text:
Hovey v. McDonald/Opinion of the Court

An award against the United States of nearly $200,000 having been made to one A. R. McDonald, a British subject, by the mixed commission appointed under the treaty of 1871, his bankrupt assignee, Thomas J. Phelps, filed a bill in the supreme court of the District of Columbia to restrain him from collecting the money, and to have it made subject to his debts, making one White also a defendant, who claimed to have purchased the claim. A restraining order, and subsequently a preliminary injunction, was granted according to the prayer of the bill, and George W. Riggs was appointed a receiver to collect and hold the money until the further order of the court. In the mean time a bill was filed by Charles E. Hovey and William Dole (the present appellants) against McDonald and White, setting up a lien upon one-fourth of the fund under an alleged agreement by which they were to receive that proportion as compensation for their services in aiding the prosecution of the claim, and praying that the lien might be established, and that the defendants might be enjoined from collecting or receiving more than three-fourths of the award. A preliminary injunction was also granted in accordance with the prayer of this bill. On the sixteenth of February, 1875, the following consent decree, or order, was made, to-wit:

'In the Supreme Court of the District of Columbia.

'THOMAS J. PHELPS, Assignee, v. AUGUSTINE R. MCDONALD and     WILLIAM WHITE. (In Equity. No. 3,910.)

'This cause came on to be further heard on this sixteenth day     of February, A. D. 1875; and thereupon, and upon      consideration thereof, and with the consent of the parties to      this suit, and of Charles E. Hovey and William P. Dole,      parties complainant in a certain cause in equity in this      court, numbered 3,937, against the same defendants, and      claiming one-fourth of the award in the proceedings      mentioned:

'It is, this sixteenth day of February, A. D. 1875, ordered,     adjudged, and decreed— '(1) That the restraining orders heretofore made in both   said causes are hereby vacated.

'(2) That the decree made in this cause on the twenty-eighth     day of December, A. D. 1874, appointing George W. Riggs,      Esq., receiver, and granting a provisional injunction, is      modified as follows, viz.: That the defendant William White      may receive from the agents of the British government the      one-half of the net amount of the award in the proceedings      mentioned, free and discharged of all claims of the      plaintiffs in both the causes above mentioned, to enable the      said defendant to pay the expenses incurred by the defendant      A. R. McDonald in the prosecution of this claim; which sum of      one-half of said award the court finds to be the reasonable      expense incident to the prosecution of the said claim by said      defendant A. R. McDonald before said mixed commission,      exclusive of said claim of Hovey & Dole.

'(3) That the remaining half of the net amount of said award     shall be paid to the said George W. Riggs; and it is ordered,      adjudged, and decreed that the defendants shall execute all      such orders, receipts, and acquittances necessary to enable      the said George W. Riggs to collect the same. And the said     George W. Riggs shall hold the said half of the said award      subject to the claims, liens, and rights of the said Charles      E. Hovey and William P. Dole and of the plaintiff in this      cause, to be determined by the further decree of this court      in this cause, and in the cause of said Hovey & Dole,      hereinbefore mentioned. It is further ordered that said     receiver be directed to invest the money so placed in his      hands in bonds of the United States, or in 3 65-100 bonds of      the District of Columbia, guarantied by the United States, as      he may deem best for the interest of the parties concerned,      and that a copy of this decree be filed in this      last-mentioned cause.'

This decree was carried out; the money was collected from the agent of the British government, one-half of it being received by Mr. Riggs as receiver, and the suits progressed in due course. Both bills were demurred to, and both demurrers were sustained, and the bills dismissed by the court in special term.

In the case of Hovey and Dole a decree was entered on Thursday, the twenty-fourth of June, 1875, simply decreeing that the demurrer to the bill be sustained, and that the bill be dismissed, with costs. An appeal to the general term was entered the same day on the minutes of the court.

On Monday, the twenty-eighth of June, 1875, the decree was amended by adding thereto the clause 'that the receiver appointed in this cause, and in Phelps, Assignee, v. McDonald and White, No. 3,910, be directed to pay the funds belonging to said cause to the said defendants, McDonald and White, or order, and thereon said receiver shall be discharged;' and at the same time a decree was entered in the suit of Phelps, assignee, that the demurrer be sustained, and the bill dismissed with costs, and the same direction was given to the receiver to deliver the funds to McDonald and White. An appeal was entered in this case also on the day the decree was rendered; but no appeal bond or undertaking was filed in either case until the twelfth of July.

Soon after the entry of the last decree, and on the same day, a copy of it was served on the receiver by the attorney of McDonald and White, and the fund in his hands, then consisting of district bonds, was demanded of him; but, before he delivered the bonds, the attorney of Hovey and Dole appeared and gave him verbal notice that an appeal had been taken, and insisted that it was a supersedeas of the decree. Thereupon the receiver and the attorneys repaired to the court, and the receiver asked the judge what he should do, and was simply told to obey the decree,-the complainants' attorney at the same time offering to furnish the security named by the court on the appeal. The receiver then delivered the bonds to the defendants.

In the case of Phelps, the bankrupt assignee, the decree of the special term was afterwards affirmed; but in that of Hovey and Dole the decree of the special term was reversed, and the counsel for the complainants obtained an order on the defendants to pay back into court the money, or funds, which they had obtained from the receiver. Failing to do this, they were adjudged in contempt, and a decree pro confesso was entered against them. Thereupon the complainants obtained an order on the receiver to file his account; and this being done, and if appearing thereby that, in obedience to the decree of the special term, he had delivered the fund to the defendants, the account was referred to an auditor, and the complainants filed exceptions thereto on the ground that he had delivered up the funds without due authority. The auditor took testimony as to the circumstances of the appeal, the notice given to the receiver, and his conduct in the matter, and reported that in his opinion the receiver had only done his duty. This report was confirmed by a decree of the general term, and from that decree the present appeal was taken.

The first matter to be determined is the motion on the part of the receiver to dismiss the appeal for the reason that he was not a party to the suit. This motion cannot prevail. The proceedings instituted by the order requiring the receiver to file his account, and the subsequent reference of that account to an auditor, and the exceptions thereto, were all directed against the receiver for the purpose of rendering him personally responsible for the fund which had been placed in his hands, and which he had delivered over in obedience to the original decree. It was a side issue in the cause, in which the complainants on the one side, and the receiver on the other, were real and interested parties. The decree confirming the auditor's report was, as to this matter, a final decree against the complainants and in favor of the receiver. We have so often considered cases of this sort, arising incidentally in a cause, but presenting independent issues to be determined between the parties to them, that it is unnecessary to enter into a detailed discussion of the subject at this time. The receiver, though not a party in the principal suit, was an officer of the court appointed in the suit, and was a principal party to the particular question raised by the proceedings referred to. It is only necessary to refer to some of the cases that apply to the subject. It will be found fully discussed in Blossom v. Railroad Co. 1 Wall. 655; Butterfield v. Usher, 91 U.S. 248; Trustees v. Greenough, 105 U.S. 531; and Hinckley v. Gilman R. Co. 94 U.S. 467. In the case last cited a decree was rendered against a receiver, directing him to pay into court a certain sum of money, being the balance found due from him on the settlement of his accounts. He appealed from this decree, and his right to appeal was sustained by this court. This case is a direct authority to show that the receiver in the present case, had the decree been against him, could have taken an appeal; and, if he would have had a right to appeal, surely the opposite parties have the same right.

We are brought, then, to consider the effect of the appeal taken from the decree of the special term upon the efficacy of said decree as a justification of the receiver in handing over to the defendants the fund in his possession. To arrive at a satisfactory conclusion, it will be necessary, in the first place, to take notice of the question as to the power of the court in special term to amend its decree after the appeal was entered.

By the laws relating to the District of Columbia, the supreme court of the district has general terms and special terms, the latter being held by a single judge and proceeding in the conduct of causes as if it were a separate court. Rev. St. D. C. § 753. The special term renders final judgments and decrees; and any party aggrieved by an order, judgment, or decree of the special term, if the merits are involved, may appeal to the general term. Section 772. The court in general term is authorized to adopt rules to regulate the time and manner of making appeals, and to prescribe the terms and conditions upon which they may be made. Section 770. Such rules have been adopted. One is, that executions may issue after judgment in special term, unless the party condemned move the vacate it or set it aside for fraud, deceit, surprise, or irregularity, or resort to a review of it before the general term. Rule 89. Another is, that appeals must be brought within 30 days after the judgment or decree is made or pronounced; and that they shall not stay execution (as between private parties) where the judgment is for a specific sum, unless, within 20 days after judgment or decree, an undertaking be given, with security, to abide by, perform, and pay the judgment or decree. Rule 91.

We do not perceive that there is anything peculiar in these appeals from the special to the general term to take them out of the operation of the general principles and rules which govern appeals from one court to another. One general rule in all cases (subject, however, to some qualifications) is that an appeal suspends the power of the court below to proceed further in the cause. This includes a suspension of the power to execute the judgment or decree. But, of course, besides merely taking an appeal, those additional things must be done which the law requires to be done in order to give to the appeal a suspensive effect, whether it be security for the payment of the claim or other condition imposed by law.

