text:
Walker v. Whitehead/Opinion of the Court

The case, as it appears in the record, is as follows: On the 1st of January, 1870, the plaintiff in error instituted this suit against the defendant in error upon a promissory note, made by the latter to the former, dated March 28th, 1864, for $7219.47, payable on the 19th of March then next ensuing. The defendant interposed two pleas:

1st. That after the maturity of the note he had tendered payment in Confederate treasury notes.

2d. That he was a loser by the result of the late war against the United States of one hundred negroes worth $50,000, and of Confederate securities of the value of $20,000; that he was a citizen of the Confederate States who waged and carried on that war, and that he pleads those losses as an offset to the demand of the plaintiff to the amount of the principal and interest of that demand.

When the case was called on the calendar the defendant moved the court to dismiss it, because the plaintiff had not filed an affidavit of the payment of the taxes upon the note as required by the act of the legislature of Georgia of the 13th of October, 1870. The plaintiff objected upon several grounds. The court overruled his objection, and dismissed the case. The plaintiff thereupon removed it to the Supreme Court of the State. That court affirmed the judgment of the court below.

The first and second sections of the act referred to are as follows:

'SECTION 1. That in all suits pending, or hereafter brought, in or before any court of the State, founded upon any debt or contract or cause of action made or implied before the 1st June, 1865, or upon any other debt or contract in renewal thereof, it shall not be lawful for the plaintiff to have a verdict or judgment in his favor, unless he has made it clearly to appear before the tribunal trying the same that all legal taxes chargeable by law upon the same have been duly paid for each year since the making or implying of said debt or contract.

'SECTION 2. In any suit now pending, or hereafter brought, it shall be the duty of the plaintiff, within six months after the passage of this act, if the suit be pending, and at the filing of the writ, if the suit be hereafter brought, to file with the clerk of the court of justice an affidavit, if the suit was founded on any debt or contract as described in section one, that all legal charges chargeable by law upon such debt or contract have been duly paid, or the income thereon for each year since the making of the same, and that he expects to prove the same upon the trial; and, upon failure to file such affidavit as herein required, said suit shall, on motion, be dismissed.'

The fourth section declares it to be a condition precedent to a recovery that 'the said debt has been regularly given in for taxes, and the taxes paid.'

The fifth section provides, in respect of judgments already rendered, that no levy or sale shall be made unless an affidavit be made that all taxes 'have been duly paid from the time of making said contract to the time of attaching the affidavit.'

The sixth section provides that in all cases of indebtedness of this class the defendant may offset 'any losses he may have suffered by, or in consequence of, the late war against the United States,' whether the said losses 'be from the destruction or depreciation of property.'

The seventh section declares that these damages shall not be considered as 'too remote or speculative, if it appear that they were fairly and legitimately produced, directly or indirectly, by said war or the results thereof.' The ninth section provides that these losses by the war may be offset against judgments already rendered.

The fourteenth section provides that, as to such debts due to widows and minors, they are to be settled 'upon the principles of equity, taking into consideration the relative loss of property sustained by the plaintiff and defendant.'

The fifteenth section provides that the provisions of the fourteenth are not to apply where the defendant is in possession of the property, for the purchase of which the said contract was entered into, with this proviso: that 'the defendant may elect to give up the property in his possession for which such contract was entered into, and such election shall be the full discharge of such indebtedness.'

The contract here in question is within the predicate of this act. It was made more than six years before the act was passed. The act was retrospective-denounced a penalty not before prescribed for the non-payment of taxes-and, if such delinquency had existed for a single year, confiscated the debt by making any remedy to enforce payment impossible. The denunciation and the penalty came together. There was no warning and there could be no escape. The purpose of the act was plainly not to collect back taxes-that was neither asked nor permitted as a means of purgation but to bar the debt and discharge the debtor.

The act is not an ex post facto law only because that phrase in its legal sense is confined to crimes and their punishment.

The Constitution of the United States declares that no State shall pass any 'law impairing the obligation of contracts.'

These propositions may be considered consequent axioms in our jurisprudence:

The laws which exist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it. This embraces alike those which affect its validity, construction, discharge, and enforcement;

Nothing is more material to the obligation of a contract than the means of its enforcement. The ideas of validity and remedy are inseparable, and both are parts of the obligation which is guaranteed by the Constitution against impairment;

The obligation of a contract 'is the law which binds the parties to perform their agreement;'

Any impairment of the obligation of a contract-the degree of impairment is immaterial-is within the prohibition of the Constitution;

The States may change the remedy, provided no substantial right secured by the contract is impaired. Whenever such a result is produced by the act in question, to that extent it is void. The States are no more permitted to impair the efficacy of a contract in this way than to attack its vitality in any other manner. Against all assaults coming from that quarter, whatever guise they may assume, the contract is shielded by the Constitution. It must be left with the same force and effect, including the substantial means of enforcement, which existed when it was made. The guarantee of the Constitution gives it protection to that extent.

The effect of these propositions upon the judgment before us requires but a single remark. A clearer case of a law impairing the obligation of a contract, within the meaning of the Constitution, can hardly occur.

The judgment of the Supreme Court of Georgia is REVERSED, and the cause will be remanded to that court with directions to enter a judgment of reversal, and then to proceed.

IN CONFORMITY TO THIS OPINION.


text: Talk:Walker v. Whitehead/Opinion of the Court

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


text:
Michigan Central Railroad Company v. Mineral Springs Manufacturing Company

IN error to the Circuit Court for the District of Connecticut; the case being thus:

In October, 1865, at Jackson, a station on the Michigan Central Railroad, about seventy-five miles west of Detroit, one Bostwick delivered to the agent of the Michigan Central Railroad Company, for transportation, a quantity of wool consigned to the Mineral Springs Manufacturing Company, at Stafford, Connecticut, and took a receipt for its carriage, on the back of which was a notice that all goods and merchandise are at the risk of the owners while in the warehouses of the company, unless the loss or injury to them should happen through the negligence of the agents of the company.

