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Chilton v. Braiden's Administratrix

Appeal from the Circuit Court of the United States for the District of Columbia.

The appellee, Margaret Lyons, administratrix of Elizabeth Braiden, deceased, on February 12th, 1857, filed her bill in the Circuit Court of the District of Columbia for the sale of part of square No. 226, in the City of Washington, to enforce the payment of the purchase money due therefor, against Agnes R. Hazard, a married woman,-who had purchased on the credit of her separate estate. O. E. P. Hazard, her husband, and Sam'l Chilton, her trustee, were joined with her as defendants.

The bill sets forth the sale of the property to Agnes R. Hazard-as shown by the recitals of the deed-the conveyance to Chilton, as trustee for her-and avers that the purchase money is due and unpaid. Mrs. Hazard filed her answer, admitting the sale and conveyance, but denying that 'the sum of $6,000 remains due and unpaid,' and 'she shows to the Court that she fully satisfied the said Elizabeth in her life time with the said purchase money, and, in proof thereof, she exhibits with her answer, and will prove it when it shall be necessary to do so, the receipt of the said Elizabeth to her, bearing date the 12th day of September, 1856, whereby she acknowledged the payment to her, said Elizabeth, of the sum of five thousand eight hundred and fifty dollars in full of respondent's purchase of house and lot of her, sold on the 21st March, 1856,'-she cannot state when, where, or how, the said purchase money was paid and satisfied to said Elizabeth Braiden,'-'she cannot state positively, of her own knowledge, that any sums of money were paid to her,' and contends 'that it is not material whether or not the whole amount of the sum of $6,000 was paid said Elizabeth, if she voluntarily gave a receipt in full.' In this answer she relies on the receipt entirely, not stating any specific amount as having been paid. She denied the allegation of the bill, that her separate estate had no real existence, but failed to answer the interrogatories propounded mainly for the purpose of showing that she could not have paid for the property from her separate estate. Exceptions being filed, the Court required her to answer the interrogatories. In her amended answer, she says some payments were made, but she does not know how much, 'the whole matter being conducted by her husband, who held her separate estate.' She again set up the receipt as an absolute defense. In answer to interrogatories she declared that she did not know how much was paid by her husband. The husband also answered, and so did the trustee. The plaintiff filed the general replication. The cause was set for hearing. The controversy was, whether or not the purchase money had been satisfied and discharged, which necessarily involved the genuineness of the receipt.

The Court directed issues to be made up and tried before a jury on the law side of the Court. A jury was duly impanneled, and found for the plaintiff that the receipt set up was not the genuine receipt of Elizabeth Braiden.

The cause coming on for final hearing, the Court passed a decree that all the purchase money was due and ordered a sale of the property for the payment of it. The case came before this Court on an appeal from that decree.

Mr. Carlisle, of Washington City, for Appellants.

Mr. Stone, and Mr. Bradley, of Washington City, for Appellee.

Mr. Justice GRIER.

title: Chilton v. Braiden's Administratrix


text: Talk:Chilton v. Braiden's Administratrix

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


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Chilton v. Braiden's Administratrix/Opinion of the Court

When one person has got the estate of another, he ought not, in conscience, to be allowed to keep it without paying the consideration. It is on this principle that Courts of Equity proceed as between vendor and vendee. The purchase money is treated as a lien on the land sold, where the vendor has taken no separate security. In the present case this lien has not been defeated by alienation to a bona fide purchaser, or any subsequent lien of creditors. The issue taken in the answer concerning the respondents' ability to pay out of her separate estate is wholly immaterial except to give probability to the allegation that she had paid the consideration. The only defense taken in the answer to the claim of the bill is an alleged receipt in full or discharge for the purchase money.

The deed does not acknowledge the payment of the consideration, and the answer admits that no consideration was paid at the time of its delivery. The issue between the parties turned wholly on the genuineness of a receipt or discharge purporting to have been executed and delivered by Elizabeth Braiden on the 12th of September, 1856. The Court ordered an issue to try this question at law, and the jury found 'That Elizabeth Braiden did not execute and deliver said receipt or discharge, and that it was not the genuine receipt of said Elizabeth Braiden.' The Court, in the exercise of their discretion, refused to grant a new trial of this issue. As it appears to us that the evidence justified the verdict, we see no error in the decree of the Court. It did not condemn the defendant to pay the consideration out of her separate estate, but orders the houses to be sold to pay the purchase money, unless before a certain time the defendant shall pay the amount due.

Neither the answer of the party, nor the argument of counsel, allege any good reason, why a married woman should be permitted to take property without paying for it, more than another. The disabilities thrown round her by the law, are for her protection not to enable her to commit fraud.

Decree affirmed, with costs.


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text: Curtis's Administratrix v. Fiedler

title: Curtis's Administratrix v. Fiedler


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text: Talk:Curtis's Administratrix v. Fiedler

title: Talk:Curtis's Administratrix v. Fiedler


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Curtis's Administratrix v. Fiedler/Opinion of the Court

Error to the Circuit Court of United States for the Southern District of New York.

Ernest Fiedler, a merchant of New York, in September, 1842, imported into the port of New York, from St. Petersburgh, Russia, in the ship 'Nicholas Savin,' a quantity of unmanufactured hemp. He also imported at the same time, by the same vessel, a quantity of iron in bars.

The Tariff Act of August 30, 1842, which was in operation at the time of the importation, contained the following provision in respect to the duty to be levied on hemp: 'On manufactured hemp forth dollars per ton; on manilla, sunn, and other hemps of India, on jute sisal, grass, coir, and other vegetable substances, not enumerated, used for cordage, twenty-five dollars per ton.' Tariff Act of 1842, sec. 3, sub. 3.

Edward Curtis, at that time Collector of the Port of New York, treated this hemp as unmanufactured hemp and charged upon it a duty of $2,575.38, being at the rate of $40 per ton. The duties thus charged upon the iron amounted to the further sum of $848.56. The importer protested against the payment of the duties thus charged on the entire importation. The protest was in writing upon the margin of the entry, which embraced both the hemp and the iron, and was as follows: '''I hereby protest against the payment of the duty charged in this entry on account that there exists no law authorizing the exaction of said duty. Sept.'' 1, 1842.' No other protest against or objection to the payment of the duties was made by or on behalf of the plaintiff. The duties were paid to the collector, September 6, 1842, and by him paid into the Treasury of the United States.

The plaintiff afterwards, in November, 1847, brought the action of assumpsit to recover the difference between the amount of duties charged and paid on the hemp specified in the entry at the rate of $40 per ton and the amount calculated at the rate of $25 per ton, the difference claimed being $965.77. The defendant pleaded non assumpsit.

At the trial, before Mr. Justice Nelson and a jury, the above facts were proved, and the plaintiff claimed that under articles 6 and 11, of the Treaty between the United States and Russia, of December 6th and 18th, 1832, the exaction of any duty on the hemp in question beyond $25 per ton was unauthorized and illegal. The Articles of the Treaty thus relied on, are as follows: 'Article 6. No higher or other duties shall be imposed on the importation into the United States of any article, the produce or manufacture of Russia; and no higher or other duties shall be imposed on the importation into the Empire of Russia, of any article the produce or manufacture of the United States, than are, or shall be payable on the like article, being the produce or manufacture of any other foreign country. Nor shall any prohibition be imposed on the importation or exportation of any article, the produce or manufacture of the United States or of Russia, to or from the ports of the United States, or to or from the ports of the Russian Empire, which shall not equally extend to all other nations.'

'Article 11. If either party shall, hereafter, grant to any other nation, any particular favor in navigation or commerce, it shall immediately become common to the other party, freely, where it is freely granted to such other nation, or on yielding the same compensation, when the grant is conditional.'

The plaintiff grounded his right to recover on this: that the Treaty with Russia fixed the duties on hemp imported from that country at the rates imposed on the same articles from any other country, and inasmuch as the tariff of 1842 imposed only $25 per ton on India hemp, no higher duty could be legally charged on Russian hemp.

The plaintiff called witnesses to prove that Russian and Manilla hemps are known in trade and commerce as 'hemp,' and serve substantially the same purposes, being all used in the manufacture of cordage, &c. On the part of defendant it was proved and admitted by plaintiff's counsel, that all the hemps of India are the products, not of the cannabis sativa, the ordinary hemp plants of Russia and the United States, but of other and different plants and trees.

The defendant asked the Court to instruct the jury as follows:

First. That the present action of assumpsit cannot be maintained inasmuch as by the 2d section of the General Appropriation Act of the 3d of March, 1839, which was in force at the time of the receipt of said moneys by the defendant, he was required to pay, and did pay, such moneys into the Treasury of the United States, and that the Act of Congress of the 26th of February, 1845, cannot operate, nor should it be construed to operate, retroactively, to subject defendant in his individual capacity to such action.

Secondly. That the present action cannot be maintained, inasmuch as defendant acted in precise conformity to the Tariff Act of August 30th, 1842, by which a duty of $40 per ton was laid on all manufactured hemps (except the hemps of India); that as between the defendant as collector and plaintiff as importer, the amount of duties to be paid was conclusively fixed by the said Act of Congress. That the question whether or not the discrimination made by the said Act of August 30th, 1842, between the hemps of India and other unmanufactured hemp, was, in respect to Russian hemp, an infraction of the treaty previously made with Russia, was exclusively a question to be discussed and settled by and between the Government of Russia and the Government of the United States, and that in a private action between the importer and the defendant, it was not competent for the plaintiff to raise, nor for the judicial tribunals to decide, any such question.