One of the qualifications of the general rule as to the suspensive effect of an appeal is that the inferior court may perfect its judgment or decree, usually, at any time during the term at which it is rendered. If, when an appeal is taken or a writ of error is sued out, the record has not been made up, it may be made up in due form. If any obvious mistake has occurred it may be corrected; as, where the jury by mistake has given damages in a penal action, or has given damages for a larger sum than the declaration demanded, the plaintiff may enter a remittitur of the damages on the record after a writ of error is brought. Tidd, Pr. 942. And it is laid down as a general rule, at law, (the principle of which is equally applicable to chancery proceedings,) that those things which are amendable before error brought are amendable afterwards, so long as diminution may be alleged and certiorari awarded; provided, of course, that the time for amendment has not passed by. Tidd, 714. In chancery proceedings it is a rule that when a clerical error has crept into the decree, or some ordinary direction has been omitted, the court will entertain an application to rectify it, even though it has been passed and entered. Where a decree has omitted a direction that is of course at the time it is made, it may be corrected by the insertion of that direction; as where, in a creditor's suit, the decree has omitted the usual direction to take an account of the personal estate, it was ordered to be inserted. Daniell, Ch. Pr. c. 25, § 5. This rule is formulated in the eighth equity rule established by this court for the government of the circuit courts, which declares that 'clerical mistakes in decrees, or decretal orders, or errors arising from any accidental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court or judge thereof, upon petition, without the form or expense of a rehearing.' Such corrections, by analogy to the practice in cases at law, may, undoubtedly, be made after an appeal is taken.

In the present case, the correction of the form of the decree by adding the direction to the receiver to pay over the money in his hands to the defendants was a thing of course; it was merely expressing the legal effect and conseqence of the decree. It was an amendment which the court below, (the special term,) was competent to make notwithstanding the appeal. The terms of the injunction were that the defendants should be restrained from receiving the money until the final hearing of the cause. Of course, when the cause was finally heard, and the bill dismissed, the injunction ceased to have effect by its own terms. The appointment of Mr. Riggs as receiver was for the purpose of holding the money as agent of the court, and withholding it from the defendants until the decision. The words of his commission were, 'to collect and hold the money until and subject to the further order of the court.' It was therefore a necessary consequence of the decree of dismissal, that the injunction should be dissolved, and that the receiver should be discharged and directed no longer to withhold the money from the possession of the defendants. The dissolution of the injunction and the discharge of the receiver were directions of course to be inserted in the decree of dismissal, unless the court should affirmatively order otherwise. The court below, it is true, in view of the appeal, might have made an order to continue the injunction and to retain the property in the receiver's hands; but that was a matter of discretion, to be exercised according to the justice of the case. If the judge did not see fit to exercise it, it was of course to add to the decree of dismissal its legal effect and consequence. The making of the correction without notice to the complainants, if such notice was requisite, was an irregularity of which the receiver was not bound to know. We are of opinion, therefore, that the completion of the decree on the twenty-eighth of June, by adding the usual direction, was within the power of the special term; and the rights of the parties to this appeal must be determined as if the decree had originally contained that direction.

This brings us to the question of the effect of the appeal as a supersedeas, or as a suspension of the decree thus corrected. The appeal was taken in time, and verbal notice that it had been taken and would be followed up by the proper undertaking was given to the receiver at once, before he had parted with the funds in his hands. At the same time he was served with a copy of the decree ordering him to deliver those funds to the defendants. The question is whether, under these circumstances, he paid the money in his own wrong, notwithstanding the order of the court.

A supersedeas, properly so called, is a suspension of the power of the court below to issue an execution on the judgment or decree appealed from; or, if a writ of execution has issued, it is a prohibition emanating from the court of appeal against the execution of the writ. It operates from the time of the completion of those acts which are requisite to call it into existence. If, before those acts are performed, an execution has been lawfully issued, a writ of supersedeas, directed to the officer holding it, will be necessary; but if the writ of execution has been, not only lawfully issued, but actually executed, there is no remedy until the appellate proceedings are ended, when, if the judgment or decree be reversed, a writ of restitution will be awarded. To remedy the inconveniencies that arose from an immediate issue of execution before the appellate proceedings could be perfected, the original judiciary act of 1789 provided, and the present Revised Statutes now provide, that no execution shall issue upon judgments in the courts of the United States, where a writ of error may be a supersedeas, until the expiration of 10 days after the judgment. Rev. St. § 1007. This regulation applies to proceedings in equity as well as to cases at law. But it does not extend to the present case. The regulation of appeals from the special to the general term of the supreme court of the district is specially provided for in the laws and rules before referred to, which cover the whole subject. By these rules it is declared that after judgment is entered in the circuit court, or at a special term, execution may be issued, unless the party condemned move to vacate or set it aside, or resort to a review of it before the general term; but no appeal shall operate as a stay of execution where the judgment is for a specific sum of money, unless the appellant, with surety, within 20 days after the judgment or decree, execute and file an undertaking in the form prescribed. The appellants insist that this rule makes it unlawful to issue an execution within the 20 days. We doubt very much whether that is the true meaning of the rule. It would be more in accordance with the general mode of construing such regulations to hold that the supersedeas does not take effect until the condition is complied with, and will not take effect at all unless complied with during the time limited.

But this case is not within the terms of the rule. There was no decree for a specific sum of money; there was no decree at all in favor of the complainants; and no execution was applicable to or could be issued in the case, except an execution for the costs of the defendants. The truth is that the case is not governed by the ordinary rules that relate to a supersedeas of execution, but by those principles and rules which relate to chancery proceedings exclusively. It depends upon the effect which, according to the principles and usages of a court of equity, an appeal has upon the proceedings and decree of the court appealed from, and the doctrines which apply to a supersedeas can only be brought in by way of analogy.

In England until the year 1772 an appeal from a decree or order in chancery suspended all proceedings; but since that time a contrary rule has prevailed there. The subject was reviewed by the house of lords in 1807, and an order was made establishing the right of the chancellor to determine whether and how far an appeal should be suspensive of proceedings, subject to the order of the house on the same subject. See Palmer, Pr. H. L. 9, 10; 15 Ves. 184; 3 Paige, 383-385.

In this country the matter is usually regulated by statute, or rules of court, and generally speaking an appeal, upon giving the security required by law, (when security is required,) suspends further proceedings, and operates as a supersedeas of execution. This, as we have seen, is the case in the circuit courts of the United States. But the decree itself, without further proceedings, may have an intrinsic effect which can only be suspended by an affirmative order either of the court which makes the decree, or of the appellate tribunal.

This court, in the Slaughter-house Cases, 10 Wall. 273, decided that an appeal from a decree granting, refusing, or dissolving an injunction does not disturb its operative effect. Mr. Justice CLIFFORD, delivering the opinion of the court, said 'it is quite certain that neither an injunction nor a decree dissolving an injunction passed in a circuit court is reversed or nullified by an appeal or writ of error before the cause is heard in this court,' and held that the same rule applies to writs of error from state courts in equity proceedings; and the decision of the court was based upon that view of the law. It was decided that neither a decree for an injunction nor a decree dissolving an injunction was suspended in its effect by the writ of error, though all the requisites for a supersedeas were complied with. It was not decided that the court below had no power, if the purposes of justice required it, to order a continuance of the status quo until a decision should be made by the appellate court, or until that court should order the contrary. This power undoubtedly exists, and should always be exercised when any irremediable injury may result from the effect of the decree as rendered; but it is a discretionary power, and its exercise or non-exercise is not an appealable matter. In recognition of this power, and for the purpose of facilitating its proper exercise in certain cases, on appeals from the circuit courts, this court by an additional rule of practice in equity, adopted in October term, 1878, declared that—

'When an appeal from a final decree, in an equity suit,     granting or dissolving an injunction, is allowed by a justice      or judge who took part in the decision of the cause, he may,      in his discretion, at the time of such allowance, make an      order suspending or modifying the injunction, during the      pendency of the appeal, upon such terms as to bond or      otherwise as he may consider proper for the security of the      rights of the opposite party.' Rule 93.

Of course, where the power is not exercised by the court, nor by the judge who allows the appeal, the decree retains its intrinsic force and effect.

Applying these principles to the present case, it is clear that the force of the decree was not affected by the appeal, although it was in the power of the special term to have continued the injunction and to have retained the fund in its control in the hands of the receiver had it seen fit to do so. Judging only from what appears in the record, we cannot refrain from saying that, in this case, the latter course would have been eminently proper. It would have protected all parties and produced injury to none. But if the court failed to do what it might properly have done, such failure ought not to be visited upon the receiver, who was the mere instrument and hand of the court, and subject to its order. It was his duty to obey the decree as made.

This disposes of the case, and requires that the decree appealed from should be affirmed; and it is so ordered.

title: Hovey v. McDonald/Opinion of the Court


text: Talk:Hovey v. McDonald/Opinion of the Court

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


text:
Louis v. Trustees of Brown Township

''Geo. Hoadly, E. M. Johnson, and Edward Colston'', for plaintiff in error.

C. H. Scribner, for defendant in error.

MILLER, J.

title: Louis v. Trustees of Brown Township


text: Talk:Louis v. Trustees of Brown Township


text:
Louis v. Trustees of Brown Township/Opinion of the Court

This is an action on bonds and interest coupons thereto attached, signed by the trustees of Brown township, payable to the Springfield, Mt. Vernon & Pittsburgh Railroad Company, or its assigns, on the first day of October, 1871, and dated April 20, 1853. The plaintiff says she is the owner and holder of the bonds and coupons, and in explanation of her title alleges that 'after execution and delivery of said note to said railway company as aforesaid, and in the year 1854, the said railroad company did indorse and deliver said note and the coupons thereto attached to Brown, Collins & Brown, and that said Browns, Collins & Brown afterwards indorsed and delivered said note and coupons to Richard B. Hopple, and Richard B. Hopple afterwards indorsed and delivered said note and coupons to the plaintiff, who now holds and owns the same.' The defendants for answer, among other matters, filed two pleas of a former adjudication, in which the bonds were declared to be void, and rely upon these in bar of the action.