The receipt and notice were as follows:

'MICHIGAN CENTRAL RAILROAD COMPANY,

'JACKSON, October 11th, 1865.

'Received from V. M. Bostwick, as consignor, the articles marked, numbered, and weighing as follows:

[Wool described.]

'To be transported over said railroad to the depot, in Detroit, and there to be delivered to _____, agent, or order, upon the payment of the charges thereon, and subject to the rules and regulations established by the company, a part of which notice is given on the back hereof. This receipt is not transferable.

'HASTINGS,

'Freight Agent.'The notice on the back was thus:

'The company will not be responsible for damages occasioned by delays from storms, accidents, or other causes,. . . and all goods and merchandise will be at the risk of the owners thereof while in the company's warehouses, except such loss or injury as may arise from the negligence of the agents of the company.'

Verbal instructions were given by Bostwick that the wool should be sent from Detroit to Buffalo, by lake, in steamboats, which instructions were embodied in a bill of lading sent with the wool. Although there were several lines of transportation from Detroit eastward by which the wool could have been sent, there was only one transportation line propelled by steam on the lakes, and this line was, and had been for some time, unable, in their regular course of business, to receive and transport the freight which had accumulated in large quantities at the railroad depot in Detroit. This accumulation of freight there, and the limited ability of the line of propellers to receive and transport it, were well known to the officers of the road, but neither the consignor, consignee, nor the station-master at Jackson, were informed on this subject. The wool was carried over the road to the depot in Detroit, and remained there for a period of six days, when it was destroyed by an accidental fire, not the result of any negligence on the company's part. During all the time the wool was in the depot it was ready to be delivered for further transportation to the carrier upon the route indicated.

In consequence of the loss the manufacturing company sued the railroad company. The charter of the company, which was pleaded and offered in evidence, contained a section thus:

'The said company may charge and collect a reasonable sum for storage upon all property which shall have been transported by them upon delivery thereof at any of their depots, and which shall have remained at any of their depots more than four days; Provided, that elsewhere than at their Detroit depot, the consignee shall have been notified if known, either personally or by notice left at his place of business or residence, or by notice sent by mail, of the receipt of such property at least four days before any storage shall be charged, and at the Detroit depot such notice shall be given twenty-four hours (Sundays excepted) before any storage shall be charged; but such storage may be charged after the expiration of said twenty-four hours upon goods not taken away; Provided, that in all cases the said company shall be responsible for goods on deposit in any of their depots awaiting delivery, as warehousemen, and not as common carriers.'

The controversy, of course, was as to the nature of the bailment when the fire took place. If the railroad company were to be considered as warehousemen at the time the wool was burned, they were not liable in the action, as the fire which caused its destruction was not the result of any negligence on their part. If, on the contrary, their duty as carriers had not ceased at the time of the accident, and there were no circumstances connected with the transaction which lessened the rigor of the rule applicable to that employment, they were responsible; carriers being substantially insurers of the property intrusted to their care.

The court was asked by the railroad company to charge the jury that its liability was the limited one of a warehouseman, importing only ordinary care. The court refused so to charge, and, on the contrary, charged that the railroad company were liable for the wool as common carriers, during its transportation from Jackson to Detroit, and after its arrival there, for such reasonable time as, according to their usual course of business, under the actual circumstances in which they held the wool, would enable them to deliver it to the next carrier in the line, but that the manufacturing company took the risk of the next carrier line not being ready and willing to take said wool, and submitted it to the jury to say whether under all the circumstances of the case in evidence before them, such reasonable time had elapsed before the occurrence of the fire.

The jury, under the instructions of the court, found that the railroad company were chargeable as carriers, and this writ of error was prosecuted to reverse that decision.

Mr. F. Chamberlin, for the plaintiff in error:

1. The railroad company was not liable even by the severe rule of the common law, and independently of the proviso in their charter, and of the notice.

The law on the subject is thus stated by Judge Story, in his work on bailments:

'If a carrier between A. and B. receives goods to be carried from A. to B., and thence forwarded by a distinct conveyance to C., as soon as he arrives with the goods at B. and deposits them in his warehouse there, his responsibility as carrier ceases, for that is the termination of his duty ''as such. He then becomes as to the goods a mere warehouseman'', undertaking for their further transportation.'

The language of the same book in another place is equally pertinent and significant:

'When the goods have arrived at the place of their fixed destination and are there deposited in the carrier's warehouse, to await the convenience of the owner in sending for them, or for the purpose of being forwarded by some other carrier to another place, then his duty as carrier ends on the arrival of the goods at his (the carrier's) warehouse, and his duty as warehouseman commences.'

There is no difference which is of substance to the manufacturing company between goods to be delivered to the owner at their final destination and goods deliverable to the owner or his agent for further carriage.

The controlling fact is, that the plaintiff's duty of carriage is completed, and the goods are stored for the convenience of the owner. The office of the plaintiffs is in both cases the same, the carriage is the same, and the delivery to the person entitled to receive them is the same in the one case as in the other. If the goods are to go farther, by an independent line, the next carrier stands in place of the owner or consignee, so far as the first carrier is concerned, and as soon as the function of carriage proper is performed, that is, in this case, as soon as we place them in the depot 'ready to be delivered' over, they are 'awaiting delivery.'

There was indeed, in this case, no offer to deliver, as owing to their limited means of transportation, by the line of propellers, any such offer would have been a useless act. Lex nemi rem cogit ad vana.

If it be said that the railroad company knew of this inability of the line of propellers and should have not taken this wool, the answer is that as common carriers, having, themselves, ample means of carriage, the railroad company could not have declined to receive any goods to be carried so far as their line extended; that is to say, to Detroit. They were bound to take the wool to that point.

2. But if liable by the rules of the old common law, still by the very terms of the railroad company's charter, the company, while the wool should be in deposit in a depot 'awaiting delivery,' was not to be responsible as common carriers, but only as warehousemen. Now, this case is that while the wool was in the depot 'ready to be delivered,' &c., it was destroyed. This brings matters within the terms of the proviso, unless we raise a distinction-one which has no foundation in reason-between a case in which the goods are at the final terminus of their carriage, and this in which they were to be delivered to another carrier, selected by the defendant in error, for further carriage.