Thirdly. That the present action could not be maintained, because the protest of the plaintiff, dated September 1st, 1842, did not refer to the treaty with Russia, nor set forth distinctly and specifically any ground of objection to the payment of the moneys, or any part thereof, charged by the defendant for duties on the hemp in question, nor did it discriminate between the duties so charged on such hemp and the duties charged on the iron included in the entry; but, on the contrary, the said protest referred to all the duties charged in the said entry-those charged on the iron equally with those charged on the hemp, and placed the objection to the payment thereof on the ground that there was no law authorizing their exaction.

Fourthly. That upon the true construction of the Tariff Act of the 30th of August, 1842, all hemps, wherever produced, and even though produced in India, which are the products of the cannabis sativa, are charged with a duty of $40 per ton, and the lesser duty of $25 per ton is limited to hemps not the products of cannabis sativa, but of other and different plants or trees; and that therefore the discrimination made in favor of such hemps of India was not an infraction of the Treaty with Russia.

The Court refused to give the instructions so requested by the defendant, but directed the jury, that if they found from the evidence that the hemps of India were, at the time of the passage of the Tariff Act of 1842, generally known in trade and commerce as unmanufactured hemps, the plaintiff was entitled to a verdict for the amount claimed by him; and in accordance with that view the verdict was rendered and judgment given. The defendant took this writ of error.

Mr. Butler, of New York, and Mr. Coffey, of Pennsylvania, for Plaintiff in Error.

These actions of assumpsit cannot be maintained, even were it admitted that the moneys sought to be recovered were illegally exacted by the defendants as duties on the hemp in question.

1. When such moneys were received by the defendants, they were bound by the Act of 3d March, 1839, to pay them into the treasury, and did so pay them; and if liable to any action for the recovery thereof, they were not liable to an action of assumpsit for that purpose. 5 U.S. Statutes at Large, 348, sec. 2; Cary vs. Curtis, (3 Howard, 236).

2. The Act of the 26th of February, 1845, (5 U.S. Statutes at Large, 727,) should not be construed to operate, and cannot operate retroactively, to subject the defendants in their individual capacity to an action to which they were not before liable.

But if it be conceded that the Act of the 26th of February, 1845, (5 Stat., 727,) restores the right of persons who have paid money to collectors for duties under protest, to bring suit against the collectors to test the legality of such payments, which right had been taken away by the Act of 3d March, 1839, (5 Stat., 348, sec. 2,) and the ruling of the Supreme Court in Cary vs. Curtis, (3 How., 236,) a fatal objection to these actions still exists. In restoring this right of action, the Act of 1845 subjected it to this condition: 'Nor shall any action be maintained against any collector to recover the amount of duties so paid under protest, unless the said protest was made in writing, and signed by the claimant, at or before the payment of said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof.' It is now said by the defendant in error, in Curtis vs. Fiedler, that this law was not in existence when the duties in that case were paid, and that, therefore, it cannot have a retroactive effect to require the protest to conform to its terms. But the plain and perfect answer to this objection is, that by virtue of the Act of 3d March, 1839, the defendant in error had no right of action at all against the collector at the time he paid the duties and made his protest, in September, 1842. The opinion of the Court in Cary vs. Curtis established the validity of that act, and showed that it utterly destroyed the right to recover in assumpsit against the collector for duties paid under protest, (the form of remedy adopted in this case.) His right of action was therefore entirely created by the retroactive operation of the Act of 26th February, 1845, which declared that nothing in the Act of 1839 should be construed to take away or impair the right of any person or persons who have paid, or shall hereafter pay money for duties under protest to any collector, &c., to maintain any action at law against such collector, &c. And in the same section is contained the clause above quoted, declaring that no action shall be maintained, &c., unless the said protest was made in writing. Surely the condition which is thus appended to the right of action is as operative as the clause which confers that right. The right depends on compliance with the condition; and if the protest of the defendant in error did not happen to conform to the requirements of the condition, the no right of action was given to him. If he has any remedy at all, it is that provided by the Act of 1845, and that was given him only on condition that his protest was made in accordance with its terms. He cannot invoke the retroactive remedy, and discard the retroactive condition on which it is given.

If, therefore, the protest made by the defendant in error, when he paid the duties, was not in substantial accordance with the terms of the Act of 1845, the Court below erred in overruling the third point of the plaintiff in error, and in allowing the action to be maintained.

The custom-house entry of merchandise, on which the protest was written, embraces a charge for 1,835 bars of iron, hammered. and for 50 and 15 bundles of hemp, no discrimination being made as to the class of duties protested against.

The ground of objection to the payment of the duties upon which this action is attempted to be sustained, is, that as the treaty with Russia of December, 1818, stipulates that no higher rate of duties shall be imposed on goods imported from Russia than on like articles imported from other places, the duty rate of $40 per ton imposed by the Tariff Act of August 30, 1842, on unmanufactured hemp, should not have been charged on the hemp imported by the plaintiff, Fiedler, and described in the entry of the 1st of September, 1842, but the duty rate of $25 per ton, imposed by the same Tariff Act on manilla, sunn, and other hemps of India, &c., should have been charged on it, and that the plaintiff has a right to avail himself in this action of that provision of the Russian treaty, to recover the amount of duties thus illegally paid.

It is contended that under the protest filed, it was not competent for the plaintiff below to raise this question, and that the Court below erred in overruling the third point of the defendant below, and in entering judgment for the plaintiff.

The requisites of the protest prescribed by the Act of 26th February, 1845, as above cited, as a condition of the maintenance of an action against a collector to recover duties paid under such protest, are, that the protest shall be 'made in writing, and signed by the claimant, at or before the payment of said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof.'

The object of Congress in requiring not only the objection, but the grounds of objection, to be distinctly and specifically set forth, has been fully explained by the Courts of the United States; and the numerous cases in which the sufficiency of protests under this Act have been examined by the Judges of this Court, show beyond question that the protest in this case is fatally defective.

Mason vs. Kane, Maryland Circuit Court, April Term, 1851, cited 2 Blatchford C. C. R., 390); Warren vs. Peaslee, (2 Curt. C. C. R., 235); Kriesler vs. Morton, (1 Curt. C. C. R., 413); Norcross vs. Greely, (1 Curt. C. C. R., 114); Swanston vs. Morton, (1 Curt. C. C. R., 294); Burgess vs. Converse, (2 Curt. C. C. R., 294); Same case, (18 How., 413); Thompson vs. Maxwell, (2 Blatch. C. C. R., 385); Pierson vs. Lawrence, (2 Blatch. C. C. R., 495); Pierson vs. Maxwell, (2 Blatch. C. C. R., 507); Focke vs. Lawrence, (2 Blatch. C. C. R., 508); Cornett vs. Lawrence, (2 Blatch. C. C. R., 512); Wilson vs. Lawrence, (2 Blatch. C. C. R., 514); Tucker vs. Maxwell, (2 Blatch. C. C. R., 517).

Tested by the rules applied in these cases, the protest filed by Fiedler is insufficient to maintain this action. The only objection set forth is that 'there exists no law authorizing the exaction of said duty.'

The entry on which the protest is written contains a charge for duty on hammered bars of iron, and charges on bundles of hemp. The protest fails to state whether the objection to the payment of duties applies to that charged on the iron, or to that charged on the hemp, or to both. It is said in Warren vs. Peaslee, (2 Curt. C. C. R., 235,) that 'the grounds of the objection to the particular payment sought to be recovered back, must be, not only distinctly, but specifically set forth, and that it must be applied to that particular payment.' It is impossible that the collector could learn from this protest what particular payment of the duties charged on the entry was objected to, whether to that charged on all or on a part of the entries enumerated. It is true that the protest is broad enough to cover all, and it is true, as the plaintiff's counsel argue, 'that the whole includes a part.' But it is precisely that vague generality which the act meant to prohibit. The protest, as is said in Thompson vs. Maxwell, must, 'by positive and direct notice, point out every particular of fact and law;' and as is said in Swanson vs. Morton, 'must show distinctly what is objected to.' If the object of the law to be give notice to the collector of the specific objection, so that, if possible, he may remove its cause, and also to confine the protestant on the trial, to the ground of objection set forth in his protest, then this protest fails in both particulars, for it does not inform the collector where the illegality is, and, of course, is not in such form as to limit the importer, on the trial, to any specific ground, since he may then apply his objection either to the charges on the iron, or to the charges on the hemp, at his pleasure.

The protest is also defective in this, that it covers the whole duty and not the excess on the hemp, of which complaint is now made. The duty charged on the hemp it $40 per ton, and the plaintiff below admits that $25 per ton was legally due, and yet his protest 'against the payment of the duty charged in this entry,' instead of informing the collector that the objection was to the payment of the duty in excess of $25 per ton, gave him notice in effect that the objection was to the payment of any duty. It should have specified the part of the duty against which he now objects, viz.: the difference between $25 per ton and $40 per ton on the hemp. The objection taken in the Court below to the payment of this part of the duty is, therefore, in this respect substantially different from that taken in the protest.

