited from the arbitrator upon his examination before the circuit court, upon the return of the award, and in support of the exceptions to it. The learned judge who presided received the evidence, but overruled the exceptions, and embodied the testimony and the decision in a bill of exceptions, reserving his opinion of the regularity of that mode of proceeding, and whether the judgment can be revised. We are of the opinion, that the equity of the statute allowing a bill of exceptions in courts of common law of original jurisdiction, embraces all such judgments or opinions of the court that arise in the course of a cause, which are the subjects of revision by an appellate court, and which do not otherwise appear on the record. Strother v. Hutchinson, 4 Bing. N. C. 83; Ford v. Potts, 1 Halst. 388; Nesbitt v. Dallam, 7 G. & J. 494; 9 Port. 136.

But to present a question to this court, the subordinate tribunal must ascertain the facts upon which the judgment, or opinion excepted to, is founded; for this court cannot determine the weight or effect of evidence, nor decide mixed questions of law and fact. Zeller v. Eckert, 4 How. 289.

The practice prevails in the courts, where rules of reference are in use, to examine the arbitrators as witnesses, to ascertain facts material to the validity of the award; and the appellate courts are accustomed to revise their decisions, and upon principle we see no objection to the introduction of the same practice into the courts of the United States under the limitations we have indicated. Thornton v. Carson, 7 Cranch, 597; Butler v. Mayor, of N. Y. 7 Hill, 329; Lutz v. Linthicum, 8 Peters, 166; Sawyer v. Freeman, 35 Maine, 546; Ward v. American Bank, 7 Met. 486.

In the present instance we can collect from the evidence of the referee, as shown in the exceptions, the fact necessary to raise some of the questions contained in the objections to the award, without being involved in the dispute between the parties, as to the condition in which the reserved stock had been placed by the corporation.

The law is well settled, that by the reference of an action to the determination of an arbitrator, nothing is included in the submission but the subject-matter involved in it. Tidd's Pr. 822; 2 T. R. 645.

And if an arbitrator embraces in his award matter not submitted, and includes the result in a single conclusion, so as to render it impossible to separate the matters referred from those which have not been, the award is bad. Lyle v. Rodgers, 5 Wheat. 394; 33 Maine, 219; Sawyer v. Freeman, 35 Maine, 546.

The defendant contends that no claim for the reserved stock, or for damages for its non-delivery, was embraced in the declaration or sued for in the action; and, as the reference was one of the action merely, no such claim was submitted to the referee. This involves the construction of the declaration.

We have extracted the averments in the declaration that were designed to charge the corporation with the non-performance of the covenants, for the payment for work done before the dismissal of the contractor.

In one of those the charge is, that the corporation had neglected and refused to make any payments, and thus a total failure to fulfil its obligations in respect to payments is alleged. The assignments of the breaches of the 8th and 9th articles are made in the language of the covenants themselves, and the failure charged is coextensive with the obligations. If the corporation had created no reserved stock, or had made no appropriation for the contractor, according to the monthly estimates as the work progressed, and had finally dismissed him, so as to exclude his claim for the stock reserved when his contract had been fulfilled, there could have been no ground for affirming that a breach of the covenants had not been made by the corporation, and that damages were not due.

There would have been no argument to support the allegation, that the contractor was a corporator to the extent of the stock which should have been reserved. But, as we interpret the declaration, its averments have this scope and operation.

It was the duty of the arbitrator to ascertain the truth of these charges. They were the precise subject of the reference. The arbitrator has explained with clearness in his testimony his conclusion on the subject of this stock, that the contractor had no title to the shares; that is, that he had not been paid by the appropriation of so much reserved stock for his use. This conclusion of his is a final decision on the question, for this court cannot revise his mistakes, either of law or of fact, if such had been established. Burcheel v. Marsh, 17 How. 344; Kleine v. Catara, 2 Gall. 61. The objections, we have noticed, include all that were insisted on in the argument.

The objection taken to the absence of an original writ, or to the supply of a copy, is not tenable. The original writ had fulfilled its function when the defendant had been brought into court, and its loss did not affect the action of the plaintiff; and, it was a matter resting in the discretion of the court, upon ascertaining the defective state of the record, to supply the deficiency.

Our conclusion is, there is no error in the record.

Judgment affirmed.

Mr. Justice DANIEL dissented.


text: Talk:York and Cumberland Railroad Company v. Myers/Opinion of the Court


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Page:A Book of Dartmoor.djvu/112

76 harder superincumbent mass rests on one or two points. Either it topples over and becomes one more block in a clitter, or it remains balanced, and, if fairly evenly balanced, can be made to rock like a cradle. Here is a specimen of tall twaddle from the hand of Mrs. Bray or the Rev. E. Atkyns Bray, her husband:— "There must have been a more than ordinary feeling of awe inspired in the mind of the criminal by ascending heights covered with a multitude, to whose gaze he was exposed, as he drew nigh and looked upon these massive rocks, the seat of divine authority and judgment. How imposing must have been the sight of the priesthood and their numerous trains, surrounded by all the outward pomps and insignia of their office; as he listened to the solemn hymns of the vates, preparatory to the ceremonial of justice; or as he stepped within the sacred inclosure, there to receive condemnation or acquittal, to be referred to the ordeal of the logan, or the tolmen, according to the will of the presiding priest! As he slowly advanced and thought upon these things, often must he have shuddered and trembled to meet the Druid's eye, when he stood by 'the stone of his power.'" All this rubbish is based on supposition. There is not a particle of evidence to support it. Toland was the first to start the theory that logan stones were used for ordeal purposes or as oracles. He says: "The Druids made the people believe that they alone could move these stones, and by a miracle only, by which pretended power they condemned or acquitted the accused, and often brought criminals to

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Shields v. Thomas (59 U.S. 253)

THIS was an appeal from the district court of the United States, for the northern District of Iowa.