3. Independently of this, there was a notice, in plain terms, to the consignor, and this was the condition of the contract, that all goods and merchandise would be at the risk of the owners thereof, while in the company's warehouses, except such loss or injury as might arise from the negligence of the agents of the company. Now, the receipt without dissent by a consignor of a bill of lading, by which the carrier stipulates against liability for loss by fire, discharges the carrier from liability for such loss not caused by his own negligence. And in an action against the carrier, evidence is not admissible, in the absence of fraud, to show that the consignor did not read the terms of the bill of lading.

Since the case of York Compy. v. Central Railroad Co., in this court, it can no longer be doubted that the common-law liability of a carrier for the safe carriage of goods may be limited and qualified by special contract with the owner, provided that such special contract do not attempt to cover losses by negligence or misconduct.

Mr. A. P. Hyde, contra.

Mr. Justice DAVIS delivered the opinion of the court.


text: Talk:Michigan Central Railroad Company v. Mineral Springs Manufacturing Company


text:
Michigan Central Railroad Company v. Mineral Springs Manufacturing Company/Opinion of the Court

It is not necessary in the state of this record to go into the general subject of the duty of carriers in respect to goods in their custody which have arrived at their final destination. Different views have been entertained by different jurists of what the carrier is required to do when the transit is ended in order to terminate his liability, but there is not this difference of opinion in relation to the rule which is applicable while the property is in process of transportation from the place of its receipt to the place of its destination.

In such cases it is the duty of the carrier, in the absence of any special contract, to carry safely to the end of his line and to deliver to the next carrier in the route beyond. This rule of liability is adopted generally by the courts in this country, although in England, at the present time, and in some of the States of the Union, the disposition is to treat the obligation of the carrier who first receives the goods as continuing throughout the entire route. It is unfortunate for the interests of commerce that there is any diversity of opinion on such a subject, especially in this country, but the rule that holds the carrier only liable to the extent of his own route, and for the safe storage and delivery to the next carrier, is in itself so just and reasonable that we do not hesitate to give it our sanction. Public policy, however, requires that the rule should be enforced, and will not allow the carrier to escape responsibility on storing the goods at the end of his route, without delivery or an attempt to deliver to the connecting carrier. If there be a necessity for storage it will be considered a mere accessory to the transportation, and not as changing the nature of the bailment. It is very clear that the simple deposit of the goods by the carrier in his depot, unaccompanied by any act indicating an intention to renounce the obligation of a carrier, will not change or modify even his liability. It may be that circumstances may arise after the goods have reached the depot which would justify the carrier in warehousing them, but if he had reasonable grounds to anticipate the occurrence of these adverse circumstances when he received the goods, he cannot by storing them change his relation towards them.

Testing the case in hand by these well-settled principles, it is apparent that the plaintiffs in error are not relieved of their proper responsibility, unless through the provisions of their charter, or by the terms of the receipt which was given when they received the wool. They neither delivered nor offered to deliver the wool to the propeller company. Nor did they do any act manifesting an intention to divest themselves of the character of carrier and assume that of forwarder.

It is insisted that the offer to deliver would have been a useless act, because of the inability of the line of propellers, with their means of transportation, to receive and transport the freight which had already accumulated at the Michigan Central depot for shipment by lake. One answer to this proposition is, that the company had no right to assume, in discharge of its obligation to this defendant, that an offer to deliver this particular shipment would have been met by a refusal to receive. Apart from this, how can the company set up, by way of defence, this limited ability of the propeller line when the officers of the road knew of it at the time the contract of carriage was entered into, and the other party to the contract had no information on the subject?

It is said, in reply to this objection, that the company could not have refused to receive the wool, having ample means of carriage, although it knew the line beyond Detroit selected by the shipper was not at the time in a situation to receive and transport it. It is true the company were obliged to carry for all persons, without favor, in the regular course of business, but this obligation did not dispense with a corresponding obligation on its part to inform the shipper of any unavoidable circumstances existing at the termination of its own route in the way of a prompt delivery to the carrier next in line. This is especially so when, as in this case, there were other lines of transportation from Detroit eastward by which the wool, without delay, could have been forwarded to its place of destination. Had the shipper at Jackson been informed, at the time, of the serious hindrances at Detroit, to the speedy transit of goods by the lake, it is fair to infer, as a reasonable man, he would have given a different direction to his property. Common fairness requires that at least he should have been told of the condition of things there, and thus left free to choose, if he saw fit, another mode of conveyance. If this had been done there would be some plausibility in the position that six days was an unreasonable time to require the railroad company to hold the wool as a common carrier for delivery. But under the circumstances of this case the company had no right to expect an earlier period for delivery, and cannot, therefore, complain of the response of the jury to the inquiry on this subject submitted to them by the Circuit Court.

It is earnestly argued that the plaintiffs in error are relieved from liability under a provision contained in one section of their charter, if not by the rules of the common law.

But it is quite clear, on reading the whole section, that it refers to property which has reached its final destination, and is there awaiting delivery to its owner. If so, how can the proviso in question be made to apply to another and distinct class of property? To perform this office it must act independently of the rest of the section, and enlarge, rather than limit, the operation of it. This it cannot do, unless words are used which leave no doubt the legislature intended such an effect to be given to it.

It is argued, however, that there is no difference between goods to be delivered to the owner at their final destination and goods deliverable to the owner, or his agent, for further carriage. That in both cases, as soon as they are 'ready to be delivered' over, they are 'awaiting delivery.' This position, although plausible, is not sound. There is a clear distinction, in our opinion, between property in a situation to be delivered over to the consignee on demand, and property on its way to a distant point to be taken thence by a connecting carrier. In the former case it may be said to be awaiting delivery; in the latter, to be awaiting transportation. And this distinction is recognized by the Supreme Court of Michigan in the case of the present plaintiffs in error against Hale. The court in speaking on this subject say, 'that goods are on deposit in the depots of the company, either awaiting transportation or awaiting delivery, and that the section (now under consideration) has reference only to goods which have been transported and placed in the company's depots for delivery to the consignee.' To the same effect is a recent decision of the Court of Appeals of New York, in a suit brought to recover for the loss of goods by the same fire that consumed the wool in this case, and which were marked for conveyance by the same line of propellers on Lake Erie.