The protest is especially defective in this, that it sets forth no ground of objection at all. The objection that 'no law exists to authorize the exaction of the duty,' gives no distinct or specific information, or rather no information whatever of the ground on which the payment of the duties is opposed, It is a form in which any objection to the payment of duties may be clothed, since in every case the ground of recovering duties paid must be, that no law authorized their exaction. It is broad enough to afford a cover for any question that may be raised to the validity of the tariff laws, or the regularity of the proceedings of the custom-house officers; and neither furnishes the collector with knowledge of the alleged wrong, so that, if possible, he may remedy it; nor with the means of restraining the protestant from selecting, on the trial, any particular ground of objection which subsequent information or reflection may suggest. On such a protest the collector is necessarily ignorant of the wrong complained of, and of the issue which he is to meet on the trial. To sustain this protest would, it is suggested, to be abrogate the statute and overrule all the cases that have been cited.

Mr. Cushing, of Massachusetts, and Mr. Gillet, of the District of Columbia, contra.

The Act of March 3d, 1839, requiring collectors receiving money under protest, to pay the same into the Treasury, does not bar the right of recovery in this case.

On the trial, the defendant requested the Court to charge that the action could not be maintained, 'inasmuch as, by the 2d section of the General Appropriation Act of March, 1839, which was in force at the time of the receipt of said moneys by the defendant, he was required, and did pay such moneys into the Treasury of the United States, and that the Act of Congress of the 26th of February, 1845, cannot operate, nor should it be construed to operate, retrospectively, to subject said defendant in his individual capacity to such action.' The Judge refused to give this instruction, and the defendant excepted. (R., p. 14.)

This presents the question, whether the Act of 1839, deprived the plaintiff of his right of action, and continued to do so.

The provision referred to will be found in 5 U.S. L., 348, § 2.

In the case of Cary vs. Curtis, (3 H., 236), it was held that the provision cited above, protected the collectors from prosecution in cases where they had exacted an excess of duties, and paid the same into the Treasury. Congress being in session when this decision was made, the Act of February 26th, 1845, (5 U.S. L., 727), was passed to remove the obstacle in the way of recovering in such cases, where the importer had been wronged. The Act provided: 'that nothing contained in the 2d section of the Act of 1839 shall take away, or be construed to take away, or impair, the right of any person or persons who have paid or shall hereafter pay money, as and for duties under protest, to any collector of the customs, or other persons acting as such, in order to obtain goods, wares, or merchandise imported by him or them, or on his or their account, which duties are not authorized, or payable in part or in whole by law, to maintain any action at law against such collector, or other person acting as such, to ascertain and try the legality and validity of such demand and payment of duties, and to have a right to a trial by jury touching the same, according to the due course of law; nor shall anything contained in the 2d Section of the Act aforesaid be construed to authorize the Secretary of the Treasury to refund any duties paid under protest; nor shall any action be maintained against any collector to recover the amount of duties so paid under protest, unless the said protest was made in writing and signed by the claimant, at or before the payment of said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof.'

Although the Act of 1839 was held to prevent a recovery, the above Act of 1845 removed the obstacle, and was designed to permit suits for previous exactions. Had not this been so, those previously paying excess of duties would have been remediless, because this Act of 1845 prohibits refunding by the Secretary under the Act of 1839. The object of the Act was not to deprive the party of a remedy, but to confer one in entire harmony with the provision of the Constitution in relation to jury trials. Although at the time of this transaction the plaintiff was prohibited from suing, the prohibition was removed, and it became lawful in 1845.

The protest served was sufficient in form, and the collector was bound to take notice of the law protecting the rights of the importer, without its being specified in the protest.

On the trial, the defendant's counsel requested the Court to charge, 'that the present action could not be maintained, because the protest of the plaintiff, dated September 1, 1842, did not refer to the treaty with Russia, nor set forth distinctly and specifically any ground of objection to the payment of the moneys, or any part thereof, charged by the defendant for duties on the hemp in question; nor did it discriminate between the duties so charged on such hemp, and the duties charged on the order included in the entry, to which said protest was attached; but, on the contrary, the said protest referred to the duties charged in the said entry those charged on the iron, equally with those charged on the hemp placed the objection to the payment thereof on the ground that there was no law authorizing their exaction.' The Judge refused to give this instruction, and exception was taken.

At the time of paying the excess of duties now claimed, the plaintiff made a protest in writing, broad enough to cover his case, which was endorsed on the entry in these words: 'I hereby protest against the payment of the duty charged in this entry, on account that there exists no law authorizing the exaction of said duty.'

The defendant now seeks to escape liability, upon the ground that the duties on the iron, and a portion of those charged on the hemp, were authorized by law. His theory is, that the whole does not include a part. Until he demonstrates this, the common axiom must be respected which establishes the opposite conclusion. The protest, although broad enough to cover the duty on the iron, the plaintiff did not seek to apply to that article. To that extent there is no fact proved in the case to which it is applicable.

But as to the hemp on which the defendant charged forty per cent., the protest does apply. The plaintiff claimed that there was no law authorizing that duty. If he was bound to specify the objection, he did so most fully.

But prior to 1845, there was no law requiring the protest to be made in writing, or to specify the objections. The necessity of written protests and specific objections led to the provision in the Act of that date, (5 U.S. L., 727,) which provides:

'Nor shall any action be maintained against any collector, to recover the amount of duties so paid under protest, unless the said protest was made in writing and signed by the claimant, at or before the payment of the said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof.' This was the first law which required the protest to be in writing, and to specify the particular objection to the payment required.

But this Act cannot be construed to have a retroactive effect, so as to deprive a claimant of a lawful right existing at the time of its passage. This right of the claimant became fixed before the act passed, and he was legally entitled to have his money refunded.

The Act of 1839 was the only obstacle in the way of recovery, and that was removed. To hold that the Act of 1845 required a protest in writing, and of a special character, which was not requisite when the excess of duties was demanded, and could not then be supplied, while it repelled the power of the Secretary of the Treasury to give relief, would be to declare that the claimant was deprived of all possible remedy, when the avowed object of the Act was to confer one of a popular character. Congress had no power thus to devote private property to public use, and deprive the party of all possible means of indemnity. Such was not the intention of Congress, and no such construction can be put upon the Act.

But even under this provision of the Act of 1845, the protest was sufficient. It was made in writing and at the time of paying the duties. It states that there was no law authorizing the collector to demand duties at the rate upon which he insisted-that is, $40 per ton. The question was upon that high rate. The collector demanded it, and the importer objected to paying it. The Act of 1845 did not require the importer to state how much he thought the law authorized the collector to demand. He resisted the exaction of $40 per ton, and the collector insisted upon it, and that was the matter in dispute, and the protest was prepared to meet it.

There was no question of fact involved, to which the importer was bound to call the collection's attention, so that he might examine it and determine it. The question was one of law-to wit: what was the lawful duty upon the hemps of India? The collector was bound to know the law, whether found in the Constitution, a treaty, or statute. He did not need to have his attention specially called to the law. He decided it by declaring, as a matter of law, that the hemps of India were not hemps under the law, and therefore, that the hemps of Russia were not entitled to admission at the rates established for hemps of India; or, he may have decided that the act of Congress repealed or nullified the provision of the treaty. In either event the protest was sufficient. The objection is too technical to be permitted to deprive the party of a legal right which has been conceded to others where no such formalities as a protest are shown.

If the protest required by the Act of 1845 includes and extends to those previously made, it is confidently insisted that the one in question was sufficient.

Mr. Justice CLIFFORD.

This is a writ of error to the Circuit Court of the United States for the Southern District of New York. According to the transcript, the suit was commenced by the present defendant against Edward Curtis, in the Superior Court of the City of New York, to recover back an alleged excess of duties paid by the plaintiff upon certain goods and merchandize imported into the Port of New York during the period that the defendant in the Court below was the Collector of the Customs of that port. Date of the writ does not appear, nor is it of any importance in this investigation, as the record of the suit was on the 1st day of February, 1847, duly transferred under the 3d section of the Act of the 2d of March, 1833, into the Circuit Court of the United States, where all the proceedings in the suit took place, which are now the subject of revision. 4 Stat. at Large, p. 633. Suit was upon promises, and the declaration contained the common counts as in indebitatus assumpsit. Subsequently to the transfer of the record, the defendant, then in full life, appeared and pleaded that he never promised in manner and form as the plaintiff had alleged against him, and upon that issue the parties at the April Term, 1849, were to trial. To maintain the issue on his part, the plaintiff produced and gave in evidence an original entry made by him at the custom-house in the Port of New York on the 1st day of September, 1842, of certain goods and merchandize imported into that port from St. Petersburg, in Russia, in the Russian ship Nicholay Savin, and which goods and merchandize were duly consigned to the plaintiff by the shipper and owner. Three packages were specified in the entry, of which two consisted of hemp in bundles, and the other of iron in bars, hammered. As described in the entry, one of the packages of hemp contained fifty bundles and the other fifteen, and the package of iron contained eighteen hundred and thirty-five bars.

Unmanufactured hemp by the Act of the 30th of August, 1842, was subject to a duty of $40 per ton, but manilla, sunn, and other hemps of India were subject to a duty of only $25 per ton. These provisions of the Tariff Act under consideration are plain and clear, and by reference to the 4th section of the act it will be seen that iron in bars or bolts, not manufactured in whole or in part, was subject to a duty of $17 per ton. 5 Stat. at Large, pp. 550, 551.