The first of these pleas, called defense No. 3, sets out a suit by one Hiram Hipple, plaintiff, against the trustees of Brown township, Robert B. Hopple, and others, in which he alleges himself to be the owner of real estate incumbered by a mortgage to secure the payment of the bonds on which the present suit is brought, and that said defendants, among whom was the Richard B. Hopple from whom plaintiff in this suit purchased the bonds aforesaid, asserted a claim to his land on account of said mortgage. The plea further alleges that the holders of the bonds, among whom was Richard B. Hopple, filed their answer and cross-bill alleging the bonds and mortgage to be valid, and pray that the bonds and mortgage might be declared to be valid, and for a decree of foreclosure of the mortgage, and that in said cross-bill said Richard B. Hopple set up as the foundation of his prayer for relief, his ownership of the identical bonds now set forth in this action. In the suit on the mortgage, which was finally appealed to the supreme court of the state, Hopple and the other bondholders failed, and were adjudged to pay costs on the ground of the want of authority in the trustees of Brown township to issue the bonds. To this suit the trustees of Brown township and Richard B. Hopple and other bondholders were parties. The second plea sets forth an application by Richard B. Hopple, in his right as owner of these bonds, for a writ of mandamus from the supreme court of Ohio to compel the trustees of Brown township to levy a tax to pay the interest on said coupons. To the alternative writ the trustees answered, denying the validity of the bonds, and the court decided that the supposed bonds and coupons were issued without any legal authority, and without any authority to take stock in the railroad company to which they were delivered, and gave judgment for costs against said Hopple. The plea also avers that said bonds were not transferred to Annie Louis, plaintiff, until long after said bonds and coupons were due. To these pleas demurrers were filed, and the demurrers overruled, and plaintiff not desiring to reply or plead further, judgment was rendered for defendant. The error assigned by plaintiff is the overruling of these demurrers.

We think the court was right, upon the plainest principles of jurisprudence. The case is unembarrassed by the doctrine of bona fide purchaser of negotiable securities, because the bonds were overdue in the hands of Richard B. Hopple when the suit of Hipple against him and others to have them declared void was commenced; the bonds falling due October 1, 1871, and the suit commenced October 18th of that year, and the cross-bill, in which Hopple sought to enforce the bonds, was commenced April 2, 1872. The bonds were therefore past due, during the whole period of that litigation in which they were adjudged to be void in his hands.

As regards the action of mandamus, while the bonds were not overdue at the time of the judgment against Mr. Hopple, the plea expressly avers that they were overdue when plaintiff Louis became their owner, and as she alleges in her declaration that she bought them of Hopple, it follows that they remained in his hands from the date of the judgment on mandamus against him until they became past due. This follows, also, from the fact that he asserted ownership of them after they were due in the cross-bill to Hipple's suit. The plaintiff, therefore, holding under Hopple by a purchase made after the bonds were due, and after the judgment in which they were decided to be void in his hands, is bound by that judgment, unless something can be shown which takes the case out of the general rule. In the mandamus case the plaintiff was the owner of the bonds, and the present plaintiff is bound by the privity of a subsequent holder of them. The defendants in that case are the defendants in this, so that the action is now between parties on whom that judgment is binding.

The only objection made to this is that while the statute of Ohio makes a judgment on mandamus a bar to another civil action where the writ is granted, it does not so declare where it is refused. The words of the statute are not presented to us, nor any decision of the courts of that state cited to sustain the proposition. It is easy to see why the statute should declare that where a party has had a recovery of what he claims by a writ of mandamus, the other party should not also be harassed by another action for the same demand. But it would not follow that where a mandamus was refused on grounds which were conclusive against the right of plaintiff to recover in any action whatever, that the judgment would not be a protection when such other action was brought. Such was the case before us. The ground of the court's judgment in denying the mandamus was not left to inference, however strong that inference might be from the pleadings, as in the case of Block v. Com'rs, 99 U.S. 686, but the court declared, in the case we are now considering, in positive terms, that 'the said supposed bonds or undertaking and coupons, in the writ mentioned, were issued by the defendants without any legal power or authority, * *  * and without any legal power or authority to make said supposed subscription to the capital stock of the railroad company, and that said supposed subscriptions, and said supposed bonds and coupons, are for said reason absolutely void,' and that defendants are not estopped to set up the invalidity of said instruments. Here is not only a denial of the writ of mandamus, but an adjudication that in the hands of Hopple the bonds now in suit were absolutely void.

This court has repeately held, since Postmaster General Kendall's Case, 12 Pet. 614, that the proceeding in mandamus is, when appropriate, an action at law to recover money, and is subject to the principles which govern said actions; and in the case of Block v. Com'rs, 99 U.S. 686, the denial of the writ is held to be conclusive in a subsequent action as to the invalidity of the bonds, though the fact that the decision in mandamus was based on that ground is inferred from the pleadings, and not from the express language of the judgment, as in the present case.

We are of opinion that the judgment of the supreme court of Ohio established the fact that the bonds and coupons were void in the hands of Hopple, and the judgment is conclusive of that fact against his vendee and privy in this action. The same result must follow in the case of Hipple v. Board of Trustees and Richard B. Hopple and others. It is argued, in avoidance of this conclusion, that the board of trustees and Hopple being both defendants to Hipple's bill, no adversary contention on the question of the validity of the bonds could have taken place between them. But this view of the case ignores entirely the facts that Hopple, in filing his cross-bill seeking to establish the bonds as valid, became plaintiff, and made the trustees defendants, and in this manner raised the issue of their validity between himself and the trustees directly, and it was in express terms decided against him. His assignee of those bonds, in the present action against the same trustees, is clearly bound by that decision. But if there had been no cross-bill, the fact that both Hopple and the trustees were placed as defendants in the suit of Hopple, does not impair the conclusive character of the decree in that case as between those parties. The present case is precisely analogous to that of Corcoran v. Chesapeake & Ohio Canal Co. 94 U.S. 741, and we cannot better express our views of this case than by a quotation from the opinion in that:

'It is said that Corcoran and his co-trustees, the canal     company and the state of Maryland, were all defendants to      that suit, and that as between them no issue was raised by      the pleadings on this question, and no adversary proceedings      were had. The answer is that in chancery suits, where parties     are often made defendants because they will not join as      plaintiffs, who are yet necessary parties, it has long been      settled that adverse interests as between co-defendants may      be passed upon and decided, and if the parties have had a      hearing and an opportunity of asserting their rights, they      are concluded by the decree as far as it affects rights      presented to the court and passed upon by its decree. It is     to be observed, also, that the very object of that suit was      to determine the order of the distribution of the net      revenues of the canal company, and that the Corcoran trustees were made defendants for no other      purpose than that they might be bound by that decree; and,      lastly, as the decree did undoubtedly dispose of that      question, its conclusiveness cannot now be assailed      collaterally, on a question of pleading, when it is clear      that the issue was fairly made and was argued by Corcoran's      counsel, as is shown by the third head of their brief, made a      part of this record by stipulation.'

'It seems to us very clear that the question we are now     called on to decide has been already decided by a court of      competent jurisdiction, which had before it the parties to      the present suit; that it was decided on an issue properly      raised, to which issue both complainant and defendant here      were parties, and in which the appellant here was actually      heard by his own counsel; and that it therefore falls within      the salutary rule of law which makes such a decision final      and conclusive between the parties, and that none of the      exceptions to that rule exist in this case.'

We are of opinion that both demurrers were properly overruled, and affirm the judgment of the circuit court.

Mr. Justice MATTHEWS did not sit in this case.


text: Talk:Louis v. Trustees of Brown Township/Opinion of the Court


text:
Indiana Southern Company v. Liverpool London Globe Insurance

''Saml. A. Huff and A. L. Roache'', for appellants.

''Geo. Hoadly, E. M. Johnson, Edwd. Colston, and Benj. Harrison'', for appellees.

WALITE, C. J.


text: Talk:Indiana Southern Company v. Liverpool London Globe Insurance


text:
Indiana Southern Company v. Liverpool London Globe Insurance/Opinion of the Court

These are appeals from the final decree in a suit brought by the Liverpool, London & Globe Insurance Company to foreclose a mortgage given by the Indiana Southern Railroad Company to William H. Swift and Samuel J. Tilden, trustees, to secure an issue of bonds, 1,500 of which, amounting in the aggregate to $1,500,000, are held by the insurance company. The suit was begun in a state court on the thirteenth of June, 1868, but on the twenty-fourth of November, 1871, it was removed to the circuit court of the United States for the district of Indiana. Among the defendants when the removal was made, were the Ohio & Mississippi Railway Company, and the Fort Wayne, Muncie & Cincinnati Railroad Company. The Indiana Southern Company acquired its title to the mortgaged property in January, 1866, by purchase at a foreclosure sale of the property of the Fort Wayne & Southern Railroad Company. When this purchase was made the railroad was in an unfinished condition, and the Indiana Southern Company itself abandoned all work upon it early in 1867. A part only of the line was graded by these companies, and no ties or rails were ever laid by either of them. The Indiana Southern Company is confessedly insolvent. After the proceedings for the foreclosure of the mortgage of the Fort Wayne & Southern Company had been finished, after the mortgage by the Indiana Southern Company to Swift and Tilden had been executed, and after the commencement of this suit for its foreclosure, the Ohio & Mississippi Company, and the Fort Wayne, Muncie & Cincinnati Company, each purchased from the Fort Wayne & Southern Company a part of the line of that company, the purchasing companies intending to use the property purchased in the construction of their respective roads. They claimed that the proceedings for the foreclosure of the mortgage of the Fort Wayne & Southern Company were invalid, and that their title by purchased from that company was superior to the title of the Indiana Southern Company and its mortgagees. Upon their purchase they each entered into the possession of their respective portions of the old line, and proceeded to construct and finish their several roads thereon.