It is insisted, however, by the plaintiffs in error, if they are not relieved from liability as carriers by the provisions of their charter, that the receipt taken by the consignor, without dissent, at the time the wool was received, discharges them. The position is, that the unsigned notice printed on the back of the receipt is a part of it, and that, taken together, they amount to a contract binding on the defendants in error.

This notice is general, and not confined, as in the section of the charter we have considered, to goods on deposit in the depots of the company awaiting delivery. It is a distinct announcement that all goods and merchandise are at the risk of the owners thereof while in the company's warehouses, except for such loss or injury as may arise from the negligence of the agents of the company. The notice was, doubtless, intended to secure immunity for all losses not caused by negligence or misconduct during the time the property remained in the depots of the company, whether for transportation on their own line, or beyond, or for delivery to consignees. And such will be its effect if the party taking the receipt for his property is concluded by it. The question is, therefore, presented for decision whether such a notice is effectual to accomplish the purpose for which it was issued.

Whether a carrier when charged upon his common-law responsibility can discharge himself from it by special contract, assented to by the owner, is not an open question in this court since the cases of The New Jersey Steam Navigation Company v. The Merchants' Bank, and York Company v. Central Railroad. In both these cases the right of the carrier to restrict or diminish his general liability by special contract, which does not cover losses by negligence or misconduct, received the sanction of this court. In the former case the effect of a general notice by the carrier seeking to extinguish his peculiar liability was also considered, and although the remarks of the judge on the point were not necessary to the decision of the case, they furnish a correct exposition of the law on this much-controverted subject.

In speaking of the right of the carrier to restrict his obligation by a special agreement, the judge said: 'It by no means follows that this can be done by an act of his own. The carrier is in the exercise of a sort of public office, from which he should not be permitted to exonerate himself without the assent of the parties concerned. And this is not to be implied or inferred from a general notice to the public limiting his obligation, which may, or may not, be assented to. He is bound to receive and carry all the goods offered for transportation, subject to all the responsibilities incident to his employment, and is liable to an action in case of refusal. If any implication is to be indulged from the delivery of the goods under the general notice, it is as strong that the owner intended to insist upon his rights and the duties of the carrier, as it is that he assented to their qualification. The burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment.'

These considerations against the relaxation of the commonlaw responsibility by public advertisements, apply with equal force to notices having the same object, attached to receipts given by carriers on taking the property of those who employ them into their possession for transportation. Both are attempts to obtain, by indirection, exemption from burdens imposed in the interests of trade upon this particular business. It is not only against the policy of the law, but a serious injury to commerce to allow the carrier to say that the shipper of merchandise assents to the terms proposed in a notice, whether it be general to the public or special to a particular person, merely because he does not expressly dissent from them. If the parties were on an equality in their dealings with each other there might be some show of reason for assuming acquiescence from silence, but in the nature of the case this equality does not exist, and, therefore, every intendment should be made in favor of the shipper when he takes a receipt for his property, with restrictive conditions annexed, and says nothing, that he intends to rely upon the law for the security of his rights.

It can readily be seen, if the carrier can reduce his liability in the way proposed, he can transact business on any terms he chooses to prescribe. The shipper, as a general thing, is not in a condition to contend with him as to terms, nor to wait the result of an action at law in case of refusal to carry unconditionally. Indeed such an action is seldom resorted to, on account of the inability of the shipper to delay sending his goods forward. The law, in conceding to carriers the ability to obtain any reasonable qualification of their responsibility by express contract, has gone as far in this direction as public policy will allow. To relax still further the strict rules of common law applicable to them, by presuming acquiescence in the conditions on which they propose to carry freight when they have no right to impose them, would, in our opinion, work great harm to the business community.

The weight of authority is against the validity of the kind of notices we have been considering. And many of the courts that have upheld them have done so with reluctance, but felt themselves bound by previous decisions. Still they have been continued, and this persistence has provoked legislation in Michigan, where this contract of carriage was made, and the plaintiffs in error have their existence. By an act of the legislature passed after the loss in this case occurred, it is declared 'that no railroad company shall be permitted to change or limit its common-law liability as a common carrier by any contract or in any other manner, except by a written contract, none of which shall be printed, which shall be signed by the owner or shipper of the goods to be carried.'

It is fair to infer that this kind of legislation will not be confined to Michigan, if carriers continue to claim exemption from common-law liability through the medium of notices like the one presented in defence of this suit.

These views dispose of this case, and it is not necessary to notice particularly the instructions which the court below gave to the jury. If the court erred at all it was in charging more favorably for the plaintiffs in error than the facts of the case warranted.

JUDGMENT AFFIRMED.


text: Talk:Michigan Central Railroad Company v. Mineral Springs Manufacturing Company/Opinion of the Court


text:
Cofield v. McClelland

APPEAL from the Supreme Court for the Territory of Colorado; the case being thus:

The city of Denver, which is in the couty of Arapahoe, Colorado Territory, was originally laid out by a company or association of persons, on the public domain of the United States, before the same had been surveyed and became subject to entry. And the company was aided by the privileges of pre-emption, at the minimum price, being secured to settlers and occupants of lots by the general enactment of May 23d, 1844, 'for the relief of the citizens of the towns upon the lands of the United States under certain circumstances,' and by a special enactment 'for the relief of the citizens of Denver,' of the 28th of May, 1864, whereby the probate judge of the county was constituted a trustee to enter the land selected for the site of the town, when the same became subject to entry, and to pass the legal title to the settlers and occupants of lots, under rules and regulations prescribed by the legislative authority of the Territory of Colorado.