Parties admitted at the trial that the defendant was the Collector of the Port of New York at the time the entry was made, and that he, as such collector, pursuant to the instructions of the Department, charged on the hemp included in the entry duty of $40 per ton, under the before-mentioned Act of Congress. They also admitted that the duties on the hemp as charged by the collector amounted to $2,575.38, and that the duties charged at the same time on the iron included in the entry amounted to $848.56, making an aggregate charge for duties on the whole importation of $3,423.94. Demand of that amount as the proper charge for the duties on the importation was made by the defendant on the day of the entry, and the plaintiff on the same day protested against the payment of the same in writing, as appears on the margin of the entry in the words following, to wit: 'I hereby protest against the payment of the duty charged in this entry on account that there exists no law authorizing the exaction of said duty.' But the whole sum, notwithstanding the protest, was exacted by the defendant, and the plaintiff accordingly, on the 6th day of the same month, paid the amount charged, and on the same day the defendant paid the same into the Treasury of the United States. Plaintiff insisted at the trial that by virtue of the 6th and 7th articles of the Treaty between the United States and Russia the hemp included in the entry could only be charged with the same duty as that imposed in the Tariff Act on the hemps of India, because the articles of the treaty referred to stipulate in effect that no higher duty shall be imposed on the produce of Russia imported here than is imposed on the like articles of produce imported from the most favored nations. 8 Stat. at Large, 446.

Evidence was accordingly introduced by the plaintiff tending to show that both the Russian hemp and the hemps of India are known in trade and commerce as hemp, and that both are used in the manufacture of cordage, and serve substantially the same purposes. On the other hand, the defendant proved, or it was admitted, that all the hemps of India are the products not of the cannabis sativa, the ordinary hemp plants of Russia and the United States, but of other and different plants and trees, and upon the exhibition of the foregoing proofs both parties rested.

Defendant controverted the position assumed by the plaintiff that the rate of duty could not exceed that imposed by law on the hemps of India, and also insisted that the action could not be maintained against him because the protest of the plaintiff did not set forth any distinct and specific ground of objection to the payment of the duties charged on the hemp, and certainly did not set forth distinctly and specifically any such ground of objection to the payment of the same as that assumed by the plaintiff, or in any manner discriminate between the duties charged on the hemp and the duties charged on the iron included in the same entry, but placed the objection to the payment of the moneys solely on the general ground that there was no law authorizing the exaction.

Prayers for instructions were presented by the defendant, affirming that the hemp was legally chargeable with a duty of $40 per ton, and also embodying the substance of the foregoing objections to the right of the plaintiff to maintain the action, but the presiding justice concurring with the plaintiff upon the merits, refused the requests, and, among other things, instructed the jury that the action might be maintained, although it was an action of assumpsit for the recovery of moneys received by the defendant for duties paid under protest while the Act of the 3d of March, 1839, was in force, and before the Act of the 26th of February, 1845, was passed, and that the protest in writing of the plaintiff was sufficiently precise and distinct to enable the plaintiff to recover back any portion of the moneys paid for duties on the hemp included in the entry which should appear to have been illegally exacted. Under the instructions of the Court the jury returned their verdict in favor of the plaintiff, and the defendant excepted to the refusal of the Court to instruct the jury as requested and to the instructions given. Judgment was deferred in consequence of a motion for new trial and other proceedings, which need not be noticed until the 17th day of December, 1860, and in the meantime the defendant died, and the administratrix of his estate was admitted to defend.

Three questions arise on this state of the case for the consideration of the Court. First, whether, under the second section of the Act of the 3d of March, 1839, an action of assumpsit on an implied promise can be maintained against a collector of the customs to recover back duties exacted by him in his official capacity after he had received the moneys and paid the same into the Treasury of the United States and if not, then secondly, whether the objection taken at the trial to the payment of the duties was set forth in the protest with sufficient precision and distinctness to bring the case within the provisions of the Act of the 26th of February, 1845, authorizing such a suit in cases where the protest is made in writing and sets forth distinctly and specifically the grounds of objection to the payment. 5 Stat. at Large, 727. Thirdly, whether the legal rate of duty upon the hemp included in the entry was the sum exacted by the collector or only $25 per ton as assumed by the plaintiff.

I. Recurring to the second section of the Act of the 3d of March, 1839, it will be seen that it provides in effect that the money paid to any collector of the customs after the passage of that Act for unascertained duties, or for duties paid under protest against the rate of amount of duties charged, shall be placed to the credit of the Treasury of the United States, to be kept and disposed of as all other money paid for duties; and it expressly provides that such money 'shall not be held by the collector to await any ascertainment of duties or the result of any litigation in relation to the rate or amount of duty legally chargeable and collectable in any case where money is so paid.' 5 Stat. at Large, 348.

Prior to the passage of that act, it had frequently been held that an action of assumpsit would lie against a collector to recover back duties illegally exacted by him of the importer; but this Court held in Cary vs. Curtis, (3 How., 236,) that the provisions of that section where the money had been paid into the Treasury of the United States were a bar to any such action to recover back duties paid subsequently to the passage of that act. Some of the judges dissented on the occasion, but the concluding portion of the opinion given by the Court rests, it is believed, upon the solid foundations of reason and justice. Indebitatus assumpsit is founded upon what the law terms an implied promise on the part of the defendant to pay what in good conscience he is bound to pay to the plaintiff. Where the case shows that it is the duty of the defendant to pay, the law imputes to him a promise to fulfil that obligation. Such a promise, say the Court, is always charged in the declaration, and must be so charged in order to maintain the action. But the law never implies a promise to pay unless some duty creates such an obligation, and more especially it never implies a promise to do an act contrary to duty or contrary to law. Collectors under the act referred to were required to pay all moneys received for unascertained duties or for duties paid under protest into the Treasury of the United States, and consequently this Court held that in a case arising under that law, where that duty had been performed by the collector, the law would not imply a promise on his part to pay the same back to the importer, because he was under no obligation to pay the money twice, and to have paid the same back to the importer in the first place would have been contrary to his official duty as prescribed by an Act of Congress. Applying that rule to the present case, it is quite obvious that the answer to the first question presented must be in the negative. Importers, however were not without remedy under that Act but whenever it was shown to the satisfaction of the Secretary of the Treasury that more money had been paid to the collector for such duties than the law required, it was made his duty to draw his warrant upon the Treasurer to refund the over payment.

II. Congress, on the 26th of February, 1845, gave a different construction to that provision, and provided in effect that 'any person or persons who have paid or may hereafter pay money' under protest, as and for duties not authorized by law, to any collector of the customs in order to obtain the goods or merchandize imported by him, may maintain an action at law against such collector to ascertain and try the legality and validity of such demand and payment, but the same section also provides to the effect that no such action shall 'be maintained against any collector to recover the amount of duties so paid under protest unless the said protest was made in writing * *  * setting forth distinctly and specifically the grounds of the objection of the payment thereof. When the duties in this case were paid the provision just recited was not in existence, and it is insisted by the plaintiff that it cannot have a retroactive effect so as to require the protest of the plaintiff to conform to its terms; but if that be so, then it is clear that the defendant must prevail in the suit, as the plaintiff has no right of action what ever against the defendant unless it be by virtue of that provision. His importation was made while the Act of the 3d of March, 1839, was in operation, and when he paid the duties in question, importers in such cases, according to the decision of this Court, had no right of action whatever against the collector of the customs. Those who had no right of action under the old law cannot rightfully complain of the terms and conditions annexed to the remedy given in the subsequent Act of Congress. All such as have claims falling within it have a right to avail themselves of its provisions, because the right of action given is in its nature a remedy against the Government, but they must accept it as such with its conditions.

Protests according to that law must be made in writing, and must be signed by the claimant at or before the payment of the duties, setting forth distinctly and specifically the grounds of the objection to the payment as before stated. Parties who have made such protests upon the payment of duties were placed upon the same footing with those who should thereafter make such protests, and all such were authorized to seek their remedy in an action at law against the collector as the representative of the Government, but it cannot for a moment be admitted that a party can have the benefit of an Act of Congress unless he shows that his case is within its provisions. No allusion whatever is made in the protest to any such ground of objection to the payment of the duties as that taken at the trial, nor any other except the general objection already stated. Unless the grounds of objection to the payment of the duties are distinctly and specifically set forth in the protest it is plain that it cannot be held to be sufficient without a departure from the express requirement of the Act of Congress under which the suit was brought.

Iron in bars, as well as hemp in bundles, is included in the entry, and yet the protest is 'against the payment of the duty charged in the entry' without any discrimination as to the packages, and consequently applying as well to the iron as to the hemp, and to the whole amount of the duties charged upon the entire importation. No pretence is now made that the duty charged upon the iron was illegal or excessive, and the plaintiff concedes that the hemp was subject to a duty of $25 per ton. Irrespective of authorities, therefore, it is impossible to hold that the protest in this case is sufficiently distinct and specific to admit the objection to the payment set up at the trial. Numerous decisions have been made upon the subject, but there is not one of them that affords the slightest support to the position that the protest in this case constitutes a compliance with the requirement of the Act of Congress. On the contrary, every one of them affirms the rule that the importer must at least indicate in his protest distinctly and definitely the source or ground of his complaint, and his design to make it the foundation of a claim against the Government. Greeley's Adm. vs. Burgess et al., (18 How., 417); Swanton vs. Morton, (1 Cur., C. C., 294); Warren vs. Peasler, (2 Cur., C. C., 235); Thompson vs. Maxwell, (2 Blatch. C. C., 391).