The case is stated in the opinion of the court.

It was argued by Mr. Gillett, for the appellant, and Mr. Platt Smith, for appellees.

Mr. Gillett made nine points. Those which are touched upon in the opinion of the court were the following:--

2. The bill is multifarious, and therefore bad. 1 Dan. Ch. Pr. 384; Cooper's Eq. Pl. 182; Mitford, 146-7; 8 Peters, 123.

7. A judgment against persons not within the jurisdiction of the court, and who were not served with process, and who did not appear to the action, is null and void.

If a court in one State can render effective judgments against persons in other States, who are neither served with process nor appear to the action, there will be no security for the citizen. The mere shadow of claims might ripen into valid judgments, without the defendant having an opportunity to defend. No authoritative court has ever held such judgments valid. The following cases are conclusive upon this point. Ewer v. Coffin, 1 Cushing, 24; Hickey v. Smith, 1 Eng. 456; 3 id. 318, 324; Woodruff v. Taylor, 20 Vermont, 65; Davis v. Smith, 5 Geo. 274; Dunn v. Hall, 8 Blkf. 32, 335; 11 How. 165; 2 M'Lean, 473; 3 J. J. Marshall, 600; 2 B. Monroe, 453; 3 B. Monroe, 218; 6 J. J. Marshall, 578; 8 B. Monroe, 137.

8. A judgment or decree void as to one or more of the parties is void as to all. 6 Pick. 232; 12 Johns. 434; 11 N. H. 299; 14 Ohio, 413.

Upon the principal points in the case, Mr. Platt Smith said:

We take the ground that the court in Kentucky had jurisdiction of the subject-matter, and of John G. Shields, and that consequently their decree cannot be inquired into, but full faith and credit are to be given to it, as is provided by the constitution and act of congress of the United States. Cons. U.S. art. 4, § 1; act con. 26th May, 1790; 1 U.S. Stat. at L., 122. That as to James Shields and Henry Yater, who were non-residents, and proceeded against as such, the Kentucky decree would not be binding on them except in the State of Kentucky, for the courts of that State did not obtain jurisdiction over their persons. Story's Confl. of Laws, § 569; Williams v. Preston, 3 J. J. Marshall, 600; Cobb v. Haynes, 8 B. Monroe, 139. Still, that could not affect the validity of the decree as to John G. Shields, for the court had jurisdiction of his person and of the subject-matter, namely, the settlement of the estate of John Goldsbury, deceased; consequently, their judgment or decree is not void, no matter whether it was right or wrong to join Henry Yater and James Shields in the rendition of the decree.

The present action is not multifarious. There is no mixture of different claims. Although the decree is virtually several, yet it is in fact only one thing, and grows out of one subject-matter; a trial of the question as to one complainant is a trial as to the whole.

The remedy at law is uncertain and would have caused a multiplicity of suits, for each complainant would, at law, have been obliged to bring a suit against John G. Shields; and to have sued at law would have raised the objection, first, that no action at law could be had on the decree of a court of equity; Hugh v. Higgs and wife, 8 Wheat. R. 697; Carpenter et al. v. Thornton, 3 B. & Al. 52; Elliott v. Ray, 2 Blackf. R. 31; and second, if the whole had been attempted in one suit, that there was no mutuality between the plaintiffs; Gould's Pl. 197; 2 Saund. R. 117, n. 2; and, third, if there had been several suits, then, that several distinct actions could not be brought on one decree.

The uncertainty, then, of an action or actions at law was sufficient ground for giving to a court of equity jurisdiction of the case; Story's Eq. Pl. § 473; and the avoidance of multiplicity of suits was another ground; 1 Story's Eq. Julis. § 64, k., also 67; Jesus College v. Bloom, 3 Atk. 263.

Mr. Justice DANIEL delivered the opinion of the court.

title: Shields v. Thomas (59 U.S. 253)


text: Talk:Shields v. Thomas (59 U.S. 253)

title: Talk:Shields v. Thomas (59 U.S. 253)


text:
Shields v. Thomas (59 U.S. 253)/Opinion of the Court

Upon an appeal from a decree in chancery by the district court of the northern district of Iowa.

This case, although upon the record a good deal extended in volume, is in effect narrowed to the questions of law arising upon the pleadings.