On the twelfth of September, 1872, Swift and Tilden, the trustees of the Indiana Southern mortgage filed a cross-bill in the cause, the object and purpose of which was to foreclose the mortgage for the benefit of all bondholders, and to quiet their title as against the adverse claims of the Ohio & Mississippi, and Fort Wayne, Muncie & Cincinnati Companies. The Indiana Southern Company has never answered either the bill or the cross-bill, and on the twenty-fourth of September, 1872, an order was entered in due form that the bill and cross-bill be taken as confessed by that company. On the fourteenth of November, 1873, a reference to a master was ordered to ascertain and report the amounts due to bondholders on the Indiana Southern mortgage. On the eighteenth of December, 1873, the Ohio & Mississippi and Fort Wayne, Muncie & Cincinnati Companies each filed answers to the bill and cross-bill, setting up their respective titles, and what they had done pending the suit in the construction of their roads upon and over a part of the original right of way and grading of the Fort Wayne & Southern Company. Before this time an agreement of compromise had been entered into between the insurance company and the two purchasing railroad companies, to take effect if all the other parties in interest should give their assent. This assent does not appear to have been obtained.

On the twenty-first of April, 1877, the master made a report, stating the amounts due the several bondholders who had proven their claims before him, and on the seventeenth of May the Indiana Southern Company filed exceptions to all his allowances. On the second of January, 1878, the same company appeared and moved to set aside the order referring the case to the master, and also for leave to file a cross-bill, the prayer of which was: (1) That the insurance company be required to take issue on the answers of the two railroad companies; (2) that the Indiana Southern Company might have leave to do the same thing; and (3) that a receiver be appointed to take the possession of the property from the two companies and hold it pending the suit. Leave to file this cross-bill was refused, but no action was taken directly on the motion to set aside the order of reference.

On the second of July, 1879, William H. Guion, claiming to have an interest in the bonds held by the insurance company, filed a petition to be admitted as a party to the suit for his own protection. This petition was denied.

On the twenty-eighth of January, 1880, both the trustees and the insurance company filed replications to the answers of the two railroad companies, and the cause was thereupon submitted to the court, by all the parties who had appeared and pleaded, on the original and cross-bills, the answers thereto, the replications and proofs, and on consideration a decree was entered, finding due to the insurance company the full amount of the bonds held by it, principal and interest, being more than $2,000,000, and to the other parties who had presented their claims the sums reported in their favor respectively by the master. It then odered a sale of the mortgaged property, subject 'to the right of the Ohio & Mississippi Railway Company, and the Fort Wayne, Muncie & Cincinnati Railroad Company, to remove from said right of way or real estate any ties, rails, and other structures by them respectively placed thereon, or, by proceedings under their power of eminent domain, to appropriate such portions of said right of way used and possessed by them respectively, on making compensation therefor in accordance with law.' From this decree the Indiana Southern Company took an appeal, giving security for costs only. Guion was also allowed an appeal on giving bond and security for costs, but the transcript does not show that he ever gave the bond. The objections made to the decree by the Indiana Southern Company are: (1) Because leave was refused the company to file its cross-bill; (2) because the amounts found due the respective bondholders were not supported by sufficient evidence; and (3) because of the reservations in favor of the Ohio & Mississippi and Fort Wayne, Muncie & Cincinnati Companies. The objection of Guion is that he was refused leave to become a party to the suit.

As to the first objection of the railroad company, it is sufficient to say that it was, under the circumstances, clearly within the discretion of the court to refuse leave to file the cross-bill. The object of the railroad company was to get replications to the answers of the two intervening, or, as they are called in the argument, intruding railroad companies, and the appointment of a receiver. The replications were afterwards filed by the insurance company and the trustees, and the case was clearly not one in which the appointment of a receiver would have been proper. If it had been, no cross-bill was necessary to get the appointment. The Indiana Southern Company was a party to the suit, and could move in that particular as well without as with the cross-bill.

As to the second objection, while this point is made in the assignment of errors, it was not mentioned in the argument. The evidence presented to the master in support of the claims of the several appearing bondholders has not been set up. The master says they each presented sworn statements of their title, and also presented and filed with him their bonds and coupons. As no objections were made to any of the proof, the claims were allowed as presented. Under these circumstances, we cannot review the decree in this particular.

As to the third objection, the railroad company has alone appealed. The bondholders and trustees under the mortgage are satisfied with the decree as it has been entered. The railroad company has no other property which can be subjected to the payment of the balance of the mortgage debt remaining due after the mortgage is exhausted, and if the mortgagees are satisfied with the security as it has been adjudged to them, we see no reason for inquiring, on the suggestion of the railroad company only, at this late day, whether they might not have had more.

The petition of Guion was for leave to appeal from a decree in a suit to which he was not a party. We decided in Ex parte Cutting, 94 U.S. 14, that such an appeal could not be taken. He had applied for relief to become a party, but this leave was not given. So he is not a party to the decree from which he appeals. But if he is, he has never perfected an appeal by giving the necessary security.

Under the appeal of the railroad company, the decree is affirmed, and the appeal of Guion is dismissed for want of jurisdiction.


text: Talk:Indiana Southern Company v. Liverpool London Globe Insurance/Opinion of the Court


text:
State of Pennsylvania

[Syllabus from page 174 intentionally omitted]

[Statement of Case from 175 intentionally omitted]

H. G. Ward and M. P. Henry, for petitioner.

Henry Flanders and ''Thos. F. Bayard'', for respondent.

WAITE, C. J.

title: State of Pennsylvania


text: Talk:State of Pennsylvania

title: Talk:State of Pennsylvania


text:
State of Pennsylvania/Opinion of the Court

We are unable to distinguish this case in principle from Ex parte Hagar, 104 U.S. 520, where it was held, on the authority of Ex parte Gordon, Id. 515, that as the admiralty court had jurisdiction of the vessel sued, and the subject-matter of the suit, it could not be restrained by a writ of prohibition from deciding all questions properly arising in that suit. This, like that, is a suit for pilotage fees, and the question is whether a statute of Delaware, under which the fees are claimed, is valid. If valid in Delaware it is in Pennsylvania, and the court sitting in Pennsylvania is as competent to decide that question in a suit of which it has jurisdiction as a court in Delaware. The jurisdiction of the court in Pennsylvania is no more dependent on the validity of the law than was that of the court in Delaware. The subject-matter of the suit is a claim of a Delaware pilot for his pilotage fees under a Delaware statute, and the sole question in the case is whether the fees are recoverable. The vessel when seized was confessedly within the jurisdiction of the court in Pennsylvania, and she was properly brought into court to answer the claim which was made upon her. About that there is no dispute, as there was at the last term in Re Devoe Manuf'g Co. 108 U.S., [S.C.. 2 SUP. CT. REP. 894,] where the question was as to the right of the court in New Jersey to send its process to the place where the seizure was made. There, the question was as to the jurisdiction of the court over a particular place; here, as to the liability of a vessel confessedly seized within the territorial jurisdiction of the court upon a claim subject to judicial determination in an admiralty proceeding. The evident purpose of this application is to correct a supposed error in a judgment of an admiralty court on the merits of an action. That cannot be done by prohibition. The remedy, if any, is by appeal. If an appeal will not lie, then the parties are concluded by what has been done. Congress alone has the power to determine whether the judgment of a court of the United States, of competent jurisdiction, shall be reviewed or not. If it fails to provide for such a review the judgment stands as the judgment of the court of last resort, and settles finally the rights of the parties which are involved.

The petition is dismissed.


text: Talk:State of Pennsylvania/Opinion of the Court


text:
Hunt v. Oliver (109 U.S. 177)

Henry M. Duffield, for appellants.

Alfred Russell, C. F. Burton, and ''Nathl. Wilson'', for appellee.