Persons importing merchandize are required to make their protests distinct and specific, to apprise the collectors of the customs of the nature of the objections made to the payment of the duties before it is too late to remove them or to modify the charge, and in order that the officers of the Government may know what they have to meet in case they decide to exact the duties, notwithstanding the objection, and expose the Government to the risk of litigation. For these reasons we are of the opinion that the second question presented for the consideration of the Court must also be answered in the negative, and consequently the plaintiff cannot recover in this case. Having come to that conclusion it is unnecessary to consider the question arising upon the merits. The judgment of the Circuit Court therefore is reversed with costs, and the cause remanded, with instructions to issue a new venire.


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Taylor v. Morton

This was a writ of error to the Circuit Court of the United States for the District of Massachusetts. It was like the case of Curtis vs. Fiedler, (supra), an action of assumpsit against a collector of customs for exacting excessive duties on an importation of hemp from Russia. The questions raised and argued in the Court below were the same as those presented to the Circuit Court of New York, in Curtis vs. Fiedler; but they were decided differently, the verdict and judgment in this case being in favor of the defendant, and it was the plaintiff who took this writ of error. It did not, however, appear from the record that the ruling of the Court, on any question of law, was objected to on the trial, and there was no bill of exceptions which made either the evidence or the instructions of the Court a part of the record.

The same counsel appeared in this cause and in the other, namely:

Mr. Cushing and Mr. Gillet, for the Plaintiff below; and

Mr. Coffey and Mr. Butler, for the Defendant below.

Both cases were argued together. But on the part of this defendant in error the counsel suggested that the writ of error ought to be dismissed, without considering the questions attempted to be raised by the other side.

Mr. Justice CLIFFORD.

title: Taylor v. Morton


text: Talk:Taylor v. Morton

title: Talk:Taylor v. Morton


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Taylor v. Morton/Opinion of the Court

This was an action of assumpsit, and the case comes before the Court upon a writ of error to the Circuit Court of the United States for the District of Massachusetts.

Suit was brought by the present plaintiffs against the defendant as the Collector of the Customs for the the Port of Boston and Charlestown, to recover back an alleged excess of duties exacted of the plaintiffs by the defendant on certain unmanufactured hemp imported by them from Russia in 1846. According to the transcript, the action was entered at the May Term, 1847, and was thence continued from term to term to the May Term, 1854, when the parties went to trial upon the general issue. Duties charged on the hemp were $40 per ton, whereas it was insisted by the plaintiffs that the charge should have been but $25 per ton, because by the 6th and 7th articles of the Treaty between the United States and Russia, it is stipulated to the effect that no higher rate of duty shall be imposed on importations from Russia than on like articles from the most favored nations, and by the Tariff Act of the 30th of August, 1842, the duty imposed on manilla, sunn, and other hemps of India, was but $25 per ton. Evidence was introduced on both sides, but the record states that when the evidence was all in, it was agreed that the case should be taken from the jury and submitted to the Court, with authority to draw all such inferences of fact as a jury would be authorized to draw from the evidence, and that a verdict should be entered and judgment should be rendered for the plaintiffs or defendant, as the Court should think proper upon the law and the evidence.

Accordingly a report of the case was made and signed by the counsel of the respective parties. Whether the parties were ever heard upon this report does not very satisfactorily appear, nor does it appear that any decision was ever made by the Court. On the contrary, the record subsequently states that the ad damnum of the writ, on motion of the plaintiff, was increased, by leave of Court, from $2,000 to $2,500; and it also states, among other things, that the case was submitted under instructions from the Court to a jury duly sworn to try the same, who thereupon returned their verdict that the defendant did not promise in manner and form as the plaintiffs have declared against him. Judgment was accordingly entered for the defendant, and the plaintiffs sued out this writ of error and removed the cause into this Court. They did not, however, except to the instructions of the Court, and there is no bill of exceptions in the record, nor is there any assignment of errors of any kind. All that appears is the before-mentioned statement that the case was submitted to the jury under instructions from the Court, but the instructions are not given, and there is no error apparent on the face of the record.

1. When a suit is brought into this Court by a writ of error from a State Court under the 25th section of the judiciary act it must appear on the face of the record in order to maintain the jurisdiction, that some one of the questions stated in that section did arise in the State Court, and that the question so appearing was decided in the State Court, as required in the same section; and if it does not so appear on the record then this Court has no jurisdiction to affirm or reverse, and the writ of error must be dismissed.

2. But the writ of error in this case was sued out under the 22d section of the juriciary act, which provides in effect that final judgments in a Circuit Court, brought there by original process, may be re-examined and reversed or affirmed in this Court upon a writ of error. Consequently, when a cause is brought into this Court upon a writ of error, sued out under that section, and all the proceedings are regular and correct, it follows from the express words of the section that the judgment of the Court below must be affirmed, although there is no question presented in the record for revision. Minor et al. vs. Tellotson, (1 Howard, 287); Stevens vs. Gladding, (19 Howard, 64); Suydam vs. Williamson et al., (20 Howard, p. 440).

The judgment of the Circuit Court, therefore, is affirmed with costs.

title: Taylor v. Morton/Opinion of the Court


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Mississippi and Missouri Railroad Company v. Ward

Appeal from the District Court of the United States for the District of Iowa.

On the 7th of May, 1858, James Ward filed his bill in the District Court, praying for an abatement of the Rock Island Bridge over the Mississippi river, averring it to be a public nuisance, specially injurious to him as an owner and navigator of steamboats to and from St. Louis, Missouri, to St. Paul, Min nesota. The bill alleged that the Mississippi river is a navigable stream, the boundary line, in whole or in part, of ten States; that it is used as a channel of commerce and navigated by boats, vessels, rafts, and flat-boats. That steamboats, with other craft in tow, require a space from 120 to 140 feet in width, and, where the bridge is, require the entire width of the river for transit, with at least 60 feet of clear space above for masts and chimneys. Lumber is one of the largest items of transportation, and, by reason of the winds and currents, rafts require the entire unobstructed bed of the river. The navigation of the river is a necessity of trade, and almost the only means of transportation between Wisconsin, Northern Iowa, Minnesota, and the upper Mississippi. The complainant is part owner of certain steamboats plying between St. Louis and St. Paul, and his profits depend upon the safety of the navigation. He avers that he has, by the treaties with France in 1803, the Acts of Congress, and the universal principle recognized by the common law, a right to the free and unobstructed navigation of the river, in all parts of it. He further asserts that the navigation has been interrupted, and rendered dangerous and difficult, by the erection of a bridge from Rock Island, in the State of Illinois, to Davenport, in the State of Iowa; that the river at that point is only about 1,300 feet wide; that it is at the lower end of the Rock Island Rapids, which Rapids are eighteen miles in extent above the bridge, with a fall of twenty-five or thirty feet in that distance; that the current is unusually rapid at that point and difficult of navigation, and that anything in the bed of the river greatly injures the safety of boats, especially in high winds. The bill sets out at length the manner in which the construction of the piers and abutments of the bridge has imperiled navigation and obstructed the stream. The complainant alleges special damage to his own boats, occasioned by the obstruction, the amount, in the instance of one boat, reaching a thousand dollars. Owing to the danger of navigation, he has been compelled to pay largely increased premiums for insurance, occasioned solely by the bridge. The bridge and obstructions were placed in the river by the Mississippi and Missouri Railroad Company, who are made defendants, with the aid and assistance of the Chicago and Rock Island Railroad Company, and a Bridge Company, created for the purpose of its erection by the State of Illinois, and by the aid of other persons, to the complainant unknown. The Mississippi and Missouri Railroad Company have been hitherto and still are maintaining the said bridge as their own possession, and for their own use and benefit. The said Company, by themselves, or in combination with the other companies named, (which are not within the jurisdiction of the Court,) are about to increase the obstruction in the river, by greatly enlarging the piers of teh bridge. The said bridge is a common nuisance now, and the increase of the size of the piers will increase the danger and obstruction, and further hinder and delay complainant's boats in their passage. From the number of disasters, the difficulty of procuring evidence, the expense of preparing for trial, and the peculiarity and diversity of the injuries sustained, suits at law would not compensate for the damage.

The prayer of complainant was: 'That on the final hearing of this bill, the Court will order, adjudge and decree, that said bridge was erected in violation of law, and is an obstruction to the navigation of said river, and that the same is a nuisance, and particularly to your orator, and that the said bridge, and the piers thereof, and all material used therein, which injures and obstructs the free navigation of said river, be abated and removed, and the said river be restored to its original capacity for all purposes of navigation.'

The defendant in his answer admits that the Mississippi is a channel of commerce, navigated by boats, vessels, &c., and that steamboats sometimes have barges in tow; but denies that they require the space alleged, and avers that the width of boats with their barges does not usually exceed seventy feet, so that the whole width of the river is not necessary to the safe transit of such boats. Denies that sail vessels ever navigate the river. Admits that the amount of lumber rafted down the river is great, but avers that rafts do not usually exceed seventy feet in width, while the piers of the bridge are two hundred and fifty feet apart.

Defendant neither admits or denies the ownership of said bridge, and avers that if it is so, the joint owners with defendant ought to be made parties defendant herein, and claims the same benefit as though objection had been taken by demurrer for want of proper parties herein; that he has no knowledge or information as to purpose for which said boats were built or the business of complainant; denies that complainant has the right as claimed in all parts of said river; and avers that the right to build a bridge is as sacred as the right of navigation, where no material obstruction is created, and denies that the treaties, Acts of Congress and principles of law prevent the construction of a bridge; denies that the navigation has been obstructed or rendered dangerous and difficult by the erection of a bridge, as alleged; that the water way is one thousand three hundred and twenty-two feet; that the current through the draw in high water is about five miles per hour; that in time of high winds boats were not accustomed to go over the rapids.