The facts of the case, so far as a statement of these is necessary to an accurate comprehension of the legal questions discussed and decided, were as follows: In the year 1839, a portion of the appellees, as heirs and distributees of John Goldsbury, by their bill filed in the circuit court for Grayson county, in the State of Kentucky, alleged that their ancestor died in Nelson county, in the State aforesaid, intestate, leaving a widow, Eleanor Goldsbury, and four children-three daughters, Elizabeth, Nancy, and Mary, and one son, Bennett Goldsbury-all these children infants at the time of their father's death. That John Goldsbury died possessed of one male and one female slave, and of other personal property, and perfectly free from debt. That the widow Eleanor Goldsbury, who was appointed the administratrix of her husband, and as such took possession of the estate within a year from the period of his death, intermarried with one James Shields, in conjunction with whom she had continued to hold the entire estate, and to apply it to their exclusive use, without having made any settlement or distribution thereof. The bill further charged, that Shields and wife, after enjoying the services and hires of the male slave for several years, had ultimately sold him, and that, in the year 1818, they removed from Kentucky to the State of Missouri, carrying with them the female slave belonging to the estate of John Goldsbury, together with her descendants, seven in number, and of great value; that upon application so said Shields and wife, for a surrender of those slaves, and for an account of the estate of John Goldsbury, so possessed and used by them, this request was refused, and that, by a fraudulent confederacy between Shields and wife, and John G. Shields, their son, and Henry Yates, their son-in-law, the slaves had by the son and son-in-law been secreted, carried off and sold, in parts unknown to the complainants, and the other personal estate of John Goldsbury fraudulently disposed of in like manner. The bill also made defendants the representatives of the surety of Eleanor Goldsbury, in her bond given as administratrix of her first husband. The bill also made defendants though not in an adversary interest, Isaac Thomas, and Mary, his wife, Elizabeth, John and Ann Goldsbury, which said Elizabeth, John, and Ann, are the infant children of Bennett Goldsbury, son of John Goldsbury, deceased.

After the filing of the bill in this case, it appearing to the satisfaction of the court that James Shields, and Eleanor, his wife, Elizabeth, John, and Ann Goldsbury, John Shields, and Henry Yates, were not inhabitants of the State of Kentucky, there was, on the 25th of December, 1839, under the authority of the statute of Kentucky with reference to absent defendants, issued by the court what is termed a warning order, by which the absent defendants were required to appear at the next April term of the court, and answer the complainants' bill.

Afterwards, namely, on the 28th of April, 1840, the absent defendants still not appearing, under the like authority of the law of the State, the clerk of the court, by its order, filed on behalf of those defendants a traverse denying the allegations of the complainants' bill.

Subsequently to this proceeding, namely, on the 30th of October, 1841, the said John G. Shields filed his answer to the complainants' bill, thereby recognizing as to himself personally the jurisdiction of the court.

Upon these pleadings, the cause after an examination of witnesses, and upon a report of the master, came to a hearing before the circuit court, and this tribunal decreed against the representative of the surety in the administration bond of Mrs. Goldsbury, (afterwards, Mrs. Shields,) and against James Shields her husband, she having departed this life, John G. Shields, the son, and Henry Yates, the son-in-law, in favor of the heirs and distributees of John Goldsbury, the portions reported to be due to them respectively of the general effects of John Goldsbury, deceased, and of the values and hires of the slaves. Upon an appeal taken from this decree to the supreme court of Kentucky, it being the opinion of the latter that, under the circumstances, the surety in the administration bond should not be charged, and also that an amount equal to the price of the slave Mat, sold by the administratrix had her husband, and to the hires of the remaining slaves, had been properly applied to the dower of the widow and to the use of the heirs of John Goldsbury, it ordered the decree of the circuit court to be re-formed in conformity with the opinion of the supreme court. By a final decree of the circuit court of Grayson county, made on the 28th day of October, 1846, the bill as to the representative of the surety in the administration bond was dismissed, and the defendants, James Shields, John G. Shields, and Henry Yates, and each of them, who had, by fraudulent combination, secreted and carried off, and disposed of the descendants of the female slave, originally the property of John Goldsbury, were decreed and ordered to pay to the heirs of said John Goldsbury severally, the amounts ascertained to be due to them as their respective and separate portions of the value of the slaves thus fraudulently disposed of, without any allowance for the hires of those slaves.

To obtain the benefit of this last decree, the suit now before us was instituted in the names of the appellees, Isaac Thomas and Mary, his wife, Uriah Pirtle and Nancy, his wife, citizens of the State of Kentucky, and John B. Goldsbury, a citizen of the State of Missouri, the said Mary Thomas, and Nancy Pirtle, and John B. Goldsbury, being heirs and distributees of John Goldsbury, deceased, against John G. Shields, a citizen of the State of Iowa. The bill refers to the proceedings in the Kentucky suit, which proceedings are set forth in extenso as an exhibit in this cause; it further assigns as a reason for the non-joinder of a portion of the heirs of John Goldsbury as defendants, the fact that their residence precluded as to them the jurisdiction of the district court of Iowa. It sets out the sums of money severally and specifically decreed to the complainants by the circuit court of Grayson county, Kentucky, and prays that the defendant, John G. Shields, may be compelled to perform that decree by the payment to the complainants respectively the sums so awarded them, and concludes with a prayer for general relief.

By an amendment to the original bill in this case, the several heirs and distributees of John Goldsbury, residing in the State of Missouri, beyond the jurisdiction of the district court of Iowa, and who, for that reason, were not made defendants by the original bill, were admitted as complainants in this suit, and united in the prayer for enforcing the decree in their favor, as rendered by the circuit court of Grayson county, Kentucky.