These acts being in force, the probate judge of Arapahoe County having, on the 6th of May, 1865, entered the town site under the acts referred to, on the 10th of May, 1865, and in accordance with the directions of a Territorial act of Colorado, of March 11th, 1864, advertised for four weeks thereafter in a weekly newspaper published at Denver (though whether also by posting notices in three public places in the town, which a Territorial act of Colorado required, did not appear, the judge himself being dead), the fact that he had made the said entry, and that all claimants of lots in the town should within ninety days present their claims to him.

Mrs. Louisa McClelland, then, as the evidence in the case went strongly to show, in occupation of lot No. 6, block 69, in Denver, and who had erected valuable improvements on it, and was then paying taxes upon it-all without apparent knowledge of any counter claim-accordingly presented her claim for the said lot, and there being no counter claim made to it by any one, the probate judge, on the 11th of August, 1865, conveyed the said lot to her. She being thus in possession, one Cofield, in April, 1869, filed a bill against her to compel a conveyance to him. The bill alleged an equitable title to the lot in the complainant by the occupation and possession; a prior settlement, to wit, by a certain Preston, in 1859, a conveyance by Preston to one Hall, and after several intermediate conveyances, by which the lot came to one Bates, a conveyance by Bates to the complainant in 1869.

The court below having dismissed the bill, the complainant took this appeal.

Mr. J. M. Woolworth, for the appellant; Messrs. Bartley and Casey, contra.

Mr. Justice HUNT delivered the opinion of the court.

title: Cofield v. McClelland


text: Talk:Cofield v. McClelland

title: Talk:Cofield v. McClelland


text:
Cofield v. McClelland/Opinion of the Court

The territory upon which stands the city of Denver, Colorado, was entered upon, occupied, and possessed by numerous persons before the same was surveyed and had become subject to public entry. Occurrences like the one which gives rise to this bill seem to have been common, and the rights of the parties were protected and regulated by an act of Congress passed May 23d, 1844. A special act was also passed by Congress, on the 28th of May, 1864, 'for the relief of the citizens of Denver.' It is by the principles prescribed in these several statutes that the rights of the parties in this suit are to be determined.

The first of the acts to which reference has been made authorizes the probate judge to enter at the proper land office the land settled and occupied by such occupants of a town or city. It is also enacted that such entry by him shall be 'in trust for the several use and benefit of the occupants thereof according to their respective interests, the execution of which trust as to the disposal of the lots in such town, and the proceeds of the sale thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the State or Territory in which the same is situated.'

The act 'for the relief of the citizens of Denver, in the Territory of Colorado,' authorizes 'the probate judge of Arapahoe County to enter at the minimum price, in trust for the several use and benefit of the rightful occupants of said land, and the bon a fide owners of the improvements thereon, according to their respective interests, the following legal subdivisions of land,' describing certain specific divisions, of which the lot in question is a portion.

The act of the Territorial legislature of Colorado, passed March 11th, 1864, contained numerous provisions regulating the rights of settlers and the manner in which their rights shall be ascertained. The second section enacts that the title from the probate judge shall be in trust for and conveyed to 'the person or persons who shall have, possess, or be entitled to the possession or occupancy thereof according to his, her, or their respective rights or interest in the same, as they existed in law or equity, at the time of the entry of such lands, or to his, her, or their heirs or assigns.'

This regulating act of the Territory is in harmony with the acts of Congress. It expresses more explicitly than do those acts, the statement that the occupation and possession which gives the right, is that which exists at the time of the entry of the lands by the probate judge. Those in possession of the land when the entry shall be made by the probate judge, are the persons for whom he holds the lands in trust, and to whom he is to make the respective deeds. Although less explicitly declared, this is the construction and meaning of the acts of Congress also.

The land on which the city of Denver stands was entered by the probate judge in May, 1865. The evidence is strong and quite convincing that at that date, as well as at the time of the passage of the enabling act (May, 1864), Mrs. McClelland, the defendant, was in the actual possession of lot No. 6, with valuable improvements made thereon, and paying the taxes on the same. Such must have been the conclusion of the court below, and we concur in it. The result is fatal to the plaintiff's right of recovery.

Again: Section three of the Territorial act, to which reference has been made, makes it the duty of the judge entering the land, within thirty days after such entry, by posting a notice in three public places and by publishing the same in a newspaper of the town, if there be one, to give notice of such entry. This notice is required to be published once in each week, for three weeks, and to contain an accurate description of the lands so entered. It was published by the probate judge in a newspaper published at Denver, for four weeks, commencing May 10th, 1865. The judge was not living at the time of the trial, and there was no evidence that the notice was posted in three public places in the town. We think this is a case in which the presumption applies that the officer has done his duty, especially as no provision was made in the act for procuring the evidence that notice had been published. The case comes within the rule so well settled in this court, 'that the legal presumption is that the surveyor, register, governor, secretary of state, have done their duty in regard to the several acts to be done by them in granting lands, and therefore surveys and patents are always received as prim a facie evidence of correctness.'

Section four of the Territorial act, to which reference has been made, enacts as follows:

'§ 4. Each and every person or association, or company of persons, claiming to be an occupant or occupants, or to have possession or to be entitled to the occupancy or possession of such lands, or to any lot, block, or share therein, shall, within ninety days after the first publication of such notice. . . sign a statement in writing, containing an accurate description of the particular parcel or parts of land in which he claims an interest,. . . and deliver the same into the office of the judge or judges, and all persons failing to sign and deliver such statement within the time specified in this section, shall be forever barred the right of claiming or recovering such lands or any interest or estate therein. . . in any court of law or equity.'

No language could be more explicit to make the failure to deliver the statement within the time specified a bar, an absolute bar, to the recovery of the same, however strong might be the equitable claim to the land so lost.

This regulation is a reasonable one. In a crowded district, with a changing frontier population, it might well be required that the claim should be interposed at an early day.

