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

1st. Was the capture of the property made 'by an enemy,' within the meaning of the statute?

2d. Was the property, at the time of its capture, 'in the military service of the United States?'

3d. Does the tenth article of the contract, made in the case, impose upon the owner the risk to which the property was exposed?

So far as it may be necessary, these questions will be considered.

First. The allegations of the petition respecting the character, numbers, nation, or position of the capturing party are quite meagre. It is said merely, that the train 'was attacked by a band of hostile Indians,' and that the oxen 'were captured by the said band of hostile Indians.' A 'band' means a company of persons, perhaps a company of armed persons, as we may well assume to have been the case in this instance. We have no means of Knowing how many persons composed this band, what was their organization if any, or under what pretence, name, or authority they made the attack and capture. We know only that they were Indians, and that they were hostile. The fact that they were Indians gives no light. Many Indians, both in tribes and as individuals, were friendly to the United States in its late civil contest, as others were hostile. The Indian tribes and individuals are subject to the laws of the United States, and of the States in which they are located. #fn-s-s The claimants do not even state to whom or to what these Indians were hostile. They may have been hostile to the government of the United States, they may have been hostile, inimical, or unfriendly to the owners of the cattle only. The hostility may have been from the enmity of an organized community to the United States as a party engaged in war, or it may have been a hostility to the owners of cattle, because they had the cattle and because the Indians desired the animals for their own use. In the one case the capture would have been that of an enemy, in the other that of marauders and plunderers only. The petition should have been more full and more specific in its statements. The law assumes that these deficiencies in it exist because the petitioner could not with advantage to his case supply them.

Second. Was the property thus captured in 'the military service of the United States?' By his contract of the 25th of July, 1864, did Stuart enter into the military service of the United States, and was he acting in such military service when his property was captured, or was he a transporter, a carrier, a contractor merely? By the first article of his contract he undertakes to transport 'all such military stores or supplies as may be turned over to him for transportation,' from Forts Riley and Leavenworth, and the town of Kansas, to New Mexico or Colorado. In the second, fourth, fifth, sixth, eighth, eleventh, twelfth, thirteenth, and sixteenth articles the duty is clearly pointed out and named as that of transporting and delivering. A contractor or carrier is in no sense a soldier. In no just sense is he engaged in war, although he may transport the articles used in war. He carries forth and he carries back supplies and stores for those who are engaged in war, but takes no personal part in it. He carries, in the present case, during the period between April and September, of the year 1864, from the points to the points named. There is no allegation that in the month of July, when the capture took place, actual war was going on in Kansas, or in the region between Kansas and New Mexico, or Colorado, or that the train from which the capture was made was a part of a military expendition. The stores, supplies, baggage trains, the impedimenta of an army, are undoubtedly a portion of the army, and those engaged in the management and control of them are in the military service. These are indeed vital to its existence, and their collection and protection are among the most anxious duties of a careful commander. But the collection and transportation from post to post of stores and supplies, remote from the seat of actual war, not forming a portion of an advancing or retreating army, is quite another thing. These letter duties are those of a commissary or quartermaster, and not of a commanding officer. They may be performed by soldiers or by civilians, by the army or by contractors. Those engaged in them may or may not form a portion of an army.

That the statute of 1849, under which this claim is made, was intended for the indemnity of those engaged in the actual military service of the United States, that is, for enlisted men while in the performance of their duties as such, is plain enough.

This second section, under which the present claim is made, provides in its first clause for an indemnity for the loss of any horse, mule, ox, wagon, &c., arising from capture or destruction by an enemy, or where the property has been abandoned or destroyed by the order of a commanding officer, while such property was in the military service of the United States, either by impressment or by contract. This military service is the same as that spoken of in the first section, to wit, in battle, or service as soldiers under the command of officers of the army. The destruction, abandonment, or capture is that of the same enemy, to wit, an organized hostile force. And the same rule is applicable whether the property was in such actual service by the consent and agreement of the owner, as by hire, or whether it had been forcibly seized by the government, that is to say, 'either by impressment or contract,' unless the owner had agreed himself to bear the hazard of the loss.

The next paragraph of the section provides for a loss by death or abandonment in consequence of failure on the part of the United States to supply sufficient forage, or where the loss has occurred 'by unavoidable accident' while such property 'was in the service aforesaid.' In each case the value of the article to be paid, is its value at the time such person 'entered the service.'

To all these provisos is added the final and sweeping qualification, in these words: 'Provided, it shall appear that such loss, capture, abandonment, destruction, or death was without fault or negligence on the part of the owner of the property, and while it was actually employed in the service of the United States.'

Was the claimant personally in the service of the United States, and when did he enter it, if at all, and what were his duties? It does not appear that he was obliged to be with the train in person, or even that he was with it at the time of the loss.

Upon the claimant's construction of the statute, if his whole train had been destroyed by lightning or by tempests, by unexpected drouth or overwhelming heat, his claim for indemnity would have been perfect. A destruction 'by unavoidable accident' of any horse, mule, ox, wagon, or cart is provided for with equal clearness as where the loss occurs by abandonment or by the capture of an enemy.

This construction is not admissible. The claimant was a carrier or transporter of stores or supplies for the United States, which stores and supplies were of a military character, and which would be used by the United States as their convenience or necessity required. He contracted to carry the stores, and the government contracted to pay him $1.97 per hundred pounds. He was not in the military service of the United States, and can, therefore, claim no benefit under the statute of 1849.

It is not perceived that the claimant's case is aided by the statute of 1863. #fn-s-s-s That statute enacts that the provisions of the act of 1849 shall be 'applicable to steamboats and other vessels, to railroad cars and engines, when destroyed under the circumstances provided for in the said act.'

We know, from the recent events of our history, that steamboats and railroad trains were actually and usefully employed as adjuncts of the army, that they were used in military expeditions, and on some occasions that the trains were captured and destroyed by the enemy. These engines, both of war and of peace, when employed in the actual military service of the United States, are entitled to the same indemnity as the other property referred to.

The tenth article of the contract requires no discussion. It is quite immaterial in any view of the case.

JUDGMENT AFFIRMED.


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

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


text: Willett v. Fister

title: Willett v. Fister


text: Talk:Willett v. Fister

title: Talk:Willett v. Fister


text:
Willett v. Fister/Opinion of the Court

APPEAL from the Supreme Court of the District of Columbia; the case being thus:

John Fister, a butcher, had a stall in market where he sold pork. He bought his hogs of V. Willett and W. E. Clark, trading as V. Willett & Co., and there was a pass-book held by Fister in which the debits and credits were entered of the transactions between the parties; the original entries being made on the commercial books of Willett & Co. On Fister's pass-book, under date of 21st November, 1965, was the following entry:

'By cash, on 30th of October, $1500.'

'1865, October 30th, by cash, for proceeds of stall, $1500.'

The account on the pass-book, as well as the account on Willett & Co.'s books, were all closed on December 14th, 1865, by 'a note, at four months from this date, for $1726.69.'

The pass-book and the defendant's commercial books were all in the handwriting of Willett, who died in 1869.

On the 15th of June, 1866, Fister confessed to V. Willett & Co. a judgment for $6226, the amount of several notes which he had given for balances due from him in running account; and subsequently conveyed several lots of ground, the proceeds of which on sale of them were to be applied towards payment of the judgment.

In this state of things, on the 15th of December, 1870, Willett being now dead, Fister filed a bill in the court below against his executors and Clark, praying that the judgment which he had confessed might be set aside; the ground of the bill being, as was alleged, that he, Fister, was an ignorant man, scarcely able to write his name, and had been induced to give the judgment for $6226, not observing that Willett & Co. had not credited him with a payment of $1500 made some months before the confession of it, for which payment he, Fister, had then and still had a receipt. The receipt was without date, and in these words:

'Received of John Fister, fifteen hundred dollars on account, which is not on his book, owing to his not having it along to-day.

'V. WILLETT & CO.'

It did not appear that any other receipt than this, excepting one for $800, signed by Clark, and dated October 20th, 1863, had ever passed between the parties. The pass-book and Willett & Co.'s books were apparently the only records.