To the original and amended bills in this case, the defendant, John G. Shields, interposed a demurrer, which having been overruled, and the demurrant abiding by his demurrer, and declining to answer over, the district court for the district of Iowa, on the 17th day of January, 1854, adjudged and decreed to the complainants the sums respectively awarded to them by the circuit court of Grayson county, Kentucky, as against the defendant, John G. Shields, with interest upon those several sums from the 28th day of October, 1846, the date of the decree in the circuit court.

Upon an appeal from the district court of Iowa, several points arising upon the demurrer, and discussed and adjudged by that court, are presented for consideration here. Amongst the objections insisted upon, that which stands first in the natural order, is the alleged want of jurisdiction in the circuit court of Kentucky, either over the subject-matter or the parties embraced in the proceedings in that court.

In this objection no force is perceived. The subject-matter of the suit was the settlement of the estate of an intestate who lived and died within the limits of the court's authority, within which limits the qualification of the administratrix of the intestate, the appraisement of his estate, and the recording of that appraisement had taken place; within which also was the residence of the surety in the administration bond, and of a portion of the distributees-both plaintiffs and defendants asserting before that court their interest in the estate. The court, as one vested with general equity powers, could act either in personam or in rem, as to persons or property within the State.

Under the laws and the practice in the State of Kentucky, already referred to, proceedings are authorized and prescribed in suits in equity against absent defendants; which proceedings, when regularly observed, are held within the State to be binding absolutely. With respect to absent defendants, such proceedings could be considered as binding beyond the limits of the State in instances only in which those defendants should have been legally and personally served with process, or in which they should have voluntarily submitted themselves as parties. In the suit in the state court, the subject-matter of the controversy, as well as a portion of the parties, both plaintiffs and defendants, being confessedly within its cognizance, no ground for exception to the jurisdiction could exist as to these. The defendant, John G. Shields, when he voluntarily entered his appearance, and answered the bill, placed himself in the same predicament with the other parties regularly before the court, and could not afterwards except to the jurisdiction upon the ground of his non-residence. The decree, therefore, so far as this exception is designed to affect it, cannot be impeached.

The objection which seems to follow next in order, is one levelled at the frame of the bill in the district court of the United States, irrespective of the justice or regularity of the proceedings in the state court. This objection is, that the bill filed in the district court of Iowa is multifarious, by embracing in one suit interests and causes of action in themselves separate and disconnected, and therefore such as it was improper to include in one bill.

There is, perhaps, on rule established for the conducting of equity pleadings, with reference to which (whilst as a rule it is universally admitted) there has existed less of certainty and uniformity in application, than has attended this relating to multifariousness. This effect, flowing, perhaps inevitably, from the variety of modes and degrees of right and interest entering into the transactions of life, seems to have led to a conclusion rendering the rule almost as much an exception as a rule, and that conclusion is, that each case must be determined by its peculiar features. Thus Daniel, in his work on Chancery Practice, vol. 1, p. 384, quoting from Lord Cottenham, says: 'It is impossible, upon the authorities, to lay down any rule or abstract proposition, as to what constitutes multifariousness, which can be made universally applicable. The cases upon the subject are extremely various, and the court, in deciding upon them, seems to have considered what was convenient in particular cases, rather than to have attempted to lay down an absolute rule. The only way of reconciling the authorities upon the subject is, by adverting to the fact that, although the books speak generally of demurrers for multifariousness, yet in truth such demurrers may be divided into two distinct kinds. Frequently, the objection raised, though termed multifariousness, is in fact more properly misjoinder; that is to say, the cases or claims united in the bill are of so different a character that the court will not permit them to be litigated in one record. But what is more familiarly understood by the term multifariousness, as applied to a bill, is, where a party is able to say, he is brought as a defendant upon a record, with a large portion of which, and of the case made by which, he has no connection whatever.' Justice Story, in his compilation upon equity pleading, defines multifariousness in a bill to mean, 'the improperly joining in one bill distinct and independent matters, and thereby confounding them.' And the example by which he illustrates his definition is thus given: 'the uniting in one bill several matters perfectly distinct and unconnected against one defendant, or the demand of several matters of a distinct and independent nature, against several defendants in the same bill.' Sir Thomas Plumer, V. C., in allowing a demurrer which had been interposed by one of several defendants to a bill on the ground that it was multifarious, remarks, that 'the court is always averse to multiplicity of suits, but certainly a defendant has the right to insist that he is not bound to answer a bill containing several distinct and separate matters relating to individuals with whom he has no connection.' Brooks v. Lord Whitworth, 1 Mad. Ch. R. 57.

Justice Story closes his review of the authorities upon this defect in a bill, with the following remark: 'The conclusion to which a close survey of all the authorities will conduct us, seems to be, that there is not any positive inflexible rule as to what, in the sense of a court of equity, constitutes multifariousness, which is fatal to a suit on demurrer.' To bring the present case to the standard of the principles above stated, the appellees are seeking a subject their title to which is common to them all, founded in the relation they bear to a common ancestor. The different portions or shares into which the subject may be divisible amongst themselves, can have no effect upon the nature or character of their title derived as above mentioned; and which in its character is an unit, and cannot be objected to for inconsistency or diversity of any kind. They seek an account and the recovery of a subject claimed by their common title, or an equivalent for that subject, against persons charged with having by fraudulent combination withheld and diverted that subject, and who, by such combination and diversion, rendered themselves equally, jointly, and severally liable therefor. Upon the face of this statement it would be consistent neither with justice nor convenience, nor consistent with the practice, to turn the appellees round to an action or actions at law, for any aliquot parts of each upon a division of this subject claimed under their common title, and which aliquot portions would have to be ascertained by an account which would not depend upon the question of liability of the defendants. The like principles and considerations would, in every case of equal responsibility in several persons, instead of condemning, commend, and in a court of equity would command, wherever practicable, a common proceeding against all to whom such responsibility extended.