The answer describes the bridge minutely, and avers that since its completion in 1856, there have been more than one thousand seven hundred passages of steamboats through the draw, many of them with barges in tow, one with six barges. Defendant admits that the interruption in the flow of water caused by the bridge increases the current flowing past said bridge, but avers that such increase does not exceed the rate of one half mile per hour.

Defendant has no knowledge or information as to any injury to the steamboats of said complainant as alleged, but if either have been so injured they were out of the steamboat channel and negligently and improperly navigated and managed, as the current is straight and direct through the draw on the Illinois side of the draw pier, and if the boats had been put in their proper positions they would have passed through safely.

Defendant has no knowledge or information as to increased rates of insurance.

Admits that the defendant and the Railroad Bridge Company, a body corporate and politic, created by and existing under and within the State of Illinois, by an Act of the Legislature of the State of Illinois, jointly erected said bridge at the joint and equal cost of said compaines, and are the owners thereof, and that the same was permitted and authorized by the laws of the respective States of Iowa and Illinois, and that said parties are using the same as their joint possession and property, and not separated, and for the use and benefit of the passage of the trains of cars of this defendant and the Chicago and Rock Island Railroad Company; and this defendant insists that the said Railroad Bridge Company is a necessary party hereto, and that no decree granting relief as prayed in said bill can be given without materially affecting and destroying the property and interest of said Railroad Bridge Company, and defendant claims the same benefit for want of proper parties as though it had demurred thereto for that cause.

Defendant further alleges, that on the 11th day of June, in the year 1855, the said Railroad Bridge Company, with the assent of this defendant, conveyed by deed of trust or mortgage to Azariah C. Flagg the said railroad bridge and its appurtenances, to secure the payment of four hundred bonds of $1,000 each, made and issued by the said Railroad Bridge Company for the construction of said bridge, and that such deed of trust or mortgage was duly recorded in the Recorder's office of Rock Island County, in the State of Illinois, and in the office of the Recorder of Deeds, in Scott County, Iowa; that such deed for trust is outstanding and in full force; that a decree abating the bridge would entirely destroy the interest held by said Flagg under such mortgage, and this defendant says that said Flagg is a necessary and proper party to this suit, and that a decree as prayed for cannot be made without destroying the interest and property of said Azariah C. Flagg.

Defendant admits that it and the Railroad Bridge Company intended to repair pier No. 4 by adding four feet on one side and five feet on the other; this has been found necessary by reason of cracks in it and the danger of its yielding to the pressure of the ice at the breaking up of the river in the spring, the such structure has cost nearly $500,000 and would be in danger unless said repairs and addition to the pier were made. Defendant admits that it has built a railroad to Iowa City as charged, that the eastern terminus of said railroad is the eastern boundary of the State of Iowa as prescribed in its articles of association.

Defendant denies the increased obstruction or hindrance or delay and damage from the enlargement and repairs; and avers that complainant has an adequate remedy at law.

As to the refusal of persons to ship freight on complainant's boats by reason of the danger of passing the bridge, defendant does not believe it.

A large body of conflicting testimony was taken to establish the respective allegations of the bill and answer. After several preliminary hearings, the cause was submitted upon the bill, answer and evidence. The Court rendered a decree in favor of the complainant, and ordered that so much of the bridge as was in Iowa should be abated. From this decree defendant appealed to the Supreme Court of the United States.

Mr. Cook, of Illinois, and Mr. Reverdy Johnson, of Maryland, for appellants.

Mr. Lincoln, of Ohio, for Appellee.

Mr. Justice CATRON.


text: Talk:Mississippi and Missouri Railroad Company v. Ward


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Mississippi and Missouri Railroad Company v. Ward/Opinion of the Court

James Ward charges the Mississippi and Missouri Railroad Company with having created a nuisance by erecting a bridge across the Mississippi river at Rock Island, and prays that the nuisance may be abated.

The respondent resists the relief prayed, on the ground, among others, that the complainant does not stand in a position to maintain this suit.

Ward was part owner of three steamboats-and commander of one of them-navigating the river in successive trips between St. Louis and St. Paul; and which boats, the complainant alleges, were much injured and delayed by the bridge, which he avers is a great obstruction to navigation-amounting to a prominent nuisance. It is insisted that Ward cannot sue alone, and could only come before the Court jointly with the other part owners of the vessels injured and delayed. He seeks no damages by his bill, but only an abatement of the nuisance, as a preventive remedy against future injury and delay.

A bill in equity to abate a public nuisance, filed by one who has sustained special damages, has succeed to the former mode in England of an information in Chancery, prosecuted on behalf of the Crown, to abate or enjoin the nuisance as a preventive remedy. The private party sues rather as a public prosecutor than on his own account; and unless he shows that he has sustained, and is still sustaining, individual damage, he cannot be heard. He seeks redress of a continuing trespass and wrong against himself, and acts in behalf of all others, who are or may be injured; nor is there more necessity for joining with his partners in the prosecution than there is for his joining in the suit any other person, as complainant, who has sustained injury. Gibbons on Dilapidation, 402. The character of the nuisance and the sufficiency of the damage sustained is to be judged by the Courts. Iverson vs. Moore, (Ld. Ray, 486; 1 Salk., 15); Gibbons on Dilapidation, 403. But the want of a sufficient amount of damage having been sustained to give the Federal Courts jurisdiction, will not defeat the remedy, as the removal of the obstruction is the matter of controversy, and the value of the object must govern.

It is next objected that there are not proper defendants brought before the Court. The Chicago and Rock Island Railroad Company, who own the bridge on the Illinois side of the river, and the Bridge Company who built it, and also A. C. Flagg, who holds a mortgage on the bridge as trustee for others who advanced money to aid in its erection, are not made parties to the suit. The Chicago and Rock Island Railroad Company, and the Bridge Company, are incorporated, and located in the State of Illinois, and Flagg resides in the State of New York. The alleged nuisance is situate in Iowa, and being local, the suit could only be brought in that State; and, therefore, the Court had no power to bring these parties in interest before it.

If the Iowa corporation could have been individually indicted for creating the nuisance, no reason exists why it should not be individually prosecuted in Chancery for its abatement. But the facts present a much more serious objection to the complainant's right to sue than either of those above stated. The Constitution of Illinois calls for the middle of the Mississippi river as the western boundary of that State, and as Iowa was admitted into the Union after Illinois, a line in the middle of the river is the dividing line between the States.

The complainant sued in the Federal Court because of his citizenship in a different State from the defendant; and the United States District Court holden in Iowa exercised the same jurisdiction that a State Court of Iowa could have exercised, and no more. It had no power beyond the middle of the river. On that part of the bridge within Iowa, and its piers, the Court below acted, and ordered that the structure should be removed.

In considering the merits and the other question as respects the complainant's right to sue, some additional facts need be stated.

This bridge is one thousand five hundred and seventy feet long, and the number of piers is six. Three of them are on the Iowa side of the river. The draw pier is the fourth; it is three hundred and eighty-six feet long at its bottom, and forty-five feet wide. The draw space on the Iowa side is one hundred and eleven feet, and on the Illinois side one hundred and sixteen feet wide in the clear. The distance from centre to centre of the small piers is two hundred and fifty-seven feet. The long pier stands at an angle with the thread of the current of about twenty-four degrees, and the small piers are nearly on a line with the thread of the current. The Illinois draw passage is directly over the deepest channel of the river, and directly over the usual track of steamboats before the bridge was built. The Mississippi is about one thousand four hundred and ten feet wide at the bridge, and the middle of the river is about eighty feet westwardly of the long pier.

The Illinois draw passage (one hundred and sixteen feet), the width of the long pier (forty-five feet), and the eighty feet between it and the eastern line of Iowa cover a space of two hundred and forty feet of water-way, and which embraces the main channel, where steamboats have at all times navigated. It was at the long pier, and in the Illinois draw east of that pier, that the complainant's boats sustained the injuries on which he found his right to sue the Iowa corporation, and to proceed against the bridge in rem as a public nuisance.

An indictment could only have been prosecuted against the owner for keeping up the nuisance in Illinois in the Courts of that State, because the nuisance was a trespass and crime against the laws of Illinois, and the injuries to the complainant's boats giving him the privilege to sue and abate the obstruction was as local as the public right to indict. He asks nothing from the person of the defendant, but seeks to remove a local object, because he has sustained special damage from that object.

The District Court had no power over the local object inflicting the injury; nor any jurisdiction to inquire of the facts, whether damage had been sustained, or how much. These facts are beyond the Court's jurisdiction and powers of inquiry, and outside of the case.

The District Court ordered three spans of the bridge and three of its piers to be removed, extending to middle of the river: And what would be the consequence if we were to affirm that decree? It would, as a consequence, render the bridge useless throughout, but it would not materially remedy the nuisance complained of. The navigation would certainly not be improved so far as the complainant is concerned by removing the Iowa end of the bridge. The cross currents alleged to exist would remain; the large eddy at the lower end of the long pier, and the obstruction to the Iowa draw-passage by the eddy, would still remain.

In the next place: Is the bridge west of the Illinois boundary an unreasonable obstruction, and therefore a nuisance, that a Court of Chancery can lawfully remove? In considering this question we must be governed by the same rule on which a Court of law could proceed in case of an indictment against the Bridge Company for committing the nuisance; and the rule is that if the abrigdment of the right of passage occasioned by the erection was for a public purpose and produced a public benefit, and if the erection was in a reasonable situation, and a reasonable space was left for the passage of vessels on the river, then it is not an unreasonable obstruction and indictable. Rex vs. Russell, (6 Barn. & Cresw., 566; 13 How., 623; 15 Wendell, 133.)