The answer, both by the defendant Clark and the executors of Willett, gave full details of the transactions between Fister and V. Willett & Co.; averred that Fister made but one payment to them of $1500; denied that he had a receipt for $1500 for which he had not already received credit; averred that the judgment was properly entered for the amount due and no more, 'and that all the credits to which the plaintiff was entitled were allowed him; and that he at that time well understood the same, and was perfectly satisfied with the said settlement.'

The only question in the case was on of fact: Did the receipt without date refer to the transaction of 30th October, 1865, or to another amount of $1500 which Fister alleged had been paid in April, 1865?

The case being at issue, Adeline Fister, wife of the complainant, was examined; this examination being on the 5th of February, 1871; and the defendants objecting to her testimony as not competent under the acts of Congress, in virtue of which it was offered. Mrs. Fister said:

'I attended to the principal part of my husband's business in market; received and paid out the money for him; I was in fact the banker of my husband. I got the receipt in April, 1865; I know it was then, because I was cleaning some shad and wanted some change, and I went up to where my husband's jacket was hanging on the sideboard, and run one of my hands down one of his pockets to see if there was any money in it; I pulled out this paper; I then called in my daughter, Maria, and she read it. . . . After she read it, I carelessly threw it in the drawer and didn't think anything more about it for some time; I looked at it again afterwards, and put it in an old book which Mr. Willett had laid aside, and not take it out again until a year subsequent; I never showed the receipt to my husband; he never saw it; I did not think it was anything of any account; I merely laid it aside; I did not know exactly what it was for; I did not call my husband's attention to it when he went to make the settlement with Willett, for I did not know of a settlement till he came back; I did not call his attention to it when he came back; I found it in 1865; Mr. Willett died in 1869; I cannot say for what that receipt was given; it might have been given for the $1500, or it might not, that I sent my husband with; I can only swear as to the time I got the receipt.' 'I had often sent Mr. Willett a roll of money of $1500 or $2000 at a time; the way he did not have it on the books is this: this $1500 or $2000 was in payment, perhaps, of two or three lots of hogs, and I got credit on the books for each lot of hogs separately.'

'Question. Did you ever pay him as much as $2000 in one day?'

'Answer. I don't know as I paid him $2000, but I know I paid him $1700 in one day, and I paid large amounts at other times; I remember that in January or February, 1865, I sent him $1500; my husband was going down, and having worried me a great deal about the book, not being able to find it, I said, 'I wish to heaven you and Mr. Willett would settle your business together and not trouble me.' I wrapped up one roll of $600 with red string, and I took a piece of flannel and tied up another bundle of $900 with it; he put the $600 into his side-pocket and the other bundle of $900 into his pantaloons pocket.'

Mrs. Maria Clements, daughter of the complainant, was also examined. She said:

'One day my mother called me to her and said she had a receipt there that she could not understand; it had Willett's name on it; I read it, she holding it; I told her it was a receipt for $1500, with no day and date; that was in the month of April, 1865; after I read it, I gave it back to her and told her to take care of it; I know it was in April, 1865, because she asked me to remember, and I did; I also mentioned the day, but I have now forgotten that.'

'Question. What makes you recollect it was April, 1865?'

'Answer. When I said, 'There is no day and date,' she said, 'This is the way your father has been doing business; he takes a receipt without day or date; now we will remember this;' that is what makes me recollect it was in April, 1865-my telling her it was in April, 1865; that impressed it on my memory; it could not have been in 1866.'

'Question. Have you had any conversation with her about it since April, 1865, until to-day?'

'Answer. We have often talked it over, but I could not state how often; I know nothing further touching the matter in controversy.'

John Fister in account with V. Willett & Co.

January 5. By cash, $402.13; 12, cash, $219.12, $621

12. By cash, 349.00; 20, cash, 371.51, 720

29. By cash, 525.15; 7 February, do., $90.22, 615

February 7. By cash, 809.78; 14 February, do., 116, 925

14. By cash, 519.10; 21 February, do., 369.52, 888

21. By cash, 325.52; 28 February, do., 516.09, 841

28. By amount over, 120 19 The pass-book showed that, taking the various sums total of cash paid by Fister, from January to November, 1865, the addition of $1500 to the amount paid in any one month would make a much larger sum than was ever paid in any other month. For example, the cash receipts were:

Clark, one of the defendants, was also examined, and he testified that in his presence, in the autumn of 1865, Fister paid Willett $1500, saying that he had not his pass-book with him; that Willett gave him a receipt; that so far as the witness knew, Fister had never paid any other sum of $1500 afterwards; that Fister, in confessing the judgment to secure the notes which he had given, said 'that he thought he had done right, as he owed the debt and could not pay the money and wanted to secure it,' and that he had never made to the witness any complaint that the judgment had been confessed for too much.

The court below sustained the claim of the complainant to the two credits and the defendants appealed.

Messrs. Reginald Fendall and T. J. Durant, for the plaintiff in error; Messrs. C. Ingle and B. H. Webb, contra.

Mr. Justice STRONG delivered the opinion of the court.

We need not inquire whether the deposition of Adeline Fister, the wife of the complainant, was properly received, for, with her testimony, there is not sufficient evidence to support the decree of the court below.

The bill was not filed until December 15th, 1870, four years and a half after the alleged mistake. During that long period the complainant made no pretence that he had not received all the credits to which he was entitled. Constantly assenting by his silence to the correctness of the settlement, and of the judgment he had confessed, he conveyed several lots of ground to the defendants and others, that the proceeds of the sales thereof might be applied in payment, and it was not until after the death of the person who received the money which he now claims was not credited that this suit was brought. Certainly after such delay, and after such long apparent acquiescence in the correctness of the settlement, the evidence ought to be very clear that a mistake was in fact made, in order to justify unravelling what was done.

The settlement included several notes which the complainant had given for balances due from him, according to a running account. This account had been kept in the books of Willett & Co., and also in a pass-book held by him. It is not contended that the judgment was not taken for the sums for which the notes had been given, or that the notes were for a larger aggregate than appeared to be due by the accounts kept, both in the complainant's pass-book and in the books of the defendants. The contention is that a payment was made by the complainant, which did not appear on any of the books, and which was not credited to him. The evidence of this is an undated receipt for $1500. But the books of the defendants show a credit given for that sum on the 30th of October, 1865, and in the pass-book there is an entry of credit for the same sum, under date of November 21st, 1865, as having been received October 30th. As the receipt itself is the only receipt which appears ever to have been given, except one for $800, dated October 20th, 1863, signed W. E. Clark, and as it states that the complainant had not his pass-book along when the payment was made, it would seem to be a reasonable presumption that it refers to the payment made on the 30th of October, and which was afterwards, on the 21st of November, credited in the pass-book. If so, there was plainly no mistake in the notes and none in the judgment. Then certainly the complainant received every credit which was his due.