It is not pretended that the appellant, or any one on his behalf, made the statement required by section four. Its absence bars his claim in every court either of law or equity.

For the two reasons stated—

1st. That the defendant below was in possession of the lot in question at the time of the passage of the act for the relief of the city of Denver and at the time of the entry of the lands made by the probate judge, by means of which she became and was the party by law entitled to the deed from the probate judge; and,

2d. That the appellant, by omitting to sign and deliver the statement required by section four of the Territorial statute, became barred of the right to the lands, both in law and equity—

We are of the opinion that the judgment of the court below, dismissing the complaint, was correct, and that it must be

AFFIRMED.


text: Talk:Cofield v. McClelland/Opinion of the Court


text:
Page:Dictionary of National Biography volume 59.djvu/41

 guardians. He took much interest in the treatment of Jews abroad, and in 1872 wrote a brief preface to Mr. Israel Davis's ‘Jews in Roumania,’ in which he remonstrated against the persecutions his countrymen were undergoing. He died in London on 19 June 1873, and was buried in West Ham cemetery. Waley married, on 28 July 1847, Matilda, third daughter of Joseph Salomons, by his wife Rebecca, sister of Sir Moses Haim Montefiore [q. v.] He left several children.

[Jewish Chronicle, 27 June and 4 July 1873; Law Times, 12 July 1873; Lincoln's Inn Records, ii. 179.]

WALEY, SIMON WALEY (1827–1875), amateur musician, born at Stockwell, London, 23 Aug. 1827, was younger son of Solomon Jacob Waley (d. 1864) by his wife Rachel. He became a prominent member of the London Stock Exchange and a leading figure in the Jewish community during the critical period of the emancipation of the Jews from civil disabilities. He took much interest in the subject of international traffic. At the age of sixteen he wrote his first letter on the subject to the ‘Railway Times’ (28 Nov. 1843, p. 1290), and subsequently to 22 May 1847 (p. 716) in the same journal. He contributed many letters to the ‘Times’ under the signature ‘W. London.’ To the ‘Daily News’ of 14 Oct. 1858, et seq., he wrote a series of sprightly letters on ‘A Tour in Auvergne,’ afterwards largely incorporated into Murray's handbook to France.

Waley was a highly gifted musician as well as a shrewd man of business. He began to compose before he was eleven years old, many of his childish compositions showing great promise. His first published work, ‘L'Arpeggio,’ a pianoforte study, appeared in 1848. He was a pupil of Moscheles, (Sir) William Sterndale Bennett [q. v.], and George Alexander Osborne [q. v.] for the pianoforte, and of William Horsley [q. v.] and Molique for theory and composition. In addition to being a brilliant pianist, Waley became a prolific composer. His published compositions include a pianoforte concerto, two pianoforte trios in B flat and G minor (op. 15 and 20), many piano pieces and songs; some orchestral pieces, &c., still in manuscript. One of his finest works is a setting of Psalms cxvii. and cxviii. for the synagogue service.

Waley died at 22 Devonshire Place, London, on 30 Dec. 1875, and was buried at the Jewish cemetery, Ball's Pond. He married Anna, daughter of P. J. Salomons, by whom he had eight children.

[Jewish Chronicle, 7 and 21 Jan. 1876; Grove's Dict. of Music and Musicians, iv. 376; Brit. Mus. Cat.; private information.]

WALEYS or WALENSIS. [See also .]

WALEYS, WALEIS, WALLEIS, or GALEYS, HENRY  (d. 1302?), mayor of London, was alderman of the ward of Bread Street, and afterwards of ‘Cordewanerstrete’ (Cal. of Ancient Deeds, v. 2, 250; City Records, Letter-book A, f. 116). He was elected sheriff with Gregory de Rokesley [q. v.] on Michaelmas day 1270, and the sheriffs at once had a new pillory made in ‘Chepe’ for the punishment of bakers who made their loaves of deficient weight, these culprits having lately gone unpunished since the destruction of the pillory in the previous year through the negligence of the bailiffs (, Chronicles of the Mayors and Sheriffs, 1863, pp. 127, 131). He entered upon his first mayoralty on 28 Oct. 1273, and was shortly afterwards admitted by the barons of the exchequer (ib. p. 167). At the end of November Peter Cusin, one of the sheriffs, was dismissed from his office by the court of husting for receiving a bribe from a baker, upon which the mayor, sheriffs, and all the aldermen were summoned before the council and the barons of the exchequer. The citizens answered that they were not bound to plead without the walls of the city, and that they were entitled to remove the sheriffs when necessary; their pleas succeeded, judgment being given for them within the city, at St. Martin's-le-Grand.

Waleys followed up his proceedings against the bakers by ordering the butchers and fishmongers to remove their stalls from West Cheap in order that that important thoroughfare might present a better appearance to the king on his return from abroad. Great were the complaints of the tradesmen, who alleged before the inquest that they had rented their standings by annual payments to the sheriffs (, Hist. of St. Michael, Crooked Lane, pp. 39, 40). Walter Hervey, the popular leader and the predecessor of Waleys as mayor, championed their cause at Guildhall, where ‘a wordy strife’ arose between him and the mayor, with the result that Hervey's conduct was reported to the king's council. He was thereupon imprisoned, tried, and ultimately degraded from his office of alderman (, London and the Kingdom, i. 109–10). Waleys next arrested several persons who had been banished the city by the late king four years before, but had returned. These he imprisoned in


text:
Ripley v. Insurance Company

ERROR to the Circuit Court for the Western District of Michigan; the case being this:

On the 8th of May, 1869, one Ripley took out an accident policy of insurance on his life, 'good for one day,' for $5000. It stipulated for the payment of that sum to the legal representatives of the assured, in the event of his death, from injuries effected through violent and accidental means; provided that the death was caused by an accident while the assured was 'travelling by public or private conveyance.'

After purchasing the ticket, the insured proceeded by steamboat to a village about eight miles from his residence, and from that village he walked home. While on his way he received injuries by violence, from the effects of which he died soon afterwards, and within the time limited by the policy.