Then, again, the obstruction to navigation must be plainly a nuisance within this rule before it can be removed by decree. If the proceeding was by indictment, and the jury doubted whether the obstruction was a nuisance or not, they would be instructed to acquit the defendant; and so, if this case was referred to a jury to try the fact, and they doubted, they would be bound to acquit. And the same rule applies in a Court of Chancery where the Court ascertains the fact of nuisance. 2 Story's Com. on Eq., 203, 204.

To say the least in this case, it is certainly very doubtful whether the bridge on the Iowa side is a serious obstruction, amounting to a nuisance.

The smaller piers on that side are parallel with the current passing through them, and do not occasion much impediment of navigation to boats without chimneys, nor to rafts.

The main channel where steamboats uniformly pass before the bridge was built, and must now pass, is eastwardly of the facts, of the river, and on the Illinois side. On this state of the facts, it must be admitted that it is hardly possible to deal with the whole obstruction of any bridge across the Mississippi river, it being a boundary between States almost throughout its whole length. And it is difficult to decree in any case of material obstruction, unless the whole nuisance is in the power of the Court. The case before us presents the difficulty very prominently. The plaintiff's case mainly rests on the fact that the draw pier is at an angle to the current, and it is assumed that if this pier was re-constructed parallel with the current, and the draw on the Illinois side was widened the obstruction would be removed to a degree making it short of a nuisance. Now this is a question that we cannot examine, nor reach by a decree, as the relief suggested is clearly beyond our power in this suit. Congress could extend the jurisdiction of the Federal Courts across the Mississippi river by enlarging the judicial districts on either side; or it could confer concurrent jurisdiction on adjoining districts, extending to trespasses and torts committed within the shores of the river. But the Courts of justice cannot do it unless authorized by an Act of Congress.

It is also insisted with great earnestness that the public is entitled to the free navigation of the whole river from bank to bank, and as the western half of the river is undeniably within the jurisdiction of Iowa, it follows that the bridge is a clear nuisance within that district to the extent of half its length. According to this assumption no lawful bridge could be built across the Mississippi anywhere; nor could the great facilities to commerce, accomplished by the invention of railroads, be made available where great rivers had to be crossed.

It is ordered that the bill be dismissed and that the costs be divided-each party paying its own.


text: Talk:Mississippi and Missouri Railroad Company v. Ward/Opinion of the Court


text:
Noonan v. Lee

[Syllabus from pages 499-501 intentionally omitted]

Appeal from the District Court of the United States for the District of Wisconsin.

Mr. Gillet, of District of Columbia, for Appellant.

Mr. Brown, of Wisconsin, for Respondent.

Mr. Justice SWAYNE.

title: Noonan v. Lee


text: Talk:Noonan v. Lee

title: Talk:Noonan v. Lee


text:
Noonan v. Lee/Opinion of the Court

A careful examination of the facts disclosed in the record, is necessary to enable us to arrive at a proper solution of the questions presented for our determination.

Lee sold, on the 1st day of October, 1855, he and his wife, by deed duly executed, conveyed to Noonan certain real estate therein described, as follows:

'One equal undivided half part or share of that certain tract of land bounded and described as follows, viz.: Beginning in the centre of the Milwaukie river, on the centre of the road represented on the recorded plat of the village of Mechanicsville as running east and west between blocks five (5) and six (6) in said village of Mechanicsville; running thence easterly in the centre of said street to the centre of a street running north and south between blocks three (3) and (5) in Mechanicsville aforesaid; thence southerly in the centre of the last mentioned street to the centre of a street running east and west between blocks three (3) and four (4) in said village of Mechanicsville; thence easterly in the centre of said last mentioned street to a point that would be intersected by a north and south line through the middle of block three (3) in Mechanicsville aforesaid; thence southerly on the line bounding the west ends of lots one (1), two (2), three (3), and four (4) in block four (4) in Mechanicsville aforesaid, to south line of said lot four (4) in block four (4) aforesaid; thence easterly on the south line of lot four (4) in block four (4) to the west line of a lot of land containing about one-half (1/2) an acre, represented on said plat of Mechanicsville as being nearly in a square form in the southeast corner of the town plat of Mechanicsville aforesaid; thence southerly on the west line of said last-described tract of land to the south line of the town plat of Mechanicsville; thence easterly on said last mentioned line to the east line of fractional lot two (2) in section four (4), in township seven (7), north of range twenty-two (22) east; thence south to the south line of said fractional lot two (2); thence westerly on the south line of said fractional lot two (2) to the centre of the Milwaukie river; thence northerly in the centre of the Milwaukie river as it winds and turns to the place of beginning. Also the privilege of damming and flowing the Milwaukie river on said fractional lot two (2), as high as said river would be raised by maintaining a dam at least nine feet high, where a certain dam was located across said river, near the south line of fractional lot two (2), in the year 1837, as described in deed from Daniel Bigelow and Amasa Bigelow to Herman V. Prentice, recorded in Volume 'C' of deeds, on page 329, as to flow-water.'

The deed contains a covenant of general warranty.

Upon the same day Noonan executed to Lee a mortgage upon the same premises, conditioned to secure the payment of $4,000, in four equal annual instalments, with interest at the rate of 7 per cent. per annum, payable annually, according to the condition of a bond of the same date executed by Noonan to Lee; and also to secure the payment, by Noonan, of all taxes upon the mortgaged premises. It was further provided, that upon any default by Noonan in respect of the due payment of principal, interest, or taxes, the entire principal of the mortgage debt should, at the option of Lee, thereupon be deemed to have become due, and should, with the interest thereon, be collectable.

At the time of the execution of the bond, Lee made and signed the following endorsement upon it:

'I agree, if my title fails to the property, for the consideration of which this bond is given, except as against the United States, for the portion of the river beyond the meandered line, that I will not enforce this bond; and if any incumbrance shall be found, that the amount of the same shall be deducted from the moneys to fall due on this bond.'

On the 4th of March, 1859, Lee filed his bill setting forth that Noonan had paid nothing either of principal of interest of the mortgage debt; that he had notified Noonan that he claimed the entire debt to be due, and praying for a sale of the mortgaged premises, the payment of the mortgage debt, and for general relief.

The decree finds the amount due Lee to be $5,267.20; directs the sale of the mortgage premises, the payment of the mortgage debt, and the bringing of the surplus moneys, if there were any, into Court, and then provides that if the moneys arising from the sale were insufficient to pay the debt, interest and costs, that the Marshal in his report of the sale should specify the amount of the deficiency, that Noonan should pay it with interest, 'and that the complainant may have execution therefor.'

From this decree Noonan appealed to this Court

Several objections are made here to the decree:

I. It is said the deed is void because it refers for a part of the boundaries to the recorded plat of the town of Mechanicsville.

The law of Wisconsin (revision of 1849) requires that a town plat shall give 'the names, width, courses, boundary, and extent,' of all streets and alleys; that it shall be certified by the surveyor, acknowledged before an officer authorized to take the acknowledgment of deeds, and that it shall then, with the certificate of acknowledgment, be recorded.

The 9th section of the Act provides that if any person 'shall dispose of, offer for sale or lease' any lot or part of a lot before these requirements are complied with, he 'shall forfeit and pay the sum of $25 for each and every lot or part of a lot sold or disposed of, leased or offered for sale.'

This plat was acknowledged on the 15th of March, 1836, and recorded on the 15th of September, 1855. It does not give the names, courses, boundary or length of the streets, and it is not certified by the Surveyor. The certificate of acknowledgment represents the plat as laid out on the 'south-east part of the S. E. quarter of section No. 4 in T. No. 7, in R. No. 22 E., on the east side of the Milwaukie river.' It was in fact laid out on fractional lot 2, of the section named. The southeast quarter is upon the other side of the section and does not approach the river. Lot 2 bounds upon the river. A large lot delineated on the plat bounding upon the river is marked 'reserved for hydraulic purposes.' An island opposite to it is laid down upon the plat. Fractional lot 2, which is twice referred to in the boundaries as given in the deed, bounds upon the river. Parol evidence, not inconsistent with a written instrument, is admissible to apply such instrument to its subject. The designation of the 'southeast quarter' in the certificate of acknowledgment was a clerical mistake. The maxim falso demonstratio non nocet applies. The proof in the case shows clearly where the plat was in fact located. As regards the statute, the plat was fatally defective and afforded no warrant to the recording officer for putting it on record. Nevertheless, its being there was a fact, and whether there or elsewhere, the reference to it in a deed for the purpose of fixing a boundary, is sufficient. 'That is certain which can be rendered certain.' Where a map or plat is thus referred to, the effect is the same as if it were copied into the deed. 'This is a familiar rule of construction, in all those cases wherein no other description is given in the title deeds, than the number of the lot on the Surveyor's plan of a township or other large tract of land.' Davis vs. Rainesford, (17 Mass., 211); McIver's Lessee vs. Walker et al., (4 Wheat., 445).

II. It is claimed that the deed is void because it was executed to convey lots designated upon a town plat not made in conformity to law, and which it was therefore penal to sell.