But Mrs. Fister testifies that she saw the receipt in April, 1865, before the payment of October 30th was made. If she is correct in that, then the payment made in October was a different payment from that acknowledged in the receipt. But we are satisfied that her memory in regard to the time when she first saw the paper is at fault. There is nothing in regard to which a witness is more likely to be mistaken than in fixing the date at which a transaction long past took place. She was examined as a witness in 1871, nearly six years after the time when she says she found the receipt in her husband's pocket. When she found it, according to her own account, she did not think it of any importance. She 'carelessly threw it in a drawer, and did not think any more about it for some time.' Then she put it in an old book and laid it aside, and did not take it out for a year. She did not call her husband's attention to it before he settled with the defendants. She 'was not aware she had it.' She 'never showed it to her husband,' though she knew when he went to make the settlement. She did not think it was of any account, and there was no circumstance associated with her finding it that could have tended to impress the time upon her memory. She says she knows it was in April, 1865, because she was cleaning shad and wanted change; but she may as well have been cleaning shad in 1866 as in 1865. The same remarks are applicable to the testimony of Maria Clements, the daughter. She says she remembers it was in April, 1865, because her mother told her to remember, saying, 'This is the way your father has been doing business. He takes a receipt without day or date. Now, we will remember this.' Rather inconsistent this is with the testimony of the mother, who declares that she thought the paper of no importance. It may be these witnesses have persuaded themselves they saw the receipt in April, 1865. They have often talked the matter over with each other. But there are many improbabilities in their statements. Mrs. Fister says she was in fact her husband's banker. She chiefly made the payments. She even goes so far as to say that she sent to the defendants, in January or February, 1865, $1500. Not, indeed, in one sum. Her language is: 'I wrapped up one roll of $600 with red string, and I took a piece of flannel and tied up another bundle of $900 with it. He (her husband) put the $600 into his side pocket, and the other bundle of $900 into his pantaloons pocket.' Such a minute recollection of a six-year-old transaction is almost too remarkable to be credited. But it is still more remarkable that neither the husband nor the wife discovered that they had no credit for so large a payment. The accounts show that on the 28th of February, 1865, on the transactions running through the months of January and February there was a balance of $2120.19, for $2000 of which he then gave his notes. If he had made the payment which he now asserts, the balance would have been only $620.19. It is incredible that he would have given notes for $2000 under such circumstances, for the payment must then have been fresh in his recollection. In addition to this we have the habit of business between the parties during the years 1864 and 1865, exhibited at large in the defendants' books and in the complainant's pass-book. If $1500 were paid in any month in addition to the sums credited, it would have been entirely outside of the usual course of business. It must have made an impression upon the complainant's memory when he gave the notes and confessed the judgment.

Looking, therefore, at the probabilities of the case as deduced from the evidence, at the long delay of the complainant to assert any claim, and at the fact that Mr. Willett had died before the bill was filed, we think there is no sufficient proof of a mistake to warrant a decree sustaining to any extent the complainant's bill.

DECREE REVERSED, and the case remitted with instructions to

DISMISS THE BILL.

title: Willett v. Fister/Opinion of the Court


text: Talk:Willett v. Fister/Opinion of the Court


text:
Masterson v. Howard

APPEAL from the Circuit Court for the Western District of Texas; the case being thus:

On the 17th of February, 1851, Bainbridge Howard, a citizen of Louisiana, filed his bill in the court below against a certain Herndon, and one Maverick, residents of Texas, setting forth that 'on or about the 22 November, A.D. 1766, the government of Spain, according to the forms of law and by the regularly constituted officers of the government, granted to the Indians of the population of the Mission of San Jos e, a certain tract or parcel of land, situated, lying, and being in what is now the county of Medina, in the State of Texas,' &c., describing it.

The bill alleged that through regular mesne conveyances he, Howard, the complainant, was the owner of the land, 'all of which will more fully and at large appear by the grant to said Indians, and the chain of conveyances to your orator, to which for greater certainty at the hearing your orator begs leave to refer.' It stated further that he was in possession, and that the defendants had made sundry locations of land certificates upon, and claimed patents to the said land, which constituted a cloud upon his title; wherefore, and to avoid a multiplicity of suits, he brought his suit in equity.

The defendants were interrogated as to what locations, &c., they had made within the boundaries of the described tract, and in conflict with the complainant's claim; and what locations and surveys others had made; and the bill prayed,

'That, by decree to be rendered herein, the locations, surveys, and patents, if any, made within the limits of your orator's tract or parcel of land aforesaid, may be determined and held to be void, and thereby the cloud impending over the title of your orator be removed; or that after establishment of the right in such manner as this court may direct by final decree to be then rendered, your orator may be quieted in his title and possession aforesaid, and all obstruction to the full and peaceable enjoyment of his property removed; or that, if your orator is mistaken in the special relief hereby asked, such other or further relief be extended to him, or decree rendered in the premises, as the nature of the case may require.'

The complainant having died, a supplemental bill in the nature of a bill of revivor was filed, and presented in the name of his heirs, representing themselves, one as a citizen of California and the others as citizens of Illinois. Adopting the allegations of the original bill touching the grant of the land from Spain, it represented that the title granted by Spain to the Indians of San Jos e became vested in one John McMullen, with actual possession; that McMullen's title had become equitably vested with possession in Howard; that Howard's title and possession were now in the complainants; and that the heirs of McMullen (whom the supplemental bill made parties) neglected to convey the legal title.

In October, 1860, the default of the defendants, Herndon and Maverick, in not answering the supplemental bill, was entered, with an order that the bill be taken as confessed against them. In January, 1861, the court set aside this order so far as it affected the defendant, Herndon, and granted leave to him, 'upon condition that he shall pay all the costs of the complainant in this case, for which execution may issue upon this decree,' to answer until March following; but confirmed the order as to the defendant, Maverick, and decreed that the complainants 'have and recover of said Maverick the tract of land in the original bill described; and that their title to the same be and is hereby decreed to be free from all clouds cast thereupon by said Maverick, and all persons claiming by, through, or under him. And that the patents, locations, and surveys obtained by said Maverick, in conflict with the title of the complainants, which is decreed to be a good title, are hereby adjudicated to be null and void.' A reference was made to a master to ascertain the facts sought to be discovered, and a decree of specific performance was decreed against the heirs of John McMullen. An execution subsequently issued and a certain part of the costs were obtained, but not all.

The answer of Herndon having been filed without (as the complainant alleged, though this was denied on the other side) his having complied with the terms imposed, his default was entered on the 4th of March, 1861, and an order made taking the supplemental bill as confessed against him. On the 20th of June, 1866, the court ordered the answer of Herndon to be struck from the files, and confirmed and made final the order taking the supplemental bill as confessed against him. The court then proceeded to enter a decree joint in form against both Maverick and Herndon.

From this decree both parties appealed; the defendant, Herndon, through his assignee in bankruptcy, he having since the decree become bankrupt. This appeal had, by consent of the assignee, been dismissed as to him.

Messrs. W. W. Boyce and G. W. Paschall, for the appellant:

1. The decree against Maverick, entered January, 1861, was not a final decree. A reference was made to a master to ascertain the facts sought to be discovered; and until the coming in of his report and subsequent action on the part of the court by way of decree, there was nothing finally decreed in the case.

2. Neither should Herndon's answer have been stricken from the files. An execution issued and the costs were certainly paid in part. No proof is given that they were not fully paid, and the assumption that they were not is hardly justified.

3. There was nothing in the bill or in the prayer of it, which justified the decree made that the title of the complainants was 'a good title.' This part of the decree was supererogatory. The claim of the defendants, their locations, & c., which the bill sought to have cleared away, might all have been bad without the complainant's title being good.

4. But without pressing these points, there remains an objection that goes to the foundation of the decree. The decree covers action had upon a motion of 4th March, 1861 (on which final action was had 20th June, 1866), without notice to the defendants, in behalf of citizens of California and Illinois against citizens of Texas. Now this court historically knows that secession was as much an accomplished fact on the 4th of March, 1861, as it ever was; that the army of the United States in Texas had surrendered to the State convention; that the secession ordinance had been ratified by the people, and all Federal officers in that State had ceased their functions. The civil war had in fact commenced. Neither party could take any order under the motion or upon the answer. The District Courts of Texas were not organized for any purpose, until the spring of 1866. And it was by the proclamation of 20th August, 1866, that the President declared that 'subsequently to the second day of April, 1866, the insurrection in the State of Texas has been everywhere suppressed and ended, and the authority of the United States has been successfully and completely established in said State of Texas,' &c.

The decree then being in behalf of citizens of California and Illinois (loyal States), against citizens of Texas (a State in rebellion), was, according to decisions of this court, a decree between alien enemies before the termination of the war, and, therefore, a nullity. The case of The Protector settled that the civil war was not closed in Texas until 20th August, 1866. And Dean v. Nelson, and The Railroad Company v. Trimble, hold such decrees to be void.

Mr. T. T. Crittenden, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Masterson v. Howard


text: Talk:Masterson v. Howard

title: Talk:Masterson v. Howard


text:
Masterson v. Howard/Opinion of the Court

It is unnecessary to determine whether the decree against Maverick, entered in January, 1861, is to be deemed final or interlocutory. The subsequent decree against Herndon, entered in June, 1866, is in form against both of the defendants. The court below, in its subsequent proceedings, treated the latter decree as the one which finally determined the rights of the parties in the case, and from that decree the appeal is taken.