WAITE, C. J.

title: Hunt v. Oliver (109 U.S. 177)


text: Talk:Hunt v. Oliver (109 U.S. 177)

title: Talk:Hunt v. Oliver (109 U.S. 177)


text:
Hunt v. Oliver (109 U.S. 177)/Opinion of the Court

This is a motion for a writ of supersedeas to stay the execution of a writ of assistance issued by the circuit court, after an appeal to this court, to put the appellee in possession of a part of the property involved in the litigation below. The material facts affecting the motion, as found and determined by the circuit court, or otherwise shown by the motion papers, are these:

On the seventeenth of November, 1866, Oliver, the appellee, executed to Henry S.C.unningham, Garrett B. Hunt, and Jacob Eschelman a mortgage on certain lands in Michigan to secure a debt of $35,000. Included in this mortgage was the S. frac. 1/2 section 12, township 29, N., range 8 E., containing 227 5-100 acres, more or less, 'with the saw-mill and other improvements thereon.' In the summer of 1868, Oliver owned and possessed other lands incumbered by other mortgages, one to Calvin Haines and Philip N. Ranney, and others to other parties, and he also owed other debts to other persons, which were unsecured, amounting in the aggregate to a large sum. On the second of September, 1868, Cunningham assigned his interest in the $35,000 mortgage to his co-mortgagees, Hunt and Eschelman, and then took a conveyance from Oliver of all his property, real and personal, for the purpose of assisting him in disposing of it, and realizing any surplus that should remain after his debts were paid. Among other lands conveyed by Oliver at this time and for this purpose was frac. section 12, township 29 N., range 8 E. The decree finds that Cunningham took this conveyance 'for the joint benefit of himself and his co-mortgagees.' After this conveyance was made, Cunningham, Hunt, Eschelman, Haines, Ranney, George Robinson, and Henry Robinson formed a partnership to carry on lumbering business, and to cut the timber upon the property and manufacture it. Hunt then proceeded to foreclose the $35,000 mortgage, and purchased the mortgaged property at the foreclosure sale. After this, on the thirteenth of March, 1873, Oliver filed a bill in equity in the circuit court of the United States for the eastern district of Michigan against Cunningham, Hunt, Eschelman, Haines, Ranney, and the two Robinsons, the object of which was to redeem the lands which had been conveyed to Cunningham and to charge the defendants, as mortgagees in possession, with the rents and profits of the property. Upon this bill a final decree was rendered on the twenty-first of September, 1882, finding due from the defendants to Oliver the sum of $41,488.87, for which execution was ordered, and directing the defendants to 'surrender and yield up to the complainant possession of all lands transferred by said complainant to said defendant Cunningham, by deeds dated September 3, 1868,' and to make, execute, and deliver to complainant good and sufficient conveyances to transfer all their title and interest in and to the land described in said deeds, and which should describe and specify the lands as follows: 'The entirety of the following lands: * *  * Entire frac. sec. 12, town. 29 north, range 8 east. * *  * ' From this decree Hunt and Eschelman alone appealed, giving security for a supersedeas. Upon section 12 is a valuable sawmill but the complainant claims it is located on the north half of the section and not on the south half. After the appeal and supersedeas were perfected, Oliver applied to the circuit court for a writ of assistance to put him in possession of the north half of this section, and the writ was granted, on the ground that as Hunt had title only to the south half of the section, his appeal did not operate to stay the execution of the decree as to the north half. It is to stay the execution of this writ that the present application is made.

We think this motion should be granted. The decree appealed from finds as a fact that although the conveyance of Oliver was in form to Cunningham alone, it was taken by him for the joint benefit of himself and his co-mortgagees; that is to say, Hunt and Eschelman, the appellants. Such being the case, it is a matter or no importance that the legal title to the north half of section 12 may not have been in either of the appellants. As Cunningham took title to the whole property for them as well as himself, whatever in the decree affects that title affects them as well as him. They have been charged with the entire amount realized from the whole property, and it is impossible to reach any other conclusion, from the papers submitted on this motion, than that, in the whole proceeding below, the appellants were deemed to have been in equity grantees under the deed to Cunningham jointly with him, and that their rights under the appeal are to be governed accordingly. Certainly an appeal with supersedeas by him would on the face of the papers stay the execution of the writ of assistance now complained of, and if such an appeal would have that effect as to him, the present appeal must as to these appellants.

A writ of supersedeas, such as is asked for, may issue on application to the clerk by the appellants, or either of them.


text: Talk:Hunt v. Oliver (109 U.S. 177)/Opinion of the Court


text: Author:Alexander Robert Reinagle

title: Author:Alexander Robert Reinagle


text:
Evans v. Brown

R. D. Mussey, for appellants.

Frederic Ullmann and L. D. Norris, for appellees.

WAITE, C. J.

This is a motion to dismiss an appeal because the decree appealed from is not a final decree. The motion papers show that the appellees, Meeker, Brown, and Brooks, a minority of the stockholders of the Winthrop Iron Company, on or about the twelfth of November, 1881, filed a bill in equity in the circuit court of the United States for the western district of Michigan against the Winthrop Iron Company, the Winthrop Hematite Company, and certain directors of the iron company who were the stockholders of the hematite company, the object and purpose of which was to set aside as fraudulent and void the proceedings of the stockholders of the iron company at a meeting held in Chicago on the first of October, 1881, and to have a receiver appointed to take possession of the property of the company and manage its affairs. The effect of the proceedings of the meeting complained of was, as alleged, to authorize a lease of the property of the iron company to the hematite company from and after the first of December, 1882, for the personal advantage of the majority stockholders of the iron company, regardless of the rights of the minority. The stockholders of the hematite company were also elected directors of the iron company, and constituted a majority of the board. On the second day of October, 1882, the cause was submitted to the court upon the pleadings, proofs, and arguments of counsel. From the proofs it appeared that, notwithstanding the pendency of the suit, the iron company had, on the thirtieth of November, 1881, executed a lease to the hematite company, according to the vote of the stockholders. On the sixth of April, 1883, a decree was rendered which, in effect, adjudged that the proceedings of the meeting were in fraud of the rights of the minority stockholders, and that the lease which had been executed in accordance with the authority then given was 'null and void, for the fraud of the defendants, the Winthrop Hematite Company and the St. Clair Bros.,' the majority stockholders and directors of the iron company, 'in procuring the same.' By the same decree a receiver was appointed to take charge of and manage the business of the iron company, evidently because a majority of the board of directors, after the election at the October meeting, were considered unfit to control its affairs, as their personal interests were in conflict with the interests of the company. Both the iron company and the hematite company, as well as the defendant directors of the iron company, were ordered to 'forthwith surrender and deliver to' the receiver all the property of the iron company, and 'all corporate records and papers.' The receiver was fully authorized to 'continue the management of the business of the * * * company, with power to lease or operate its mines and plants until the further order of the court.' The decree further ordered an accounting before a master by the hematite company and the defendant directors of the iron company, for all profits realized from the use of the leased property after the first of December, 1882, the date of the beginning of the term under the lease which had been set aside. There was also an order for an accounting by the defendant directors 'concerning the ores mined by them, and the royalty upon such ores due and owing by them to the * * * company, and concerning the rights and obligations of the lessor and lessee, under and according to a lease mentioned in the bill, * * * expiring on December 1, 1882.' At the foot of the decree is the following: 'And the court reserves to itself such further directions as may be necessary to carry this decree into effect, concerning costs, or as may be equitable and just.' From this decree the appeal was taken.

In our opinion the decree as entered is a final decree, within the meaning of section 692 of the Revised Statutes regulating appeals to this court. The whole purpose of the suit has been accomplished. The lease made under the authority of the meeting of October, 1881, has been canceled, and the management of the affairs of the company has been taken from the board of directors, a majority of whom were elected at that meeting and committed to a receiver appointed by the court, plainly because, in the opinion of the court, the rights of the minority stockholders would not be safe in the hands of directors elected by the majority. In order that the receiver may perform his duties, the defendants are required to turn over to him the entire property and records of the company. The accounting ordered is only in aid of the execution of the decree, and is no part of the relief prayed for in the bill, which contemplated nothing more than a rescission of the authority to execute the fraudulent lease, or a cancellation of the lease if executed, and a transfer of the management of the affairs of the company from a board of directors, whose personal interests were in conflict with the duty they owed the corporation, to some person to be designated by the court. The litigation of the parties as to the merits of the case is terminated, and nothing now remains to be done but to carry what has been decreed into execution. Such a decree has always been held to be final for the purposes of an appeal. Bostwick v. Brinkerhoff, 106 U.S. 3, [S.C.. 1 SUP. CT. REP. 15,] and cases there cited. In Forgay v. Conrad, 6 How, 204, it was said by Chief Justice TANEY, for the court:

title: Evans v. Brown


text: Talk:Evans v. Brown

title: Talk:Evans v. Brown


text:
Evans v. Brown/Opinion of the Court

'And when the decree decides the right to the property in     contest, and directs it to be delivered by the defendant to      the complainant, *  *  * and the complainant is entitled to      have such a decree carried immediately into execution, the      decree must be regarded as a final one to that extent, and      authorizes an appeal to this court, although so much of the      bill is retained in the circuit court as is necessary for the      purpose of adjusting, by a further decree, the accounts      between the parties pursuant to the decree passed. This rule,     of course, does not apply to cases where money is directed to      be paid into court, or property to be delivered to a receiver, or property held in trust to be      delivered to a new trustee appointed by the court, or to      cases of a like description. Orders of that kind are     frequently and necessarily made in the progress of a cause. But they are interlocutory only, and intended to preserve the     subject-matter in dispute from waste or dilapidation, and to      keep it within the control of the court until the rights of      the parties concerned can be adjudicated by a final decree.'

Here the rights of the hematite company and the defendant directors of the iron company have been adjudicated and definitely settled. Their lease, which was in reality the subject-matter of the action, has been canceled, and a delivery of the leased property to the iron company has been ordered. The complainants are entitled to the immediate execution of such a decree. The receiver to whom the delivery is to be made was not appointed to hold the property until the rights of the parties could be adjudicated, but to stand, subject to the direction of the court, in the place of, and as and for, the corporation, because, under the circumstances, the corporation is incapacitated from acting for itself. His position is like that of the guardian of the estate of an incompetent person. He represents the iron company, and a delivery of the leased property to him is a delivery in fact and in law to the company itself; that is to say, to the party for whose use the suit was prosecuted. The complainant stockholders sue for the company, and the delivery to the receiver is a delivery to the company that has been adjudged to be entitled to immediate possession, notwithstanding the lease to the hematite company. The defendant directors have not in form been removed from their office, but their power as directors has been taken from them, and they are no longer able to carry into effect the orders of the stockholders made in fraud of the rights of the minority at the meeting in October. A new officer has been appointed to stand in the place of the directors as manager of the affairs of the company. In the words of Mr. Justice MCLEAN, in Craighead v. Wilson, 18 How. 201, the decree is final 'on all matters within the pleadings,' and nothing remains to be done but to adjust the accounts between the parties growing out of the operations of the defendants during the pendency of the suit. The case is altogether different from suits by patentees to establish their patents and recover for the infringement. There the money recovery is part of the subject-matter of the suit. Here it is only an incident to what is sued for.