The question was whether, when he received the injuries, he was 'travelling by public or private conveyance.' The court below held that he was not; and this holding was the error complained of.

Mr. George Gray, for the plaintiff in error:

In Northrup v. The Railway Passengers' Assurance Company, the contract was against accident 'while travelling by public or private conveyance,' provided for the transportation of its passengers. Yet the company was held liable though the death was caused while the party was walking from a steamboat landing to a railway station, a distance of seventy rods. This case regards the walking as part of the original journey in the public or private conveyance, and wisely; for few persons on a long journey are all the time in the railcarriages. The case does but carry out the injunction given by Cockburn, C.J., in Trew v. Railway Passengers' Assurance Company:

'We ought not to give to these policies a construction which will defeat the protection of the assured in a large class of cases.'

But, independently of this. The words 'private conveyance,' reasonably, and ex vi termini, include the case of a person pursuing a journey, or travelling, by means of his own personal powers of locomotion; his limbs with their muscles and tendons, bones and joints-the primitive universal 'private conveyance' of man. 'Conveyance' is the instrument or means of carrying or transferring anything from place to place. It is derived from con (with, by, along), and via (the way). It is used in this sense in the Scriptures, where it is said that the Saviour had 'conveyed himself away.' So in poetry,

'Love cannot, like the wind, itself convey To fill two sails, though both are spread one way.'

Howard.

And so in ordinary language and in everyday life. Should a court direct its officer to 'convey the prisoner to jail,' no one will doubt that the prisoner's walking to the place designated would be a literal and exact compliance with the order. If one were to say to an intruder, 'Convey yourself away,' the speaker would have no idea but that the party should walk off; nor would the party himself expect that anything else was meant.

Mr. H. C. Robinson, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Ripley v. Insurance Company


text: Talk:Ripley v. Insurance Company

title: Talk:Ripley v. Insurance Company


text:
Ripley v. Insurance Company/Opinion of the Court

That the deceased was travelling is clear enough, but was travelling on foot travelling by public or private conveyance?

The contract must receive the construction which the language used fairly warrants. What was the understanding of the parties, or, rather, what understanding must naturally have been derived from the language used? It seems to us that walking would not naturally be presented to the mind as a means of public or private conveyance. Public conveyance naturally suggests a vessel or vehicle employed in the general conveyance of passengers. Private conveyance suggests a vehicle belonging to a private individual.

If this was the sense in which the language was understood by the parties, the deceased was not, when injured, travelling, within the terms of the policy. There is nothing to show that it was not.

JUDGMENT AFFIRMED.


text: Talk:Ripley v. Insurance Company/Opinion of the Court


text:
Page:United States Reports, Volume 545.djvu/979

 Opinion of the Court Id., at 75–76. StreamCast not only rejected another company’s offer of help to monitor infringement, id., at 928–929, but blocked the Internet Protocol addresses of entities it believed were trying to engage in such monitoring on its networks, id., at 917–922.

B
After discovery, the parties on each side of the case cross-moved for summary judgment. The District Court limited its consideration to the asserted liability of Grokster and StreamCast for distributing the current versions of their software, leaving aside whether either was liable “for damages arising from past versions of their software, or from other past activities.” 259 F. Supp. 2d 1029, 1033 (CD Cal. 2003). The District Court held that those who used the Grokster and Morpheus software to download copyrighted media files directly infringed MGM’s copyrights, a conclusion not contested on appeal, but the court nonetheless granted summary judgment in favor of Grokster and StreamCast as to any liability arising from distribution of the then current versions of their software. Distributing that software gave rise to no liability in the court’s view, because its use did not provide the distributors with actual knowledge of specific acts of infringement. Case No. CV 01 08541 SVW (PJWx) (CD Cal., June 18, 2003), App. 1213.

The Court of Appeals affirmed. 380 F.3d 1154 (CA9 2004). In the court’s analysis, a defendant was liable as a contributory infringer when it had knowledge of direct infringement and materially contributed to the infringement. But the court read Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), as holding that distribution of a commercial product capable of substantial noninfringing uses could not give rise to contributory liability for infringement unless the distributor had actual knowledge of specific instances of infringement and failed to act on that knowledge. The fact that the software was capable of substantial noninfringing uses in the Ninth Circuit’s view meant


text:
Merrill v. Petty

On motion to dismiss an appeal from the Circuit Court for the Southern District of New York, the case was thus:

A schooner (the Mary Eveline) sailing down Hell Gate (towards New York), came into collision with a sloop (the Ethan Allen) sailing up (towards Connecticut), and sunk her. The owners of each vessel blamed the officers and crew of the other, and sought respectively relief in admiralty. The owners of the sloop which had been sunk, accordingly filed a libel, in rem, against the schooner in the Southern District of New York, claiming $3489; while there being no res for the owners of the schooner to proceed against-the sloop being at the bottom of the East River-the owners of the schooner were obliged to proceed personally against the owners of the sloop. This proceeding, which was for $2100 damages, they instituted in the Eastern District of New York; the suit of Petty v. Merrill.

Owing to the docket in the Eastern District being lighter than that in the Southern, the personal proceeding was reached first, when, as was said in one of the briefs in the case, and not denied in the other (though the fact thus alleged, and not denied, did not appear in the record), both cases by consent of counsel were heard together, on the same facts and the same proofs, without however any attempt to consolidate, in form, the two proceedings, or to transfer the proceeding in the Southern District into the Eastern one. However heard, the result of the matter was that the libel in rem, against the schooner (the proceeding in the Southern District), was dismissed in that district, while in the personal proceeding (that in the Eastern District) the owners of the sloop were there decreed guilty in $1792.84. Decrees were entered in the respective District Courts, accordingly. From both these decrees the owners of the sloop appealed to the respective Circuit Courts of the Southern and Eastern Districts.