It is also unnecessary to determine whether the court erred in striking Herndon's answer from the files, as his assignee makes no objection to the ruling, or to the decree which followed. He has consented through his counsel to the dismissal of his appeal.

The only question, therefore, for our consideration upon the record, is whether the allegations of the supplemental bill, and of the original bill to which it refers, are sufficient to support the decree thus entered upon the default of the defendants. And upon this question there can be no doubt.

The suit was brought on the equity side of the court to quiet the title of the complainant to a tract of land situated in the State of Texas, and prevent harassing and vexatious litigation from a multiplicity of suits. The original bill alleges, in substance, that the complainant is in possession and seized in fee of the tract, deraigning his title from a grant issued by the government of Spain, in 1766, to Indians of the mission of San Jos e, in Texas; that the defendants have made locations and surveys of large parcels of the tract under certificates or warrants issued by the Republic of Texas, by virtue of which they assert a right to the parcels thus located and surveyed, and have thereby created a cloud upon the title of the complainant, and disturbed his possession. The bill prays that the surveys and locations, and patents thereon, if any have been obtained, may be determined and declared void, and the cloud impending over the title of the complainant, be thereby removed; or that the right of the complainant being established, he may be quieted in his title and possession, and all obstruction to the peaceable enjoyment of his property be removed; or that he may have such other or further relief as the nature of the case may require. The original complainant having died, a supplemental bill, in the nature of a bill of revivor, was filed and prosecuted in the name of his heirs. It shows a change of parties consequent upon the death of the original complainant, and the death of several of the original defendants; and brings in as new parties the heirs of one John McMullen, through whom the complainant traced his title. But so far as it concerns the defendants, Maverick and Herndon, who are alone represented by the appellants, its allegations are substantially the same as those of the original bill.

The decree of the court entered on the 20th of June, 1866, responded substantially to these allegations. It adjudged the title of the complainants to the tract in question 'to be free from all clouds cast thereon' by the defendants, Maverick and Herndon, and all persons claiming under them, and that 'all patents, locations, and surveys obtained or owned' by them, in conflict with the title of the complainants, which was decreed to be a good title, were null and void, and directed the defendants to cancel and remove them. The clause of the decree directing that the complainants have and recover the land of the defendants may be supported under the general prayer of the bill, if, pending the suit, the defendants had gone into possession of any of the parcels located and surveyed by them; and, if such were not the case, the clause could not in any way prejudice their rights.

But the counsel of the appellant Maverick, looking outside of the record to the condition of the country at the time the decree was rendered, takes the position that the decree is null and void because rendered by the court before the proclamation of the President of August 20th, 1866, announcing the close of the war in Texas, contending that, as the complainants were citizens of California and Illinois, and the defendants citizens of Texas, it was a decree in a suit between public enemies, and, therefore, void.

If it were true, which is not admitted, that the parties to the present suit were to be regarded as public enemies after the cessation of hostilities in Texas, and the restoration of the authority of the United States, until the proclamation of the President was issued, in August, 1866, the conclusion drawn by counsel would not follow. The existence of war, does, indeed, close the courts of each belligerent to the citizens of the other, but it does not prevent the citizens of one belligerent from taking proceedings for the protection of their own property in their own courts, against the citizens of the other, whenever the latter can be reached by process. The citizens of California and Illinois had a right to seek the courts of the United States in Texas, or to proceed with suits commenced therein previous to the war, to protect their property there situated from seizure, invasion, or disturbance by citizens of that State, so soon as those courts were opened, whether official proclamation were made or not of the cessation of hostilities.

In the case of The Protector, it was held that the war began in the Gulf States at the date of the proclamation of intended blockade of their ports by the President. That was the first public act of the executive in which the existence of the war was officially recognized, and to its date the courts look to ascertain the commencement of the war. And, so far as the operation of the statutes of limitation in the several States is concerned, to determine the period which must be deducted for the pendency of the war from the limitation prescribed, it was held in the same case that the war continued until proclamation was in like manner officially made of its close. This is the extent of the decisions of this court.

It is well known that before such official proclamation was made courts of the United States were held in the several States which had been engaged in the rebellion, and their jurisdiction to hear and determine the cases brought in them, as well before as after such proclamation, is not open to controversy.

JUDGMENT AFFIRMED.

[See the next case.]


text: Talk:Masterson v. Howard/Opinion of the Court


text:
Washington University v. Finch

APPEAL from the Circuit Court for the District of Missouri; the case being thus:

Daily and Chambers purchased of Elliott, in March, 1860, certain real estate in St. Louis, Missouri. For the principal part of the purchase-money they gave him their promissory notes, and to secure the payment of these notes they made a deed of trust to one Ranlett, conveying the property thus purchased, with authority to sell it, on giving notice in a newspaper of the sale, in satisfaction of these notes if they were not paid as they fell due.

The notes were assigned by Elliott to the Washington University, and the money being unpaid and due, the real estate so conveyed was sold by Ranlett in accordance with the terms of the trust deed, to the University, on the 9th day of December, 1862. The trustee made to the University, which was a corporate body, a deed for the land, and the University afterwards sold it for value to one Kimball.

Daily and Chambers were both citizens of the State of Virginia, residing in the county of Mecklenburg, when they bought the land of Elliott, and have resided there ever since. Daily having been declared a bankrupt and one Finch having been appointed his assignee, Finch, along with Chambers, the other purchaser, filed a bill on the chancery side of the Circuit Court of the United States for the District of Missouri to have the sale decreed void, and to have the proceeds of the sale of the land by the University to Kimball declared a trust fund for their use; and the court decreed accordingly. The ground of this decree was that the sale by the trustees took place during the late civil war, and that Daily and Chambers were citizens of the State of Virginia, resident within that part of the State declared by the President to be in a state of insurrection. From the decree thus made the present appeal was taken.

Mr. W. H. Letcher, in support of the decree,citing Hanger v. Abbott, and Dean v. Nelson, argued that inasmuch as all commercial intercourse was forbidden between the people of the loyal States and those residing in the insurrectionary districts, both by virtue of the act of Congress and by the principles applicable to nations in a state of war, all processes for the collection of debts were suspended, and that the complainants being forbidden by these principles to pay the debt, there could be no valid sale of the land for default of such payment. He also argued that the power in the deed to sell, which required a notice in a newspaper of the sale, was intended to apprise the complainants of the time and place of sale; and that inasmuch as it was impossible for such notice to reach them, situated as they were, no valid sale could be made.

Mr. J. M. Krum, contra, for the appellant.

Mr. Justice MILLER delivered the opinion of the court.

title: Washington University v. Finch


text: Talk:Washington University v. Finch

title: Talk:Washington University v. Finch


text:
Washington University v. Finch/Opinion of the Court

The case before us was not one of a sale by judicial proceeding. No aid of a court was needed or called for. It was purely the case of the execution of a power by a person in whom a trust had been reposed in regard to real estate, the land, the trustee, and the cestui que trust all being, as they had always been, within a State whose citizens were loyally supporting the nation in its struggle with its enemies. The conveyance by the complainants to Ranlett vested in him the legal title of the land, unless there was a statute of the State of Missouri providing otherwise, and if there was such a statute it still gave him full control over the title for the purposes of the trust which he had assumed. No further act on the part of the complainants was necessary to transfer the title and full ownership of the property to a purchaser under a sale by the trustee.

The debt was due and unpaid. The obligation which the trustee had assumed on a condition, had become absolute by the presence of that condition. If the complainants had both been dead, the sale would not have been void for that reason, if made after the nine months during which a statute of Missouri suspends the right to sell in such cases. If they had been in Japan it would have been no legal reason for delay. The power under which the sale was made was irrevocable. The creditor had both a legal and moral right to have the power made for his benefit executed. The enforced absence of the complainants, if it be conceded that it was enforced, does not in our judgment afford a sufficient reason for arresting his agent and the agent of the creditor in performing a duty which both of them imposed upon him before the war began. His power over the subject was perfect, the right of the holder of the note to have him exercise that power was perfect. Its exercise required no intercourse, commercial or otherwise, with the complainants. No military transaction would be interfered with by the sale. The enemy, instead of being strengthened, would have been weakened by the process. The interest of the complainants in the land might have been liable to confiscation by the government, yet we are told that this right of the creditor could not be enforced, nor the power of the trustee lawfully exercised. No authority in this country or any other is shown to us for this proposition. It rests upon inference from the general doctrine of absolute non-intercourse between citizens of States which are in a state of public war with each other, but no case has been cited of this kind even in such a war.