The motion to dismiss is denied.

title: Evans v. Brown/Opinion of the Court


text: Talk:Evans v. Brown/Opinion of the Court


text:
Winthrop Iron Company v. Meeker

''Wm. Woodburn'', for plaintiff in error.

W. E. F. Deal and C. J. Hillyer, for defendant in error.

WAITE, C. J.

title: Winthrop Iron Company v. Meeker


text: Talk:Winthrop Iron Company v. Meeker

title: Talk:Winthrop Iron Company v. Meeker


text:
Winthrop Iron Company v. Meeker/Opinion of the Court

The writ of error in this case was not made returnable on any particular day. This, if the defect is not cured by amendment, entitles the defendant in error to a dismissal; but the plaintiff in error asks leave, under the authority of section 1005, Rev. St., to amend the writ by inserting the proper return-day. That leave we grant, and therefore overrule the motion to dismiss; but, on looking into the record, we find the case was manifestly brought here for delay only. All the questions presented are so frivolous as not to need further argument. The motion to affirm is granted. Judgment affirmed.


text: Talk:Winthrop Iron Company v. Meeker/Opinion of the Court


text:
Author:Alexander Nowell

Catechisms

 * Large Catechism
 * Catechismus, sive prima Institutio Disciplinaque Pietatis Christianæ (1570)
 * (tr) A Catechisme or first Instruction and Learning of Christian Religion, by T. Norton (1570), by Thomas Norton

 * Middle Catechism
 * Christianæ Pietatis prima Institutio ad usum Scholarum (1570)
 * (tr) A Catechisme or Institution of Christian Religion to be learned of all youth next after the little catechisme appoynted in the Booke of Common Prayer (1572), by Thomas Norton

 * Small Catechism
 * Catechismus parvus pueris primum Latine qui ediscatur, proponendus in scholis (1572)
 * (tr) The Little Catechisme (1577), by Thomas Norton

Other works

 * A book containing Redman's last judgment of several points of religion (1551)
 * An Homily … concerning the Justice of God … appoynted to be read in the time of sicknes (n. d.)
 * Reproofe written by A. N. of a book entituled "A Proofe of certain Articles in Religion denied by Master Jewel, set forth by Tho. Dorman, B.D.," (1565)
 * The Reproofe of M. Dorman's Proofe … continued (1566)
 * A Confutation as wel of M. Dorman's last book entituled a “Defence,” &c. … as also of Dr. Saunder's "Causes of Transubstantiation" (1567)
 * A True Report of the Disputation … held in the Tower of London with Edmund Campion, Jesuite, 31 Aug. 1581 (1583)
 * Sermon preached 11 Jan. 1563, ap. Catechism
 * Carmina duo in obitum Buceri,’ ap. ‘Buceri Scripta Anglicana

title: Author:Alexander Nowell


text:
Retzer v. Wood

This suit was commenced in a court of the state of New York, and was removed by the defendant into the circuit court of the United States for the southern district of New York by a writ of certiorari. The defendant was a collector of internal revenue, and exacted and collected from the plaintiff, at various times in the years 1866, 1867, and 1868, sums of money amounting in all to $61.30, as a tax of 3 per centum on the gross amounts of the plaintiff's receipts from his business, under the provisions of section 104 of the act of June 30, 1864, c. 173, (13 St. at Large, 276,) which enacted, 'that any person, firm, company, or corporation carrying on or doing an express business, shall be subject to and pay a duty of 3 per centum on the gross amount of all the receipts of such express business.' The suit was commenced June 2, 1874. The plea was the general issue. The statute of limitations was not pleaded. A jury having been waived by a written stipulation of the parties, the action was tried before the court without a jury. The court found the fact of the dates and amounts of the exactions, and these further facts: The plaintiff's business was the carrying of goods between New York and Brooklyn, and from one place in the city of Brooklyn to another place in the same city. He did not run regular trips, nor over regular routes or ferries, but where ordered. He had a place in Brooklyn where he received orders on a slate from persons who wished articles sent from there to New York, and from one place in Brooklyn to another place in Brooklyn. The goods were carried in wagons. They were of a miscellaneous character, such as boxes of dry goods, barrels of sugar, rolls of sole leather, trunks, and general merchandise. His business was done solely upon call, and at special request, and, as requested, he sent to any place in either of said cities and took baggage or freight to any place in either of said cities. On the twenty-eighth of May, 1873, he presented to the commissioner of internal revenue a claim, supported by his own oath, for the refunding to him of the moneys so exacted as taxes. No decision was ever made on the claim. The court found, as conclusions of law, (1) that the tax was illegally exacted; (2) that the action was barred by section 44 of the act of June 6, 1872, c. 315, (17 St. at Large, 257.) A judgment was rendered for the defendant. To reverse that judgment the plaintiff brought this writ of error.

There is in the record a bill of exceptions which shows that, after the plaintiff had given evidence to establish the facts so found, the defendant offering no testimony, the plaintiff requested the court to render judgment for the plaintiff, but the court refused, and the plaintiff excepted, and the court directed a judgment for the defendant, and the plaintiff excepted.

Wm. Stanley and Edwin B. Smith, for plaintiff in error.

''Sol. Gen. Phillips'', for defendant in error.

BLATCHFORD, J.

title: Retzer v. Wood


text: Talk:Retzer v. Wood

title: Talk:Retzer v. Wood


text:
Retzer v. Wood/Opinion of the Court

We are of opinion that the plaintiff was not liable to this tax, because he did not carry on or do an 'express business,' within the meaning of the statute. Although he carried goods between New York and Brooklyn, and from one place to another in either city, he did so solely on call and at special request. He did not run regular trips or over regular routes or ferries. He was no more than a drayman or truckman, doing a job when ordered. The fact that he had a place in Brooklyn where orders could be left on a slate made no difference. The words 'express business,' in the statute, must have the meaning given them in the common acceptation. An 'express business' involves the idea of regularity, as to route or time, or both. Such is the definition in the lexicons. Whether, if the plaintiff had held out to the world, at any place of business, that he was carrying on an 'express,' or was doing an 'express business,' or had so designated himself by inscription on his vehicle or vehicles, that would have made any difference, it is not necessary to inquire, because no such thing was shown.

As to the defense of the statute of limitations, it was not pleaded, nor brought to the attention of the court, as a defense, at the trial. It was not within the issue raised by the plea of the general issue, which was the only issue to which the stipulation for a trial by the court extended. It is well settled that, in the absence of a contrary rule established by statute, a defendant who desires to avail himself of a statute of limitation as a defense must raise the question either in the pleading, or on the trial, or before judgment. Storm v. U.S. 94 U.S. 76, 81; Upton v. McLaughlin, 105 U.S. 640. Such was always the law in New York, and no contrary rule was in force in New York, by statute, at any time after this suit was brought. When the testimony at the trial closed, and the plaintiff asked for a judgment in his favor, he was entitled to it. It is proper that the circuit court should be directed to enter such a judgment. The conclusion of law, by the circuit court, that the tax was illegally exacted being a correct conclusion, and its conclusion that the suit was barred by limitation being an incorrect conclusion, it follows that the plaintiff was entitled to judgment on the facts found. The special findings of fact were equivalent to a special verdict, and the question thereon was whether they required a judgment for the plaintiff or the defendant. This was a matter of law, the ruling on which can be reviewed by this court. Norris v. Jackson, 9 Wall. 125.

The defendant in error asks that, if the judgment be reversed, the case be remanded, so that the statute of limitations may be pleaded. Without passing on a question as to whether the statute invoked would furnish a defense in this case, we are of opinion that no ground exists for the course suggested. The record shows that the defendant's attorney had notice, by the declaration, that the plaintiff's claim accrued before a date more than eight years prior to the filing of the plea. Under such circumstances it would not be a fair exercise of discretion not to hold the defendant to his legal status.

The judgment is reversed, and the case is remanded to the circuit court, with directions to enter a judgment for the plaintiff for $61.30, with interest according to the law of the state of New York.

title: Retzer v. Wood/Opinion of the Court


text: Talk:Retzer v. Wood/Opinion of the Court


text:
Snyder v. Marks

This suit was brought in a state court of Louisiana by the appellant, a tobacco manufacturer, against the appellee, a collector of internal revenue, to obtain an injunction restraining the appellee from seizing and selling the property of the appellant to pay two assessments of taxes against him, made by the commissioner of internal revenue, and to have the assessments declared void. An injunction having been granted ex parte, the appellee removed the suit, by certiorari, into the circuit court of the United States for the district of Louisiana, on the allegation that it was brought on account of acts done by the appellee, as such collector, under authority of the internal revenue laws of the United States, and to enjoin him, in his official capacity, from enforcing the payment of assessments made against the appellant, under authority of such laws, by executing warrants of distraint, as authorized by such laws. After the removal of the suit the appellant, under an order to reform his pleading, filed a bill in equity in the circuit court. It set forth the assessments complained of as being in these words:

'Alphabetical list of persons liable to tax under the     internal revenue laws of the United States, in the collection      district of the state of Louisiana, reported by the collector      of said district for assessments, and the amount assessed      against each by the commissioner of internal revenue, and      certified to the collector of said district, for the month of      October, 1879.