No lots are mentioned. The plat is referred to only for the purpose of boundary. The land with the boundaries is conveyed without reference to any subdivision. The fact that it had been illegally laid out and platted into lots and streets does not in any wise affect the deed.

III. It is objected that the deed from Prentiss to Church and Clark of August 4, 1847, in Lee's chain of title, and the deed from Church and Clark to Lee of July 7, 1848, were void, because they were made by grantors out of possession, when the premises were held adversely by other parties, under deeds apparently valid.

At the dates of those deeds the Coltons were in possession under a deed of the 22d of June, 1847, from James H. Rogers.

The only part of the description in that deed referring to the premises in controversy is as follows:

'Twenty-two acres of land more or less undivided, in fractional lot number two of section four in township seven, range twenty-two, together with one-half of the water power belonging to said fractional lot two, and also all the right, title and interest of the said parties of the first part in and to said lot two.'

A title to twenty-two acres undivided would have given the grantee no right to take exclusive possession of the mortgage premises. So far as the record discloses the facts, it appears that Rogers claimed entirely under sales for taxes. It will presently appear that they gave him no title, real or apparent, which he could convey to another.

IV. The tax deeds.

It is not denied that at the time Lee conveyed to Noonan, his chain of title was perfect, unless it was broken by one or more of the facts claimed by Noonan to have produced that effect. In this connection the tax deeds found in the record are relied upon. The consist of Exhibits C, D, E, F, G, H, I, J, and the deed to Orton of the 25th of April, 1852.

(1). The deed last named does not appear to have been recorded. Possession under it can therefore have no effect upon the rights of Lee. The description in the deed does not cover the premises in controversy. That part of the description relied upon is in these words:

'Part of the S. E. quarter section fourth, T. 7, R. 22, bounded north by Demster, east by Jones and Bare, west by river, and south by Allerding, (nineten acres).'

The land in controversy is not in the southeast quarter of the section, and there is nothing in the case which shows what river is referred to, or where the lands of Demster and the other parties named are situated.

(2). Exhibit F, I, and J, are duplicates respectively of Exhibits H, C, and E, and may be laid out of view.

(3). Exhibits C, D, and G, embrace none of the land in controversy. This leaves only Exhibits E and H to be examined.

(4). Exhibit 'E.' This is a deed to James H. Rogers. It bears date on the 17th of February, 1846. It recites a sale to Rogers on the 14th day of December, 1840, for the taxes of that year. The description embraces lots one and six in block five of the plat. This block is within the limits of the mortgaged premises. At the time of the sale, and for several years previous, Rogers had been in possession of the mortgaged premises under the deed of the 27th of July, 1837, from Prentiss, to whom he had given back a mortgage of the same date to secure the purchase-money. Prentiss had proceeded to foreclose the mortgage, and the premises were sold under a decree rendered on the 26th of June, 1840. Prentiss became the purchaser, and on the 5th of October, 1840, received the master's deed for the premises.

Rogers being in possession, the Statutes of Wisconsin required him to pay the taxes, and gave him an action to recover the money back, if he were entitled to it, from the party to whose benefit the payment enured. (Revised Statutes of 1839, sec. 14, p. 47.)

His relation to the property, and to his vendor and mortgagee also, rendered it his duty to make such payment. Neither he nor any one claiming under him can avail himself of a title thus acquired, as against Prentiss and those claiming under him. Douglass vs. Dangerfield, (10 O. Rep., 152); Creps vs. Baird, (3 O. S. R., 377).

(5). Exhibit 'H.'

This deed was also to James H. Rogers, and bears date on the 23d of December, 1845. It recites that the sale was made to Rogers on the 9th of December, 1839, for the taxes of that year.

It embraces lots 1, 2, 3, 4, 5, and 6, in block 5, as delineated on the plat. During all of the year 1839, Rogers was in possession as the vendee of Prentiss, and the same remarks apply as to Exhibit 'E.'

Underlying these deeds is another objection.

We have already referred to the non-conformity of the town plat to the requirements of the statute, and the fact that it was penal to sell or lease any lot, as such, which it represented. All the witnesses, including Orton, who claimed to be in possession of the whole of fractional lot 2, speak of it as a 'pretended plat.' Orton says:

'I do not know of such a village as Mechanicsville in fact, though I have heard of it. I do not know where the plat of Mechanicsville is located, though I know where they claim it is located. I know the land described in the mortgage in the bill of complaint from its boundaries.'

It does not appear in the case that any street was ever improved, that any lot was ever enclosed, or that any house was ever built with reference to the boundaries of any street or lot. It comes out incidentally in the evidence touching possession, that there is but one house on the plat, and that it is in a ruinous condition and unoccupied. Nothing is proved in pais, recognizing the existence of the plat.

Under these circumstances it may well be doubted whether the sales of lots for taxes were not illegal and void. Wheeler vs. Russell, (17 Mass., 258); Strong vs. Darling et al., (9 O. Rep., 201).

We have not found it necessary to decide that question, and we express no opinion upon the subject.

As the facts are disclosed in the record, we find no defect in the title of Lee. We find that Noonan's title has not 'failed,' and no encumbrance upon the property is shown. There has been, therefore, no breach of the agreement endorsed upon the bond; nor has there been any breach of the covenant of general warranty in Lee's deed to Noonan. The deed contains no other covenant. The Statute of Wisconsin of 1849 permits a grantor out of possession to make a valid conveyance of lands adversely held by another. In all cases where there is adverse possession, by virtue of a paramount title, of lands thus conveyed, such possession is regarded as eviction, and involves a breach of the covenant of warranty. Where, as in this case, the paramount title is in the warrantor and the adverse possession tortious, it is no eviction either actual or constructive, and no action will lie upon the covenant. Randolph vs. Meek, (1 Martin & Yerger, 58); Moore vs. Vail, (17 Ill., 185); Rawle on Covenants of Title, 224).

There is another view of this case which must not be passed over in silence.

It is not claimed by Noonan in his answer that there was any fraud or misrepresentation on the part of Lee, or that any fact exists in regard to the title which was unknown to him when he bought the property. It appears by the testimony of Orton, that there was a controversy between him and Noonan about water power, and that it has been adjusted. Orton says: 'He' (Noonan) 'has no interest with me in this land of record. I don't know that he has any.' 'I don't know that I have any interest in the result of this suit. I dont know that I will be benefitted in any way by Noonan's success in this suit.' This is guarded and peculiar language. It is impossible to read the testimony of Orton and resist the conclusion that Noonan bought the property for a purpose, and that having held the title for several years without paying anything, and accomplished that purpose, he is now seeking, upon the pretence of defects of title, finally to avoid the payment of the purchase money, and throw back the property upon the hands of his vendor. This ungracious work a Court of Equity will not permit him to do.

If Noonan had gone into possession, and continued in possession under his deed from Lee, this elaborate examination of the state of the title would not have been necessary. With reference to that class of cases, this Court, in Patton vs. Taylor, (7 How., 159), after referring to numerous authorities, thus laid down the law:

'These cases will show that a purchaser in the undisturbed possession of the land will not be relieved against the payment of the purchase money, on the mere ground of defect of title, there being no fraud or misrepresentation, and that in such a case he must seek his remedy at law on the covenants in his deed. That if there is no fraud and no covenants to secure the title, he is without remedy, as the vendor selling in good faith is not responsible for the goodness of his title beyond the extent of his covenants in the deed. And that further relief will not be afforded upon the ground of fraud, unless it be made a distinct allegation in the bill, so that it may be put in issue by the pleadings.'

This doctrine is fully sustained by the best considered authorities. Corning vs. Smith, (2 Seld., 84); Plat vs. Gilchrist, (3 Sandf. S.C.. Rep., 118); Butler vs. Hill, (6 Ohio S. R., 217); Beebe vs. Swartout, (3 Gilman, 162).

The proofs in this case show, that before filing his bill, Lee notified Noonan, that he elected to consider the entire amount of the mortgage debt as due. This entitled him to a decree for the full amount, although according to the terms of the bond, one of the instalments was not due when the bill was filed. Noyes vs. Clark, (7 Paige, 180).

It remains to consider that part of the decree which directs Noonan to pay the balance which may remain unsatisfied after exhausting the proceeds of the mortgaged premises.

The equity jurisdiction of the Courts of the United States is derived from the Constitution and Laws of the United States. Their powers and rules of decision are the same in all the States. Their practice is regulated by themselves, and by rules established by the Supreme Court. This Court is invested by law with authority to make such rules. In all these respects they are unaffected by State legislation, Neves vs. Scott, (13 How., 270); Boyle vs. Zachary Turner, (6 Pet., 658); Robinson vs. Campbell, (3 Wheat., 323).

A majority of my brethren are of the opinion, and I am directed by them so to announce, that in the absence of a rule of this Court authorizing it to be done, it was not competent for the Court below to make such an order.

That part of the decree is reversed. The residue is affirmed. The cause will be remanded to the Court below with instructions to proceed accordingly.

title: Noonan v. Lee/Opinion of the Court


text: Talk:Noonan v. Lee/Opinion of the Court

title: Talk:Noonan v. Lee/Opinion of the Court


text:
Gilman v. City of Sheboygan

Appeal from the District Court of the United States for the District of Wisconsin.

Mr. Doolittle, of Wisconsin, for Appellant.

Mr. Howe, of Wisconsin, for Appellee.

Mr. Justice SWAYNE.

title: Gilman v. City of Sheboygan


text: Talk:Gilman v. City of Sheboygan

title: Talk:Gilman v. City of Sheboygan