It is said that the power to sell in the deed of trust required a notice of the sale in a newspaper, that this notice was intended to apprise the complainants of the time and place of sale, and that inasmuch as it was impossible for such notice to reach the complainants no sale could be made. If this reasoning were sound, the grantors in such a deed need only go to a place where the newspaper could never reach them to delay the sale indefinitely, or defeat it altogether. But the notice is not for the benefit of the grantor in the sense of notice to him. It is only for his benefit by giving notoriety and publicity of the time, the terms, and the place of sale, and of the property to be sold, that bidders may be invited, competition encouraged, and a fair price obtained for the property. As to the grantor, he is presumed to know that he is in default and his property liable to sale at any time; and no notice to him is required.

But the authority of certain cases decided in this court is relied on, in which the effect of the state of the late civil war is considered, in judicial proceedings, between parties residing on different sides of what has been called the line separating the belligerents.

The first of these is that of Hanger v. Abbott. That case laid down the proposition that when a citizen of a State adhering during that war to the national cause brought suit afterwards against a citizen residing during the war within the limits of an insurrectionary State, the period during which the plaintiff was prevented from suing by the state of hostilities should be deducted from the time necessary to bar the action under the statute of limitations. It decided nothing more than this. It did not even decide that a similar rule was applicable in a suit brought by the latter against the former. And it decided nothing in the question now before us, even if the sale here had been under a judicial proceeding.

Another case is that of Dean v. Nelson. If the present had been a sale under judicial order, that case would bear some analogy to this, and some expressions in the opinion more general than was intended may, as this court has already said, tend to mislead. That case was a proceeding within an insurrectionary district, but held by our military forces, in a court established by military orders alone. It was a proceeding to foreclose a mortgage on personal property, and it was instituted against parties who had been expelled by military force from their residence, and who were forbidden absolutely by the order which expelled them, and which was addressed to them by name, from coming back again within the lines of the military authority which organized the court. Inasmuch as, without their consent and against their will, they were thus driven from their homes, and forbidden to return by the arbitrary though probably necessary act of the military power, we held that a judicial decree by which their property was sold during the continuance in force of this order was void as to them. To that doctrine we adhere, and have repeated it at this term in the case of Lasere v. Rochereau.

But this court has never decided nor intentionally given expression to the idea that the property of citizens of the rebel States, located in the loyal States, was, by the mere existence of the war, exempted from judicial process for debts due to citizens of the loyal States contracted before the war. A proposition like this, which gives an immunity to rebels against the government not accorded to the soldier who is fighting for that government, in the very locality where the other resides, must receive the gravest consideration and be supported by unquestioned weight of authority before it receives our assent. Its tendency is to make the very debts which the citizens of one section may owe to another an inducement to revolution and insurrection, and it rewards the man who lifts his hands against his government by protection to his property, which it would not otherwise possess, if he can raise his efforts to the dignity of a civil war.

The case of McVeigh v. United States, holds that an alien enemy may be sued though he may not have a right to bring suits in our courts. And that when he is sued he has a right to appear and defend. 'Whatever,' says the court, 'may be the extent of the disability of an alien enemy to sue in the courts of the hostile country, it is clear that he is liable to be sued, and this carries with it the right to use all the means and appliances of defence.'

And this proposition is supported by the authorities there cited as well as by sound reason. If such be the rule in regard to alien enemies in a war between independent states, it should be quite as applicable, if not more so, between citizens of the same government who are only enemies in a qualified sense in a civil war.

We are of opinion that the sale by the trustee in the case under consideration was a lawful and valid sale, and that the bill of the complainants should have been dismissed. The decree of the Circuit Court is, therefore, REVERSED, with directions to

DISMISS THE BILL.


text: Talk:Washington University v. Finch/Opinion of the Court


text:
Best v. Polk

ERROR to the District Court for the Northern District of Mississippi; the case being thus:

By virtue of a treaty made October the 20th, 1832, the Chickasaw Nation of Indians, in the belief that it was better to seek a home west of the Mississippi, ceded their lands to the United States, who agreed to survey and sell them on the same terms and conditions as the other public lands, and to pay the proceeds to the nation. In order, however, that the people of the tribe should not be deprived of a home until they should have secured a country to remove to, they were allowed, after the survey and before the first public sale of their lands, to select out of the surveys a reasonable settlement for each family, and to retain these selections as long as they were occupied. After this occupation ceased the selected lands were to be sold and the proceeds paid to the nation.

On the 24th of May, 1834, a little more than a year after the date of the first treaty, another treaty was made with these Indians, essentially changing the provisions of the former one. These changes were made owing to the supposed inability of the Chickasaws to obtain a country within the territorial limits of the United States adequate to their wants, and to the desire expressed by them to have within their own direction and control the means of taking care of themselves. Accordingly they abandoned the idea of selecting, out of the surveys, lands for temporary occupancy, and, in lieu thereof, reservations of a limited quantity were conceded to them. The scheme embraced the whole tribe-heads of families as well as all persons over twenty-one years of age, male and female, who did not occupy that relation. The sixth article of the treaty reserved a section of land to each of this latter class of Indians, a list of whom, within a reasonable time, seven chiefs (named in the treaty) were to make out and file with the agent. On this officer certifying that the list was believed to be accurate, the register and receiver were to cause the locations to be made.

In this state of things, the United States, on the 13th of March, 1847-reciting that one James Brown had paid, 'according to the provisions of two several treaties with the Chickasaw Indians, dated October 20th, 1832, and May 24th, 1834,' &c., for the section 23, in township 5, of range 11 west, in the district of lands subject to sale at Pontotoc, Mississippi, containing, &c., 'according to the official plat of the survey returned into the General Land Office by the surveyor-general, which said tract has been purchased by the said James Brown'-granted the section of land described to the said Brown in fee.

Brown granted it to one Polk. Hereupon, a certain Best being in possession, Polk sued him in ejectment. The defendant set up that prior to the issuing of the patent to Brown the section had been located to an Indian, named Bah-o-nah-tubby, of the Chickasaw Nation, under the terms of the second treaty, and that he held under the said Indian.

On the trial the defendant offered in evidence a paper certified by one A. J. Edmondson, styling himself register of the land office of the United States at Pontotoc, Mississippi, to be 'a true copy of the roll, number, reserves, and locations under the sixth article' of the treaty between the United States and Chickasaw Indians, &c., 'and of the list of persons furnished by the Chickasaw agent to the register and receiver as Indians entitled to land under said article.' The paper ran thus:

Reservations under the sixth article of the Chickasaw treaty.

No. Reserve.S. T.  R. Date.

774    Tah-pin-tah-umby. 7 6  11  W June 17, 1839.

775    Chah-caw-mubby. 10 5  11  "   "   "   "

776    Bah-o-nah-tubby. 23 5  11  "   "   "   "

The certificate of Edmondson to this exhibit was dated March 2d, 1849, while the commission of Edmondson himself, which was produced and put in evidence by the other side, was dated on March 2d also, four years previously; and appointed him register of the land office at Pontotoc 'during the term of four years from the 2d day of March, 1845.'

The plaintiff objected to the paper offered in evidence, upon the ground that it did not purport to be a copy of the record of the land office; that the certificate was not authorized by any act of Congress; that it stated facts and legal conclusions; that it did not show that the list was made by the person named in the articles of the treaty, or that the agent certified to its believed accuracy; that it was not founded on any order of survey, donation, pre-emption, or purchase; that it did not purport to be a copy of the plat of the general office; that it could not be set up to defeat a patent; that the present action being one of ejectment the legal title alone was involved, and that such title could only pass by a patent; that a patent could not be impeached at law except for defects apparent on its face; that the treaties did not convey the title in fee to the Indian Bah-o-nah-tubby, for the section of land sued for, but that the title remained in the United States till it passed out by patent.