Total tax

Name P.O. address Article or  Period  Tax  and

occupation   assessed  penalty

assessed

Snyder, Chas.A. New Orleans  S. T. Tob,   July 6, '78 to    $1,872 12   $1,872 12

7,800 1/2 lbs. Dec. 3, 78.

Irwin & Snyder. ... do ... ...do...6,657 lbs... Jan'y 1, 78. 1,597 68   1,597 68

June 5, '78

"Made Nov. 17, 1879."

The bill also averred that the assessments did not show upon what they were based, nor upon what the taxes were claimed to be due, and were void for uncertainty and unauthorized by law, and the commissioner of internal revenue was without jurisdiction to make them; that the Irwin & Snyder assessment was made more than 15 months after the time which it embraced had elapsed, and that was true, also, as to a part of the Snyder assessment, and the commissioner had no authority to make an assessment except for a period of time not exceeding 15 months before it was made; that the appellant was never a member of the firm of Irwin & Snyder; that he never owed the amount of either assessment; that, when he commenced the manufacture of tobacco, he gave a bond to the United States, in a penalty of $20,000, conditioned that he would stamp all tobacco manufactured by him, as required by law, and comply with all the requirements of law relating to the manufacture of tobacco, and the sureties thereon were solvent, and that, if the United States had any lawful claim against him, an action would lie on the bond, which was ample security, while he was without adequate remedy against the United States for the seizure of his property to pay the claims. The prayer of the bill was for a decree declaring each of the assessments void as against the appellant, and enjoining the appellee from distraining on the property of the appellant for the purpose of collecting the amounts of the assessments, and from attempting to collect the same except by judicial process.

The appellee demurred to the bill for want of equity, and because no suit could be maintained in any court to restrain the collection of any tax of the United States, and the appellant could not be permitted in this suit to attack the validity or regularity of the essessments or restrain the execution of a warrant issued thereunder. The circuit court sustained the demurrer and dismissed the bill. To review its decree this appeal is brought.

J. D. Kouse and ''Wm. Grant'', for appellant.

Asst. Atty. Gen. Maury, for appellee.

BLATCHFORD, J.

title: Snyder v. Marks


text: Talk:Snyder v. Marks

title: Talk:Snyder v. Marks


text:
Snyder v. Marks/Opinion of the Court

The sole object of the suit is to restrain the collection of a tax which purports to have been assessed under the internal revenue laws. A decree adjudging the tax to be void as against the appellant is sought for only as preliminary to relief by injunction, and would be futile for any purpose of this suit, unless followed by an injunction.

The internal revenue act of July 13, 1866, c. 184, (14 St. at Large, 152,) provided, section 19, as follows:

'No suit shall be maintained in any court for the recovery of     any tax alleged to have been erroneously or illegally      assessed or collected, until appeal shall have been duly made      to the commissioner of internal revenue according to the      provisions of law in that regard, and the regulations of the      secretary of the treasury, established in pursuance thereof,      and a decision of said commissioner shall be had thereon,      unless such suit shall be brought within six months from the      time of said decision, or within six months from the time      this act takes effect: provided, that if said decision shall      be delayed more than six months from the date of such appeal,      then said suit may be brought at any time within twelve      months from the date of such appeal.'

By section 10 of the act of March 2, 1867, c. 169, (14 St. at Large, 475,) it was enacted that section 19 of the said act of 1866 be amended 'by adding the following thereto:' 'And no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court.' In the Revised Statutes this amendment of and addition to section 19 of the act of 1866 is made a section by itself, (section 3224,) separated from that of which it is an amendment, and to which it is an addition, and reads thus: 'No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.' The word 'any' was inserted by the revisers. This enactment in section 3224 has a no more restricted meaning than it had when, after the act of 1867, it formed a part of section 19 of the act of 1866, by being added thereto. The first part of section 19 related to a suit to recover back money paid for a 'tax alleged to have been erroneously or illegally assessed or collected,' and the section, after thus providing for the circumstances under which such a suit might be brought, proceeded, when amended, to say that 'no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court.' The addition of 1867 was in pari materia with the previous part of the section, and related to the same subject-matter. The 'tax' spoken of in the first part of the section was called a 'tax' sub modo, but was characterized as a 'tax alleged to have been erroneously or illegally assessed or collected.' Hence, when, on the addition to the section, a 'tax' was spoken of, it meant that which is in a condition to be collected as a tax, and is claimed by the proper public officers to be a tax, although on the other side it is alleged to have been erroneously or illegally assessed. It has no other meaning in section 3224. There is therefore no force in the suggestion that section 3224, in speaking of a 'tax,' means only a legal tax; and that an illegal tax is not a tax, and so does not fall within the inhibition of the statute, and the collection of it may be restrained.

The statute clearly applies to the present suit, and forbids the granting of relief by injunction. It is distinctly alleged in the bill that the appellee claims that the appellant owes to the United States the amounts assessed for taxes,-both the tax assessed against the appellant and that assessed against Irwin & Snyder. The bill also shows sufficiently that the assessment had relation to the business of the appellant as a manufacturer of tobacco, and to his liability to tax, under the internal revenue laws, in respect to such business. The instructions of the internal revenue department in regard to the preparation of assessment lists provided that where an assessment was reported against a manufacturer of tobacco for having removed any taxable articles from his manufactory without the use of the proper stamp, or for not having duly paid such tax by stamp at the time and in the manner provided by law, the entry in the column headed 'article or occupation' should be 'Stamp Tax, Tob.,' with liberty to use the initials 'S. T.' as an abbreviation for 'stamp tax.' The instructions stated that 'Tob.' is an abbreviaton for 'tobacco.' Resort may be had to these instructions to show the meaning of the abbreviations in the assessment list. Read by the light of the instructions, the list shows a tax which the appellant might be liable to pay, and one which the commissioner had general jurisdiction to assess against him.

The inhibition of section 3224 applies to all assessments of taxes, made under color of their offices, by internal revenue officers charged with general jurisdiction of the subject of assessing taxes against tobacco manufacturers. The remedy of a suit to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden. The remedy so given is exclusive, and no other remedy can be substituted for it. Such has been the current of decisions in the circuit courts of the United States, and we are satisfied it is a correct view of the law. Howland v. Soule, Deady, 413; Pullan v. Kinsinger, 2 Abb. (U.S.) 94; Robbins v. Freeland, 14 Int. Rev. Rec. 28; Delaware R. Co. v. Prettyman, 17 Int. Rev. Rec. 99; U.S. v. Black, 11 Blatchf. C. C. 543; Kissinger v. Bean, 7 Biss. 60; U.S. v. Pacific Railroad, 4 Dill. 69; Alkan v. Bean, 23 Int. Rev. Rec. 351; Kensett v. Stivers, 18 Blatchf. C. C. 397. In Cheatham v. U.S. 92 U.S. 85, 88, and again in State Railroad Tax Case, Id. 575, 613, it was said by this court that the system prescribed by the United States in regard to both customs duties and internal revenue taxes, of stringent measures, not judicial, to collect them, with appeals to specified tribunals, and suits to recover back moneys illegally exacted, was a system of corrective justice intended to be complete, and enacted under the right belonging to the government to prescribe the conditions on which it would subject itself to the judgment of the courts in the collection of its revenues. In the exercise of that right it declares, by section 3224, that its officers shall not be enjoined from collecting a tax claimed to have been unjustly assessed, when those officers, in the course of general jurisdiction over the subject-matter in question, have made the assessment and claim that it is valid.

The decree of the circuit court is affirmed.

title: Snyder v. Marks/Opinion of the Court


text: Talk:Snyder v. Marks/Opinion of the Court


text: Cragin v. Lovell

title: Cragin v. Lovell


text: Talk:Cragin v. Lovell

title: Talk:Cragin v. Lovell


text:
Cragin v. Lovell/Opinion of the Court

United States for the District of Louisiana.]

v.

[Appeal from the Circuit Court of the United

November 12, 1883.

These two cases have been argued together. Eliza A. Quitman, the defendant in error and appellee, having died since the judgment below, William S. Lovell, her executor, has appeared in her stead. In the action at law, she filed a petition against George D. Cragin, in the circuit court of the United States for the district of Louisiana, alleging that she was a citizen of New York and he was a citizen of Louisiana; that on the thirty-first of January, 1878, she sold a plantation to Orlando P. Fisk for the price of $22,500, of which the sum of $4,500 was paid in cash, and for the rest of which nine notes of Fisk were given for $2,000 each, payable in successive years, and secured by a mortgage of the estate; that Cragin had paid the first three of the notes, and the petitioner, by foreclosure and sale of the estate under the mortgage, had obtained the sum of $10,447.05, to be credited on the remaining notes under date of May 1, 1874; and further alleging as follows:

'Now your petitioner represents that George D. Cragin is and     was the real owner of said property, and liable to your      petitioner, for the following reasons, viz.:

'That subsequently to the said purchase of property by said     Fisk, by a certain proceeding filed in this honorable court,      the said Cragin did claim the entire ownership of the said      property, and did claim that the purchase made in the name of      the said Fisk was illegally entered in his own name by said      Fisk, who was acting merely as the agent of said Cragin, and      that the amount of the purchase price of said property paid      in cash, as well as the first and second notes aforesaid,      were made by said Fisk with the money of said Cragin, and      that he, said Cragin, was liable for and ready to pay for      said property; that thereafter, in due course of law, and after proper proceedings, the said      Cragin was adjudged by this honorable court, by final decree,      to be the owner of said property, and the matters and things      in said petition contained were found to be true and correct.