But in truth, the question raised upon this point on the demurrer, seems to have been virtually, if not directly concluded by this court upon this very record. At the December term, 1854, of this court, a motion was made by a portion of the appellees to dismiss this appeal upon the following grounds: In the decree in favor of the distributees in Kentucky, the court having designated the shares of the whole amount recovered, which would belong to each distributee, and the district court of Iowa having adopted the same rate of distribution in enforcing the decree of the Kentucky court, by which rate it appeared that none of the distributable portions amounted to the sum of $2,000; those distributees, with the view, no doubt, of hastening the termination of this controversy, and of obtaining immediately the benefit of the decree in their favor, moved this court for a dismission of this cause, upon the ground that the sum in controversy between the appellant and the persons submitting that motion was less than $2,000, and, therefore, insufficient to give this court jurisdiction. The chief justice, in the opinion denying the motion to dismiss, uses this language: 'The whole amount recovered against Shields in the proceeding in Iowa exceeds $2,000, but the sum allotted to each representative who joined in the bill was less; and the motion is made to dismiss, upon the ground that the sum due to each complainant is severally and specifically decreed to him; and that the amount thus decreed is the sum in controversy between each representative and the appellant, and not the whole amount for which he has been held liable. But the court think the matter in controversy in the Kentucky court was the sum due to the representatives of the deceased collectively, and not the particular sum to which each was entitled when the amount due was distributed among them according to the laws of the State. They all claimed under one and the same title. They had a common and undivided interest in the claim; and it was perfectly immaterial to the appellant how it was divided among them. He had no controversy with either of them on this point, and if there was any difficulty as to the proportions in which they were to share, the dispute was among themselves, and not with him.' Vide 17 How, pp. 4, 5. This reasoning appears to be conclusive against the defect of multifariousness imputed to the claim of the appellees in this case; and we deem it equally so with respect to defendants sustaining an equal responsibility deducible from one and the same source.

The remaining objection arising upon the demurrer, which we deem it necessary to consider, is that urged against the right of the appellees to institute proceedings in equity in the State of Iowa, to enforce the decree rendered in their favor by the court in Kentucky. We can perceive no force in the effort to sustain this objection by citation of the 7th amendment of the Constitution of the United States, which provides, 'that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.' This provision, correctly interpreted, cannot be made to embrace the established, exclusive jurisdiction of courts of equity, nor that which they have exercised as concurrent with courts of law; but should be understood as limited to rights and remedies peculiarly legal in their nature, and such as it was proper to assert in courts of law, and by the appropriate modes and proceedings of courts of law.

With respect to the character and effects of decrees in chancery, although they now rank in dignity upon an equality with judgments at law, it is well known that they were once regarded as not being matters of record; and that the final process incident to judgments at law was unknown to and not permitted to courts of equity; that where such process has been permitted to them, it has been the result of statutory enactments. But the extension to a court of equity of the power to avail itself of common-law process, cannot be regarded as implying any abridgment of the original constitutional powers or practice of the former; but as cumulative and ancillary, or as leaving those powers and that practice as they formerly existed, except as they should have been expressly restricted. Amongst the original and undoubted powers of a court of equity is that of entertaining a bill filed for enforcing and carrying into effect a decree of the same, or of a different court, as the exigencies of the case, or the interests of the parties may require. Vide Story's Equity Pleading, §§ 429, 430, 431, upon the authority of Mitford, Eq. Pl. 95, and of Cooper's Eq. Pl. 98, 99.

In the present case the appellees were, by the residence of the appellant in a different State, cut off from the benefit of final process upon the decree of the state court, which process would not run beyond the territorial jurisdiction of the State. They were left, therefore, to the alternative of instituting either an action or actions at law upon the decree in their favor, or of filing a bill for enforcing and carrying into effect that decree. Upon the former mode of proceeding, they would have been compelled to encounter circuity, and most probably the technical exceptions urged in argument here, founded upon the nature of the decree with respect to its unity or divisibility. The appellees have elected, as the remedy most beneficial for them, and as we think they had the right to do, the proceeding by bill in equity, to carry into execution the decree of the state court. We can perceive no just exception to the jurisdiction of the district court of Iowa in entertaining the bill of the appellants, nor to the measure of relief decreed, nor with respect to the party against whom that relief has been granted. We therefore order that the decree of the district court of Iowa be affirmed.


text: Talk:Shields v. Thomas (59 U.S. 253)/Opinion of the Court


text: 1911 Encyclopædia Britannica/Cape Town

title: 1911 Encyclopædia Britannica/Cape Town


text:
Orton v. Smith

THIS was an appeal from the district court of the United States, for the district of Wisconsin.

The facts are stated in the opinion of the court.

It was argued by Mr. Gillett and Mr. Lynde, for the appellant, and Mr. Brown, for the appellee. There was also a brief filed on the same side by Mr. Upham.

The points made by the counsel were so interwoven with the facts, that they cannot be presented abstractedly.