The court decided that the paper was incompetent, and verdict and judgment having been rendered for the plaintiff, the defendant brought the case here, assigning for error the exclusion of the paper.

Mr. T. J. D. Fuller, in support of the ruling below:

In addition to the reasons taken on the trial for the rejection of the paper-reasons here iterated and relied on-it may be urged:

1. That the contemplated reservees were unknown and uncertain persons till designated and fixed in a prescribed manner and on specific proofs. The certificate offered in evidence should have therefore shown, in addition to what it did show (if it showed anything), that a list including Bah-o-nah-tubby was furnished by the 'seven chiefs,' in accordance with the sixth article of the treaty to the agent, and that he certified to the receiver and register that he believed it accurate.

2. The paper offered was not authenticated in the manner prescribed by statute. It should have been certified by the Commissioner of the Land Office, under the seal of the Department of the Interior, accompanied with the survey, maps, and reservations marked thereon, as they must be if the record exists.

3. The paper was inadmissible, because the officer certifying, and at the time he certified, was not in office. The day of the date of his commission is to be included within the computation of the four years. His office, or term of office, expired on the night of March 1st, 1849. And such is understood to be the practice and holding of the government. It is in analogy to the rule of law for computing time under the statute of limitations.

4. The paper, if competent for any purpose, could be so for one purpose only, and that was to disprove seizin of the plaintiff. But the defendant offered no evidence to connect himself with the alleged outstanding title.

Mr. J. W. C. Watson, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Best v. Polk


text: Talk:Best v. Polk

title: Talk:Best v. Polk


text:
Best v. Polk/Opinion of the Court

In order to carry out in good faith Indian treaties, effect must be given to the intention of the parties to them; and from the different provisions of the treaties which are applicable to this case, no well-founded doubt can exist of the proper construction to give to the sixth article. The cession in the first treaty contemplated the ultimate abandonment of the lands by the Indians. This treaty did not prove satisfactory, and the Indians asked, and the United States conceded to them, a limited quantity of land for a permanent home. This object could not be obtained if it were meant to give only an equitable title to the Indians. Such a title would soon become complicated by the encroachments of the white race; and that the Indians supposed they were providing for a good title to their 'reservations' is manifest enough, because they declare, in the second treaty, that they wish to have the management of their affairs in their own hands.

This disposition, which was natural under the circumstances, the United States yielded to, and agreed, when the body of the lands were surveyed, to reserve from sale certain limited portions on which the reservations should be located. This was done in obedience to a just policy, for it would have been wrong, considering the dependent state of these Indians, to hold them to their original engagement. The United States could not afford to do this, and, therefore, willingly consented to re-cede to the Indians enough lands for their wants. Can it be doubted that it was the intention of both parties to the treaty to clothe the reservees with the full title? If it were not so there would have been some words of limitation indicating a contrary intention. Instead of this there is nothing to show that a further grant, or any additional evidence of title, were contemplated. Nor was this necessary, for the treaty proceeded on the theory that a grant is as valid by a treaty as by an act of Congress, and does not need a patent to perfect it. We conclude, therefore, that the treaty conferred the title to these reservations, which was complete when the locations were made to identify them. This was the view taken of this subject by the highest court of Mississippi soon after this treaty went into operation, in litigations which arose between the white race and the Indians themselves concerning the effect to be given to these reservations. In all these cases the Indian reservee was held to have preference over the subsequent patentee, on the ground that the United States had parted with the title by the treaty. These decisions, furnishing a rule of property on this subject in Mississippi, were not brought to this court for review, as they could have been, but have been acquiesced in for a quarter of a century. To disturb them now would unsettle titles bon a fide acquired.

It has been repeatedly held by this court that a patent is void which attempts to convey lands that have been 'previously granted, reserved from sale, or appropriated.' 'It would be a dangerous doctrine (say the court in New Orleans v. United States ) to consider the issuing of a grant as conclusive evidence of right in the power which issued it. On its face it is conclusive, and cannot be controverted; but if the thing granted was not in the grantor no right passes to the grantee. A grant has been frequently issued by the United States for land which had been previously granted, and the second grant has been held to be inoperative.'

If, therefore, the location of the land in controversy was properly made, the legal title to it was consummated, and the subsequent patent was unauthorized. And this brings us to the consideration of the question whether the evidence on the subject of the location ought to have been received by the court.

This evidence consists of the certificate of the register of the land office at Pontotoc that the reserve of a Chickasaw Indian (naming him) was located on the disputed section in June, 1839, under the provisions of the sixth article of the Chickasaw treaty, and a copy of the roll, number, reserve, and location is given, showing this to be the case. It is insisted that this certificate did not go far enough; that it ought to have shown that a list, including this Indian, was furnished by the seven chiefs to the agent, and that the agent certified to the register and receiver, prior to the location, that he believed the list to be accurate. If this were so no presumption could arise that local land officers, charged with the performance of a duty, had discharged it in conformity with law.

It would be a hard rule to hold that the reservees under this treaty, in case of contest, were required to prove not only that the locations were made by the proper officers, but that the conditions on which these officers were authorized to act had been observed by them. Such a rule would impose a burden upon the reservees not contemplated by the treaty, and, of necessity, leave their titles in an unsettled state. The treaty granted the land, but the location had to be fixed before the grant could become operative. After this was done, the estate became vested and the right to it perfect, as much so as if the grant had been directly executed to the reservee. It has been frequently held by this court that a grant raises a presumption that the incipient steps required to give it validity have been taken.

The grant, in this case, was complete when the location was made, and the location is, in itself, evidence that the directions of the treaty on the subject were observed, and it cannot be presumed that the officers empowered to make the location violated their duty. Even if the agent neglected to annex a proper certificate to the roll of Indians entitled to the reservations, it is difficult to see how the Indians could be prejudiced by this neglect. We conclude, therefore, that the certificate of the register was competent evidence, and if the locations were not as there stated, it is easy for the plaintiff below to show that fact. The same effect was given to a similar certificate of this same officer, by the High Court of Errors and Appeals of Mississippi, as early as 1848, in an action of ejectment brought by a Chickasaw Indian, for a tract of land claimed by him in virtue of a location made in his behalf as a reservee, against a party claiming by patent subsequent in date to the location of his reservation. And this decision was reaffirmed by the same court in 1854, in the case of another Indian suing for his land under similar circumstances. It must have been supposed at the time by the losing parties that these decisions were correct, or else the opinion of this court would have been asked on the point involved. After such a length of acquiescence, it would produce great mischief to hold this evidence to be incompetent.

It is objected that the paper offered in evidence should have been certified by the Commissioner of the General Land Office; but this want not necessary, for copies of records appertaining to the land office, certified by the register, are evidence in Mississippi, and similar statutes exist in nearly all the Western and Southwestern States.

Another objection is taken to the certificate of Edmondson, on the ground that when it was given his term of office had expired. This objection cannot be sustained, for the certificate bears date the 2d March, 1849, and he was commissioned to hold the office of register 'during the term of four years from the 2d day of March, 1845.' The word 'from' always excludes the day of date.

It is argued that in ejectment a stranger to the outstanding title cannot invoke it to defeat the action. Whether this be so or not depends on the laws of the State; but the point does not arise in this case, for there was no opportunity for the defendant to connect himself with the Indian title after the court refused to let the evidence on the subject of this title go to the jury.

The decision respecting this evidence necessarily disposed of the case.

VENIRE DE NOVO AWARDED.

title: Best v. Polk/Opinion of the Court


text: Talk:Best v. Polk/Opinion of the Court

title: Talk:Best v. Polk/Opinion of the Court


text: Triangles of Life, and other stories/Triangles of Life


text:
Coffin v. Ogden

APPEAL from the Circuit Court for the Southern District of New York, in which court Coffin filed a bill against Ogden et al. to enjoin them from making door locks of a certain kind, the exclusive right to make which he alleged belonged by the assignment of a patent right to him.