'That pending said proceedings the said George D. Cragin was     and in said case appointed the receiver of the said      plantation, so sole by your petitioner as aforesaid, and      that, acting as such receiver, and subsequently as such owner      of said plantation, he did remove therefrom all the movable      property thereon, and which existed thereon at the date of      the sale by your petitioner to said Fisk, of a value      exceeding $1,000, and did lay waste and dilapidate the said      property, to benefit his adjoining plantation, and to the      detriment of your petitioner's rights.

'Petitioner further avers, that by reason of the causes     aforesaid the said George D. Cragin is liable and indebted      unto your petitioner in the full amount of said notes, less      the credit due as aforesaid, for which amicable demand has      been made without avail.'

The record shows that Cragin was served with process in Louisiana, and, not appearing, was defaulted, and judgment was rendered for the plaintiff in the sum claimed, (which was shown by computation and agreement of counsel to be $6,888.40,) and the defendant sued out a writ of error, which is the first of the cases before us.

The other case is an appeal from a decree of the same court, dismissing upon demurrer a bill in equity, filed by Quitman against Cragin to annul and avoid the judgment aforesaid and to restrain the issue of execution thereon. The bill set forth the proceedings in the suit at law; and its only other material allegations were, that the circuit court had no jurisdiction of that suit, because both parties were citizens of New York; and that Quitman, knowing that fact, falsely and fraudulently alleged Cragin to be a citizen of Louisiana, and illegally and unjustly obtained judgment by default against him.

Mr. J. D. Rouse and Mr. William Grant, for Cragin.

[Argument of Counsel from pages 196-197 intentionally omitted]

Mr. Joseph P. Hornor, and Mr. W. S. Benedict for Lovell.

[Argument of Counsel from page 197 intentionally omitted]

It is quite clear that the bill in equity was rightly dismissed, because it contains no allegation that Cragin did not know, before the judgment against him in the suit at law, that the plaintiff in that suit alleged that he was a citizen of Louisiana. If he did then know it, he should have appeared and pleaded in abatement; and equity will not relieve him from the consequence of his own negligence. Jones v. League, 18 How. 76; Crim v. Handley, 94 U.S. 652. The decree in the suit in equity must therefore be affirmed. But it is equally clear that the judgment at law is erroneous. The petition shows no privity between the plaintiff and Cragin. It alleges no promise or contract by Gragin to or with the plaintiff. The mere description of the notes, received by the plaintiff, as 'notes of Fisk,' does not show that they were not negotiable instruments, but on the contrary, in the connection in which it is used, and applied to notes given for the purchase money of land, and secured by mortgage thereof, designates (as was assumed by both counsel at the argument) negotiable promissory notes, bearing no name but that of Fisk as maker; and on such notes no action will lie against any other person. Nash v. Towne, 5 Wall. 589, 703; Williams v. Robbins, 16 Gray, 77; In re Adansonia Fibre Co. L. R. 9 Ch. 635; Daniels v. Burnham, 2 La. 243, 245. The case does not come within the decisions in Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326, and in Metcalf v. Williams, 104 U.S. 93, in each of which the name of the principal appeared upon the face of the note.

If the action is treated, not as an action upon the notes themselves, but as an action to recover the amount of the notes, by reason of a subsequent agreement of Cragin to pay them, the plaintiff fares no better. The only allegations touching the relation of Cragin to these notes are that, in a suit by him against Fisk, he alleged that Fisk, in purchasing the land, acted merely as his agent, and that he owned the land, and was liable and ready to pay for it; and that he was thereupon adjudged to be the owner of the land and took possession thereof. If this amounted to a promise to any one, it was not a promise to the plaintiff, nor even a promise to Fisk to pay to the plaintiff the amount of the notes, but it was, at the utmost, a promise to Fisk to pay that amount to him, or to indemnify him in case he should have to pay it. It is therefore not within the provisions of the Louisiana Codes, cited in argument; and the defendant is liable to an action at law by Fisk only, and not by the plaintiff. ''Nat. Bank v. Grand Lodge, 98 U.S. 123; Exchange Bank v. Rice'', 107 Mass. 37; McCauley v. Hagan, 6 Rob. (La.) 359. The final allegation, that by reason of the causes aforesaid the defendant is indebted and liable to the plaintiff, is a mere conclusion of law, which is not admitted by demurrer or default. Hollis v. Richardson, 13 Gray, 392.

The judgment having been rendered on default, upon a declaration setting forth no cause of action, may be reversed on writ of error. McAllister v. Kuhn, 96 U.S. 87; Hollis v. Richardson, above cited; Louisiana State Bank v. Senecal, 9 La. 225. This court, on reversing a judgment of the circuit court, may order such judgment for either party as the justice of the case may require. Rev. St. § 701; ''Ins. Cos. v. Boykin'', 12 Wall. 433. In the case at bar, the order, following the precedent of Slacum, v. Pomery, 6 Cranch, 221, will be that the judgment below be reversed, and the case remanded with directions that judgment be arrested. Ordered accordingly.

title: Cragin v. Lovell/Opinion of the Court


text: Talk:Cragin v. Lovell/Opinion of the Court


text:
United States v. Gibbons

The principal question in this case relates to the proper construction of a building contract betwwen the parties, entered into May 22, 1866, the United States acting by Joseph Smith, chief of the bureau of yards and docks, under the authority of the navy department, for the repair of the entrance buildings and carpenter-shop at the Norfolk navy-yard, which had been destroyed by fire in 1861, at the outbreak of the eivil war. The contract required the appellee to furnish, at his own risk and expense, all the materials and work necessary for the repairs of the buildings, according to the plans and specifications annexed; and entrance buildings to be entirely completed and delivered within 120 days, and the carpentershop within 30 days, from the date of the contract. A gross sum was to be paid for the work on each, partial payments to be made during the progress of the work upon the certificate of the superintendent, and final payment when the work should be entirely completed, according to the plans and specifications, 'and to the satisfaction of the party of the second part.' It was declared in the contract that 'no extra charge for modifications will be allowed unless mutually agreed upon by the parties, and no changes or modifications mutually agreed upon by the parties to this contract shall in any way affect its validity.' The specifications for the entrance buildings contained the following clause, upon which the case turns: 'The foundations and the brick walls now standing that were injured by the fire will remain, and be carried up to the height designated in the plan by new work.' The contract was made in pursuance of proposals, invited by an advertisement, in which it was stated that 'persons desiring to bid must necessarily visit the yards and examine the present condition of the works, and can there see the plans and specifications to enable them to bid understandingly.' The findings of fact by the court of claims bearing on this point are as follows:

'(3) At the outbreak of the late rebellion these buildings     mentioned in the contract were burnt, but portions of the      walls were left standing. Prior to the proposals for work an     inspection of these fragmentary walls, so left standing, had      been made by the officers of the government in charge of the      works, and those portions of them deemed unfit to form a part      of the permanent structure were taken down, and those parts      which were considered uninjured and proper to be built upon      were left standing for that purpose. After the agents of the government     had prepared the walls, retaining the portion which the civil      engineer of the navy-yard in charge of the work supposed      might be used in the new structure, the chief of the bureau      of yards and docks invited the examination of bidders by the      advertisement annexed to the petition, and the claimant, by      his agent, visited and saw the walls so standing. At the time     the claimant, by his agent, so visited the yard he was shown      the walls by a quarterman acting under the civil engineer of      the yard. The claimant's agent asked if those walls were to     stand. The quarterman replied that they were, so far as he     knew, and that Mr. Williams, the master mason of the yard,      and Mr. Worrall, the civil engineer of the yard, had said      that they were to stand. (But it does not appear that the     quarterman was authorized to make such representations to the      claimant's agent.) And the civil engineer likewise      represented to the claimant's agent that the portion of the      walls then standing would remain and be used in the new work. After the claimant's agent had so visited the yard and been     shown the the walls the claimant made his bid.

'(4) After the claimant had begun work under his contract it     was discovered that a portion of the walls still standing had      been so injured by the fire as to be unfit for building a      superstructure thereon. Commodore Hitchcock, commanding the     naval station, thereupon ordered that the walls be further      razeed, and, pursuant to his orders, about one-third of the      portion then standing was taken down by the claimant before      proceeding to build. The effect of this second razeeing was     that the claimant had to substitute new brick-work for that      so removed; and the additional cost of construction thereby      thrown upon him was the sum of $4,050; and for it he has      received no remuneration additional to the price named or      consideration expressed in the contract. It does not appear     that at the time Commodore Hitchcock ordered the walls to be      further razeed the defendant's oflicers made any pretense or      claim that the increased expense was to be borne by the      claimant as work required by the contract; nor does it appear      that the claimant made any objection to the taking down of      the walls as ordered by Commodore Hitchcock.'

The appellee claimed compensation beyond the contract price for the additional cost of construction rendered necessary by rebuilding that portion of the walls torn down by order of Commodore Hitchcock. The United States contended that it was covered by the terms of his contract.

Asst. Atty. Gen. Maury, for appellant.

Enoch Totten, for appellee.

MATTHEWS, J.

title: United States v. Gibbons


text: Talk:United States v. Gibbons

title: Talk:United States v. Gibbons