Mr. Justice GRIER delivered the opinion of the court.

title: Orton v. Smith


text: Talk:Orton v. Smith

title: Talk:Orton v. Smith


text:
Orton v. Smith/Opinion of the Court

The bill, in this case, is in the nature of a 'bill of peace,' as authorized by the statutes of Wisconsin. Smith, the claimant below, claimed to be owner of certain lands, to which Orton claimed also to have some title. The bill prays an injunction against Orton, to prohibit him from setting up his claim, and thereby 'casting a cloud' over the good legal title of complainant.

The facts of the case are somewhat complex, and its merits will be better apprehended by a succinct history of them, as elicited from the pleadings and evidence.

Hubbard had settled in Wisconsin, having escaped from his creditors, with some pecuniary means, which he thought it prudent to conceal. Hence, though he speculated in the purchase and sale of lands, the title to them was held by friends. He had contracted to sell certain lots in Milwaukie to Schram. But Schram would not pay his money without a good legal title, or good security that it should be conveyed to him. Hubbard resided in the family of his friend Butler, and being addicted to idleness and intemperance, he confided the management of his affairs, in a great measure, to Butler. Schram would not pay his money on the security of Butler or the promise of Hubbard to obtain a title; and one Knab at length was prevailed on to enter into a bond with Butler, conditioned that a good legal title should be made to Schram for the lots. But Knab was unwilling to enter into this bond without security also. For this purpose the land in-dispute in this suit was conveyed to him in fee by one Cyrus D. Davis, who held the legal title as friend and trustee of Hubbard. This deed was put on record by Knab, who, at the same time, gave his title-bond covenanting to convey the land to Butler, when the covenants of their bond to Schram would be satisfied or released. This title-bond was not given to Davis, because he claimed no beneficial interest in the land; nor to Hubbard, because his policy required him not to appear to have any title to property; but to Butler, the friend and active agent of Hubbard. Notwithstanding the testimony of Butler, that he paid Hubbard for the land, and did not hold as secret trustee for him, the fact may be considered doubtful; and it is not necessary to decide it, in our view of the present case. Hubbard is now seceased: but in his lifetime he assigned, for the consideration of one dollar, all his interest in the land in dispute to one Gruenhagen, (under whom Smith, the complainant, claims,) by deed dated in June, 1851.

On the 22d of February, 1851, Butler assigned to Orton, the defendant, the title-bond of Knab for the consideration of $2,100. This consideration has been paid without any knowledge or notice of any secret equity in Hubbard; and the covenants of the bond to Schram being fulfilled or released, Orton filed his bill in chancery on the 6th of August, 1851, against Knab, demanding from him a conveyance of the legal title according to the exigency of his bond.

During the pendency of this bill, which would settle the legal and equitable rights of all persons having any claim to the land in dispute, the complainant, Smith, becomes the purchased of the real or supposed secret equity of Hubbard. And not only so, but he has obtained from Knab the transfer of the legal title for a nominal consideration; thereby substituting himself in the place of Knab in the contest pending in the state court. The charge of fraud made in the bill, because Knab's title-bond was made to Butler and not to Hubbard, is not substantiated. It was a matter of indifference to Knab whether Hubbard or Butler held the bond. He had no concern with the private arrangements or secret trusts between them. When the condition of his bond to Schram was released, Knab was bound to convey to Butler, by the exigency of his own contract, and could not make himself a judge of the equities between Butler and Hubbard. His assignment to Smith, under the circumstances, could have no effect but to substitute Smith in his own place, under the same liabilities.

On this state of the facts the court below decreed the title to the land to be in Smith.

'And further, that the said defendant, John J. Orton, be, and hereby is, perpetually enjoined and forever barred from setting up or asserting any claim in or right to said premises, by virtue of or upon said bond and assignment. But this injunction and decree are not in any way to affect of operate against him, the said John J. Orton, in the prosecution of a bill pending in the circuit court of Milwaukie county, in this State, wherein he is complainant, and David Knab is defendant; this court not intending to enjoin a proceeding in the state court.'

We think the court erred in entering such a decree. Those only who have a clear, legal, and equitable title to land connected with possession, have any right to claim the interference of a court of equity to give them peace or dissipate a cloud on the title.

The complainant in this case is the volunteer purchaser of a litigious claim; he is the assignee of a secret equity for apparently a mere nominal consideration, and of the bare legal title for a like consideration. This legal title was improperly assigned to him, during the pendency of a suit in chancery to ascertain the person justly entitled to it.

Besides, the decree in this case demonstrates the impropriety of the interference of the court of the United States, and of its entertaining jurisdiction of a question of title then pending in the state court. It is true, if this were an ejectment in a court of law, the pendency of another ejectment between the same parties might not have afforded sufficient ground for a plea of auter action pendent; nor would the court have been bound, even by comity, to await the decision of the state court, or suffer the cause pending before them to be in any way affected by it. But a decree of a court of chancery, on a bill of peace, must necessarily operate by way of estoppel, as to the title of the land, and conclude all the parties to it, because it should put an end to all litigation between them. If they have suits pending in other courts, on the same question of title, they must cease. This bill acts by injunction on the party-no injunction ever goes to the court having a concurrent jurisdiction of the question. The courts of the United States have no such power over suitors in a state court. But a decree on a bill of peace which does not put an end to litigation is a mere brutum fulmen. Unless the court can make a decree which it can execute, it is a sufficient reason for refusing to take cognizance of the case. It is a rule absolutely necessary to be observed by courts who have a concurrent jurisdiction, that in all cases 'where the jurisdiction of a court and the right of a plaintiff to prosecute his suit in it have once attached, that right cannot be arrested or taken away by proceedings in another court.' This rule, it is said, 'has its foundation not merely in comity, but in necessity. If one may enjoin, the other may retort by injunction, and thus the parties be without remedy.' See Peck v. Jenness, 7 How. 625; Taylor v. Royal Saxon, 1 Wall, 311.