The case was one chiefly of fact, involving the question of priority of invention. The court below was of the opinion that the complainant, or rather the person under assignment of whose patent he claimed and was working, had been anticipated in his invention; and dismissed the bill. From that decree the defendants took this appeal.

Mr. George Gifford, for the appellant; Mr. B. F. Thurston, contra.

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

title: Coffin v. Ogden


text: Talk:Coffin v. Ogden

title: Talk:Coffin v. Ogden


text:
Coffin v. Ogden/Opinion of the Court

The appellant was the complainant in the court below, and filed this bill to enjoin the defendants from infringing the patent upon which the bill is founded. The patent is for a door lock with a latch reversible, so that the lock can be applied to doors opening either to the right or the left hand. It was granted originally on the 11th of June, 1861, to Charles R. Miller, assignee of William S. Kirkham, and reissued to Miller on the 27th of January, 1863. On the 10th of June, 1864, Miller assigned the entire patent to the complainant. No question is raised as to the complainant's title, nor as to the alleged infringement by the defendants. The answer alleges that the thing patented, or a material and substantial part thereof, had been, prior to the supposed invention thereof by Kirkham, known and used by divers persons in the United States, and that among them were Barthol Erbe, residing at Birmingham, near Pittsburg, and Andrew Patterson, Henry Masta, and Bernard Brossi, residing at Pittsburg, and that all these persons had such knowledge at Pittsburg. The appellees insist that Erbe was the prior inventor, and that this priority is fatal to the patent. This proposition, in its aspects of fact and of law, is the only one which we have found it necessary to consider.

Kirham made his invention in March, 1861. This is clearly shown by the testimony, and there is no controversy between the parties on the subject.

It is equally clear that Erbe made his invention not later than January 1st, 1861. This was not controverted by the counsel for the appellant; but it was insisted that the facts touching that invention were not such as to make it available to the appellees, as against the later invention of Kirkham and the patent founded upon it. This renders it necessary to examine carefully the testimony upon the subject.

Erbe's deposition was taken at Pittsburg upon interrogatories agreed upon by the parties and sent out from New York. He made the lock marked H. E. (It is the exhibit of the appellees, so marked). He made the first lock like it in the latter part of the year 1860. He made three such before he made the exhibit lock. The first he gave to Jones, Wallingford & Co. The second he sent to Washington, when he applied for a patent. The third he made for a friend of Jones. He thinks the lock he gave to Jones, Wallingford & Co. was applied to a door, but is not certain.

Brossi. In 1860 he was engaged in lockmaking for the Jones and Nimmick Manufacturing Company. He had known Erbe about seventeen years. In 1860 Erbe was foreman in the lock shop of Jones, Wallingford & Co., at Pittsburg. In that year, and before the 1st of January, 1861, he went to Erbe's house. Erbe there showed him a lock, and how it worked, so that it could be used right or left. He says: 'He (Erbe) showed me the follower made in two pieces. One piece you take out when you take the knob away. The other part-the main part of the follower-slides forward in the case of the lock with the latch, so you can take the square part of the latch and turn it around left or right, whichever way a person wants to.' He had then been a lockmaker eight years. He examined the lock carefully. He had never seen a reversible lock before. He has examined the exhibit lock. It is the same in construction. The only difference is, that the original lock was made of rough wrought iron. It was a complete lock, and capable of working. Erbe thought it a great thing. Erbe showed him the lock twice afterwards at Jones, Wallingford & Co's. He saw such a lock attached to the office door there and working, but don't know whether it was the first lock made or one made afterwards.

Masta. In 1860 he was a patternmaker for Jones, Wallingford & Co. Had known Erbe fourteen or fifteen years. Erbe showed him his improvement in reversible locks New Year's day, 1861. He examined the lock with the case open. 'You had to pull out the spindle, and the hub was fitted so that it would slide between the spindle and the plate and let the latch forward.'. . . 'The whole hub was made of three pieces. One part was solid to the spindle or hub shanks, and then the hub that slides between the plate and case, and a washer at the other side of the spindle.' 'There is not a particle of difference between the exhibit and the original lock. It is all the same.' He identifies the time by the facts that he commenced building a house in 1861, and that year is marked on the water conductor under the roof.

Patterson. Until recently he was a manufacturer of locks and other small hardware. In the year 1860 he was the superintendent of the lock factory of Jones, Wallingford & Co., and their successors in Pittsburg. He had known Erbe since 1856. About the 1st of January, 1861, Erbe showed him an improved reversible lock of his invention like the exhibit lock. The improvement 'consisted in constructing the hub or follower, so that when the spindle was withdrawn, the hub would slide forward between the cases so that the head of the latch would protrude beyond the face of the lock, so as to permit its reversal from right to left; the latch-head being connected with the yoke by a swivel joint, so that it might be reversed. . . . It was our uniform practice to put our new locks on the doors about the office to test them, and I believe that one was put on; but at this distance of time I cannot say positively that it was.'

There is no proof that Erbe made any locks according to his invention here in question but those mentioned in his testimony. He applied for a patent in 1864, and failed to get it. Why, is not disclosed in the record.

The appellants called no witnesses at Pittsburg or elsewhere to contradict or impeach those for the appellees. Brossi was subjected to a rigorous cross-examination, but, in our judgment, it in nowise diminishes the effect of his testimony in chief. The counsel for the appellants asked with emphasis, in the argument here, why the defendants had not called Jones, of the firm of Jones, Wallingford & Co.? The question was well retorted, why was he not called by the other side? He does not appear in a favorable light. He prevented Erbe, who was in his employ, from going to New York to testify in behalf of the defendants, and avowed a determination to prevent, if it were possible, their obtaining the testimony of Brossi, Masta, and Patterson. It is difficult not to regard him with a feeling akin to that which attends the presumptions in odium spoliatoris. We entertain no doubt that the testimony of all these witnesses is true in every particular, including the statement of Brossi as to putting the lock on the door. If that were false, doubtless Jones would have been called to gainsay it. His hostility to the defendants is a sufficient reason for their not calling him for any purpose.

The case arose while the Patent Act of 1836 was in force, and must be decided under its provisions. The sixth section of that act requires that to entitle the applicant to a patent, his invention or discovery must be one 'not known or used by others before his invention or discovery thereof.' The fifteenth section allowed a party sued for infringement to prove, among other defences, that the patentee 'was not the original and first inventor of the thing patented, or of a substantial and material part thereof claimed to be new.'

The whole act is to be taken together and construed in the light of the context. The meaning of these sections must be sought in the import of their language, and in the object and policy of the legislature in enacting them. The invention or discovery relied upon as a defence, must have been complete, and capable of producing the result sought to be accomplished; and this must be shown by the defendant. The burden of proof rests upon him, and every reasonable doubt should be resolved against him. If the thing were embryotic or inchoate; if it rested in speculation or experiment; if the process pursued for its development had failed to reach the point of consummation, it cannot avail to defeat a patent founded upon a discovery or invention which was completed, while in the other case there was only progress, however near that progress may have approximated to the end in view. The law requires not conjecture, but certainty. If the question relate to a machine, the conception must have been clothed in substantial forms which demonstrate at once its practical efficacy and utility. The prior knowledge and use by a single person is sufficient. The number is immaterial. Until his work is done, the inventor has given nothing to the public. In Gayler v. Wilder the views of this court upon the subject were thus expressed: 'We do not understand the Circuit Court to have said that the omission of Conner to try his safe by the proper tests would deprive it of its priority; nor his omission to bring in into public use. He might have omitted both, and also abandoned its use and been ignorant of the extent of its value; yet if it was the same with Fitzgerald's, the latter would not, upon such grounds, be entitled to a patent; provided Conner's safe and its mode of construction were still in the memory of Conner before they were recalled by Fitzgerald's patent.' Whether the proposition expressed by the proviso in the last sentence is a sound one, it is not necessary in this case to consider.