If the decree in this case can be of any value whatever, let us look at the consequences which may possibly and probably will arise, in case it is enforced.

Orton, claiming as the bon a fide assignee and purchaser of the title-bond given by Knab, has a bill pending in the state court to compel a transfer of the legal title. Pending this litigation, Knab assigns the legal title to a citizen of another State, who comes into the court of the United States praying an injunction against Orton from setting up his title. Suppose the state court decrees the title to be in Orton, and compels Knab and Smith, his assignee, to release the legal title to him? Now the court below has made a decree that enjoins Orton from ever setting up his title against Smith. It is true the decree protests against interference with proceedings in a state court: but unless it is construed so as to be a perfect 'felo de se,' it must be enforced in favor of complainant somehow. When the sheriff puts Orton in possession under the decree of the state court, and expels Smith, the circuit court, by its officer, must replace Smith, or imprison Orton for a contempt. This would indeed be a humiliating spectacle. Such a disreputable collision of jurisdictions should be sedulously avoided. This can only be done by refusing to entertain a bill of peace for an injunction when the title is in litigation in a court of concurrent jurisdiction; otherwise, the result of a bill of peace may be not peace but war; and, instead of dispelling a 'cloud' from the title of either party, will doubly increase the darkness and difficulty with which it was environed.

Decree of the circuit court is therefore reversed, and the bill dismissed with costs-but without prejudice.

title: Orton v. Smith/Opinion of the Court


text: Talk:Orton v. Smith/Opinion of the Court


text:
Ward v. Peck

The abandonment of a ship by her owners to the underwriters does not operate to ratify the title of one who claims her under an unauthorized sale by the master.

THIS was an appeal from the circuit court of the United States for the eastern district of Louisiana.

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

It was submitted on the record by Mr. Benjamin, for the appellant, and argued by Mr. Stanton, for the appellees.

Mr. Stanton contended that the offer to abandon did not constitute a ratification of the sale by the master, and cited Phillips on Ins. § 1576; Abbott on Shipping, 19; 18 Pickering, 83; Phillips on Ins. § 1497; 2 Peck, 249; 5 Pet. 604; 15 Mass. 341; 9 Johns. 21; 1 Caines, 573; 18 Peck, 83.

Mr. Justice GRIER delivered the opinion of the court.

title: Ward v. Peck


text: Talk:Ward v. Peck

title: Talk:Ward v. Peck


text:
Ward v. Peck/Opinion of the Court

The pleadings in this case present but the single question of the title or ownership of the Bark Mopang.

Originally, the court of admiralty in England entertained jurisdiction of petitory as well as mere possessory actions. Since the Restoration, that court, through the jealous interference of courts of law, had ceased to pronounce directly on questions of ownership or property. Petitory suits were silently abandoned, and, if in a possessory action a question of mere property arose, especially of a more complicated nature, it declined to interfere.

This 'submission to authority rather than reason' has continued till the statute of 3 and 4 Vict. c. 65, § 4, restored to the admiralty plenary jurisdiction of such questions. See case of The Aurora, 3 Rob. 133, 136, and the Warrior, 2 Dodson, 288, 2 Brown Civ. & Ad. 430.

In this country, where the courts of admiralty have not been subjected to such jealous restraints, the ancient jurisdiction over petitory suits or causes of property has been retained. In the case of The Tilton, (5 Mason, 465,) Mr. Justice Story has examined this question with his usual learning and ability. The authority of that case has never been questioned in our courts. See Taylor v. Royal Saxon, 1 Wall, 322. In the case of the New England Ins. Co. v. Brig Sarah Anne, 13 Pet. 387, in this court, the only question was the title or ownership of the brig, yet the cause was entertained without any expression of doubt as to jurisdiction.

The following agreed statement of facts presents the merits of this case:--

'That the libellants are the owners of the said Bark 'Mopang,' unless their title has been devested by the sale made by the master under the following circumstances: The bark sailed from New Orleans on or about the 29th November, 1846, for Tampico and other Mexican ports. That, on or about the 6th of December thereafter, she struck aground, was abandoned by her officers and crew on the north breakers off the bar of Tampico; that she floated over the bar, and was boarded by one Clifton, who refused to deliver her to the master; that a claim for salvage was made; that by agreement between the master and Clifton, the vessel was sold to the claimant, Ward, on the _____. It is admitted that the sale to Ward was unauthorized by the circumstances in which the master was placed.

'The libellants had a valued policy upon the vessel taken out at New Orleans. On the 9th day of January, 1847, they gave notice of abandonment to the underwriters as for a total loss, who refused to accept the same. They were sued for a total loss by libellants. Judgment found for defendant.'

This statement amounts to an admission of want of title in the claimant. The abandonment by her owners to the underwriters could not affect the title of the claimant, by way of ratification or estoppel. The insurance is but a wager between the parties to it, on the safety of the vessel. By the rule of the contract the ship may be abandoned, and the whole insurance claimed, when the damages exceed half the value.

Nothing but extreme necessity can justify the sale of the vessel by the master. The abandonment was based on the damage done to the vessel at the time of the accident. If accepted, the master became the agent of the insurer; and whether accepted or not, his act, without authority, can receive no ratification from allegations or admissions made by any party in a dispute on the contract of assurance, where the inquiry as to the act of the master was irrelevant. The defendant, having obtained possession unlawfully, was a trespasser, and can no more plead the abandonment as a confirmation of his title than if he had obtained it by theft or piracy; moreover, if the circumstances would have justified a sale by the master, no abandonment was necessary. It cannot, therefore, by any possible implication, amount to a confirmation of such sale.

The judgment of the circuit court is affirmed.

title: Ward v. Peck/Opinion of the Court


text: Talk:Ward v. Peck/Opinion of the Court

title: Talk:Ward v. Peck/Opinion of the Court


text:
Den v. Hoboken Land and Improvement Company

THESE three cases came up from the circuit court of the United States for the district of New Jersey, upon a certificate of division in opinion between the judges thereof.

As the opinion of the court answers only the third question, it may be proper to say that the first two related to a mortgage executed by Henry Ogden, as the attorney in fact of Swartwout, to Henry D. Gilpin, solicitor of the treasury. It was necessary to the case of the plaintiffs to get rid of this mortgage in the first instance, and afterwards to avoid the sale under the distress warrant. If they failed in the last, the points raised in the first two questions became of no practical consequence, and, therefore, answers to them were not returned by this court.

The case is stated in the opinion of the court. The decision of one involved the two others, as they depended upon the same principles.

It was argued by Mr. Van Winkle and Mr. Wood, for the plaintiffs, and by Mr. Zabrinski, Mr. Gillett, Mr. Butler, and Mr. Bradley, for the defendants.

The points relating to the power of attorney and the mortgage need not be noticed.

The counsel for the plaintiffs contended that the acts of congress, authorizing these proceedings under a distress warrant, were unconstitutional and void, because,--

The proceeding to establish this claim was, in its nature, a judicial proceeding, and could only be carried out under the judicial power. Const. U.S. art. 3, §§ 1, 2; 4 Devereux, 1, 13.

By the judicial power in the constitution, was meant that portion of such power which was recognized and understood to be such at the time of the adoption of the constitution. Federalist, No. 80; 2 Brock. 447.

This summary proceeding was considered and enforced as a judgment at law. 3 Wheat. 212, 222.

The warrant to sell and imprison is an execution issued upon a judgment. 9 Pet. 8.

The secretary of the treasury cannot be constituted a court for the exercise of judicial power. Const. U.S. art. 3, § 1.

The power of review of law and fact, given by the act to a court, does not change these views.

The proceeding in question took place without any hearing by the debtor and without a trial by jury, and is, therefore, unconstitutional and void. Article 7 of Amendments of Constitution; 5 Johns. 37.

As process, it was unconstitutional, because it changed the onus, and required the debtor to disprove the debt.

This process deprives of liberty and property without due process of law, contrary to the 5th article of amendments to the constitution.

This meant, by process of law, as then understood, charge, defence, judgment before and by a legally constituted court. Co. Lit. 2 Inst. 47, Magna Charta, chs. 8 and 29; 2 Kent's Com. (5th Ed.) 13; Story on the Const. § 1783; Sullivan's Lectures, chs. 39 and 40; Taylor v. Porter, 4 Hill, 146; Fletcher v. Peck, 6 Cranch, 138; Bank of Col. v. Oakley, 4 Pet. Cond. R. 443; 4 Cranch, 439; Van Zandt v. Waddell, 2 Yerger, 260; Jones's Heirs v. Perry et al. 10 ibid. 59; Bank of the State v. Charles Cooper et al. 2 ibid. 599; Lane v. Dorman, 3 Scam. 238, 241; White v. White, 5 Barbour's S.C.. R. 481-483; Holden v. James, 11 Mass. 404.

No implied or express consent can make valid what is unconstitutional.

The distress warrant was not supported by oath or affirmation. Amendments to Constitution, article 4.

If the proceeding is constitutional, still, the statute must be strictly pursued. 6 Pet. 470; 3 ibid. 8; 1 Scam. 323; 6 Wheat. 119.

But it does not appear that there were no goods or chattels upon which to levy; on the contrary, that the marshal levied upon some, but failed to sell them.

The counsel for the defendants contended:--

That these proceedings were not judicial acts. That they were the well-known proceeding by distress, established at common law, and regulated by statute in most of the States before the adoption of the federal constitution. 3 Black. Com. 3, 6.

Prior acts of congress regulated distress warrants. 3 States. at Large, 173, §§ 26, 14.

They have none of the characteristics of judicial proceedings. 1 Curt. Com. 99; 13 How. 40.

This court has laid down the distinction between the judicial power intended by the constitution, and this power conferred upon a particular officer. 8 Pet. 8; 6 ibid. 47; 13 How. 4, 52, note.

Mr. Justice CURTIS delivered the opinion of the court.


text: Talk:Den v. Hoboken Land and Improvement Company