Here it is abundantly proved that the lock originally made by Erbe 'was complete and capable of working.' The priority of Erbe's invention is clearly shown. It was known at the time to at least five persons, including Jones, and probably to many others in the shop where Erbe worked; and the lock was put in use, being applied to a door, as proved by Brossi. It was thus tested and shown to be successful. These facts bring the case made by the appellees within the severest legal tests which can be applied to them. The defence relied upon is fully made out.

DECREE AFFIRMED.

title: Coffin v. Ogden/Opinion of the Court


text: Talk:Coffin v. Ogden/Opinion of the Court


text:
United States v. Buzzo

ON certificate of division of opinion between the judges of the Circuit Court for the Eastern District of Michigan; the case being thus:

An Internal Revenue Act of 1866 enacts

'That any person who shall make. . . or issue any instrument, document, or paper, of any kind or description whatsoever,. . . for the payment of money, without the same being duly stamped,. . . with intent to evade the provisions of this act, shall for every such offence forfeit the sum of $50,' &c.

Under this act an information was filed against one Buzzo, charging him, as clerk of the Calumet Mining Company, with making and issuing a certain written and printed evidence of money to be paid without the same being duly stamped, and with intent to evade the provisions of the act. The form of the paper was as follows, to wit:

The defendant pleaded Not Guilty, and the jury found a special verdict, setting forth the circumstances under which he issued the draft in question, and others of the same character, which he did on behalf of the Calument Mining Company (a corporate body), at its mines in Michigan, in payment for labor and other things; the defendant being superintendent of the mines, and Seabury, the drawee of the draft, being the treasurer of the company at Boston, where the drafts were redeemed. The special verdict stated that the drafts were issued without being stamped, but it did not state that this was done with intent to evade the provisions of the act.

Upon the special verdict as thus found, the district attorney of the United States moved for judgment, and thereupon the question arose, whether, upon the facts stated in the verdict (and under certain provisions of the Internal Revenue Act, not necessary, in view of the point adjudged in the case by this court, here to be stated), the instrument set forth in the information was subject to a stamp when issued. Which question, the judges being divided in opinion upon it, was certified to this court for decision.

Messrs. B. R. Curtis and J. Hubley Ashton, for the defendant:

The act of Congress expressly makes the intent to evade the provisions of the act a necessary ingredient of the offence defined by it. It is clear that it was necessary that the information should contain an allegation, as it does, that the omission of the stamp was with intent to evade the act, and that the jury could not have found the defendant guilty of the offence without finding an intentional omission of the stamp with the purpose of evading the act.

The special verdict, however, is entirely silent in regard to the matter of the intent of the defendant.

It does not find that, if the instrument was liable to stamp duty, it was issued without a stamp with intent to evade the act; and, therefore, however this court might answer the question certified for its decision, the Circuit Court could not enter judgment for the United States upon the verdict.

Therefore, this court will not decide the question upon which the judges of that court have divided in opinion, and will remand the cause to that court either with directions to award a new trial, or without any direction.

Mr. G. H. Williams, Attorney-General, and Mr. S. F. Phillips, Solicitor-General, contra:

What is said by opposing counsel is not sufficient to prevent a response by this court to the question about which the judges below differed.

The facts (supposing the instrument to be liable to a stamp) show that the defendant has actually evaded the provisions of the act. In a similar case this court has said:

'When the acts which create the obstruction [evasion] are in themselves unlawful, the intention to obstruct [evade] will be imputed to their author, although the attainment of other ends may have been his primary object.'

This is in accordance with long-established principles.

To the same effect with United States v. Kirby is a passage in Tidd's Practice:

'And if a special verdict on a mixed question of fact and law find facts from which this court can draw clear conclusions, it is no objection to the verdict that the jury have not themselves drawn such conclusions, and stated them as facts in the case.'

Whatever may be the true doctrine in a case where the special verdict finds only such evidence as, in the judgment of a court, makes it competent for a jury to decide either positively or negatively as to a fact in question, it seems that if the evidence so found be such as should form the basis of an instruction by the court that from it the jury must find in a particular way, it is immaterial whether the jury find the specific fact, or only the proofs of it. That is the case here.

Mr. Justice BRADLEY delivered the opinion of the court.

title: United States v. Buzzo


text: Talk:United States v. Buzzo

title: Talk:United States v. Buzzo


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

As in this case the intent is the essence of the crime, and is not found, no judgment can be entered on the verdict, whether the facts disclosed therein required a stamp to be affixed to the draft or not. To decide the question proposed, therefore, would avail nothing. An imperfect verdict, or one on which no judgment can be rendered, must be set aside, and a venire de novo awarded. The case must therefore be dismissed.

It is proper to observe that in the case of United States v. Isham, recently decided by this court, we held that no stamp is required on drafts of the kind above described, when not exceeding ten dollars in amount.

CASE DISMISSED.


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


text:
Bartemeyer v. Iowa (85 U.S. 129)

ERROR to the Supreme Court of Iowa; the case being thus:

Bartemeyer, the plaintiff in error, was tried before a justice of the peace on the charge of selling intoxicating liquors, on the 8th of March, 1870, to one Timothy Hickey, in Davenport Township, in the State of Iowa, and was acquitted. On an appeal to the Circuit Court of the State the defendant filed the following plea:

'And now comes the defendant, F. Bartemeyer, and for plea to the information in this cause says: He admits that at the time and place mentioned in said information he did sell and deliver to one Timothy Hickey one glass of intoxicating liquor called whisky, and did then and there receive pay in lawful money from said Hickey for the same. But defendant alleges that he committed no crime known to the law by the selling of the intoxicating liquor hereinbefore described to said Hickey, for the reason that he, the defendant, was the lawful owner, holder, and possessor, in the State of Iowa, of said property, to wit, said one glass of intoxicating liquor, sold as aforesaid to said Hickey, prior to the day on which the law was passed under which these proceedings are instituted and prosecuted, known as the act for the suppression of intemperance, and being chapter sixty-four of the revision of 1860; and that, prior to the passage of said act for the suppression of intemperance, he was a citizen of the United States and of the State of Iowa.'

Without any evidence whatever the case was submitted to the court on this written plea, the parties waiving a jury, and a judgment was rendered that the defendant was guilty as charged, and he was sentenced to pay a fine of $20 and costs. A bill of exceptions was taken, and the case carried to the Supreme Court of Iowa, and that court affirmed the judgment of the Circuit Court and rendered a judgment for costs against the defendant, who now brought the case here on error.

There was sufficient evidence that the main ground relied on to reverse the judgment in the Supreme Court of Iowa was, that the act of the Iowa legislature on which the prosecution was based, was in violation of the Constitution of the United States.

The opinion of that court was in the record, and, so far as the general idea was involved, that acts for suppressing the use of intoxicating drinks are opposed to that instrument, the court contended themselves with a reference to the previous decisions of that court, namely: Our House, No. 2, v. The State, Zumhof v. The State, Santo v. The State; cases in which the negative of the idea is maintained. But, referring to the allegation in the plea that the defendant was the owner of the liquor sold before the passage of the act under which he was prosecuted, they said that the transcript failed to show that the admissions and averments of the plea were all the evidence in the case, and that other testimony may have shown that he did not so own and possess the liquor. [This, however, rather seemed, as the Reporter understood it, to be a mistake; at least the record, if he read it correctly, stated, as he has already said, that the plea was all the evidence given and received on the trial.]

The case was submitted on printed arguments some time ago, and when the Slaughter-House Cases, reported in 16th Wallace, 36, were argued; the position of the plaintiff in error in this case being, as it partly was in those, that the act of the State legislature, the maintenance of which by the courts below was the ground of the writ of error, was in violation of the fourteenth amendment to the Constitution, which runs thus:

'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State where they reside.

'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' The judgment was announced at the present term.

Mr. W. T. Dittoe, for the plaintiff in error; Mr. H. O'Connor, Attorney-General of Iowa, for the State, contra.

Mr. Justice MILLER, after stating the case, delivered the opinion of the court, as follows:

title: Bartemeyer v. Iowa (85 U.S. 129)


text: Talk:Bartemeyer v. Iowa (85 U.S. 129)

title: Talk:Bartemeyer v. Iowa (85 U.S. 129)