When the cases got to the respective Circuit Courts, the order of priority which had happened in the District Courts was reversed, and in the Circuit Courts the proceeding in rem-the one against the schooner (the case of The Mary Eveline)-was first called. There again-more or less of necessity-the merits of both cases were again heard on the one appeal; and the Circuit Court for the Southern District was-as the District Courts in both had been before-of the opinion that the fault was with the sloop. It accordingly affirmed the decree in its own District Court; that is to say, it dismissed the libel.

When the appeal from the District Court of the Eastern District in the personal proceeding (Petty v. Merrill) came up to be heard in the Circuit Court for that district, the Circuit Court, deeming itself concluded by the decree in the proceeding in rem, in the Circuit Court for the Southern District, did not hear the merits anew; but examining the matter of damages, and reducing these to the extent of $500, entered a final decree for $1292.84.

From both the decrees-the one in the Southern Circuit, The Mary Eveline, and that in the Eastern, Petty v. Merrill-the owner of the sloop, Merrill, appealed.

The present motion to dismiss was in the appeal in the personal proceeding, that from the Eastern District; and was made on the ground that the amount did not exceed the sum of $2000, and, therefore, that no appeal lay.

The reader will of course remember that by the 22d section of the Judiciary Act, the jurisdiction of this court would attach only

'Where the matter in dispute exceeds the sum or value of $2000, exclusive of costs.'

Mr. F. A. Wilcox, in support of the motion:

When judgment is obtained by a plaintiff or libellant the amount in dispute is the amount of the judgment, and that decides the question of the right to appeal. Here the judgment appealed from is less than $2000; it is but $1292.84.

Mr. R. H. Huntley, contra, and against the dismissal.

1. The libel in this case is in the nature of a cross-libel. Both actions are brought to recover damages for the same collision; the facts and the witnesses are the same; the question to be determined is the same, viz., 'Which was the faulty vessel in the collision?' and both causes were tried together, and the merits of the collision in both have been argued as one.

2. The matter in dispute means the matter for which suit is brought, on which issue is joined, and in relation to which jurors are called and witnesses examined.

3. In this case the amount in dispute is found by adding together $3489, the amount of libellant's claim in the cause of The Mary Eveline, the libel in rem, and $1292.84, the amount decreed by the Circuit Court to the libellants in the personal proceeding, the cause of Petty v. Merrill, making in all the sum of $4781.84.

4. No case can be cited, where a cross-libel had been filed and the damages litigated were over $2000, in which the court denied jurisdiction.

5. If this court decides that it has discretion to entertain this motion, then the proper exercise of that discretion will he to postpone the decision of this motion until the hearing of The Mary Eveline, the proceeding in rem.

Reply: Several claims, although the same defendant may have to pay them, cannot be added to make jurisdiction, although united in the same suit.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Merrill v. Petty


text: Talk:Merrill v. Petty

title: Talk:Merrill v. Petty


text:
Merrill v. Petty/Opinion of the Court

Power to re-examine the decrees of the Circuit Courts, removed there by appeal from the District Courts, was conferred upon this court by the 22d section of the Judiciary Act, where the matter in dispute exceeds the sum or value of $2000, exclusive of costs. Such decrees, however, could only be removed here under that act by virtue of a writ of error, but the subsequent act allowing the removal to be made by appeal in cases of equity, of admiralty, and maritime jurisdiction, and of prize or no prize, contains the same limitation that the matter in dispute 'shall exceed the sum or value of $2000, exclusive of costs,' and also provides that such appeals shall be subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error.

Damages are claimed by the libellants, as the owners of the schooner Mary Eveline, against the respondents, as the owners of the sloop Ethan Allen, in a case of collision civil and maritime. They allege in their libel that the collision occurred on the 20th of September, 1868, in East River, under the following circumstances: That the schooner was beating down the river bound for the port of New York, the tide being ebb and the wind about southwest; that she had taken the channel to the east of Blackwell's Island, another schooner being just ahead of her, sailing in the same direction; that the respective schooners had beaten out the tack to the eastward, running as near the west shore of Long Island as they could safely go; that the other schooner, being ahead, went about first on the westward tack, towards the other shore, and was just in the act of going about again on her eastward tack as the schooner of the libellants went about; that it became necessary for the schooner of the libellants, in order to avoid the other schooner, to go to the leeward and pass under the stern of the other schooner, as she was making her westward tack, and they allege that their schooner had just passed the stern of the other schooner when the sloop was seen sailing up the channel to the eastward of Blackwell's Island, distant about a hundred yards on the port-bow of the schooner, sailing before the wind near the centre of the channel six or seven miles an hour, with her mainsail and jib set and going at full speed; that the schooner of the libellants was at that time going about and following the other schooner, with her head to the wind, with the head-sheets flowing and her helm hard-a-lee; that the sloop, instead of keeping out of the way, as she clearly should have done, by luffing and keeping off, as she was under full headway with her mainsail and jib set, ran into and against the schooner of the libellants, striking her cathead against the stem of the schooner, knocking her forefoot off and splitting the stem and doing other serious damage to the schooner; that owing to the sudden and confused orders given by those on board the sloop, keeping off and immediately luffing, it became impossible to avoid the collision, and that the same occurred wholly through the fault and negligence of the sloop and of those in charge of her navigation, and that it was not in any way the result of fault on the part of the schooner or of those in charge of her deck.

Service was made, and the respondents appeared and filed an answer, in which they allege that the circumstances attending the collision are not truly stated in the libel; that the collision did not occur through any fault, negligence, or mismanagement of the sloop, or of those in charge of her navigation, or through or by the sudden and confused orders given by her officers, as charged in the libel, but solely by reason of the fault, negligence, and mismanagement of those in charge of the schooner; that the sloop was sailing through East River on the east side of Blackwell's Island, against a strong ebb-tide, the wind being south-southwest, blowing a whole-sail breeze; that for the purpose of securing the benefit of an eddy-tide she was standing near the shore with her boom on her port-side; that while she was so standing on a steady course the two schooners were standing across the river on the same side of the island, to the westward; the foremost and windward of the two, having beaten out her tack, went about just abreast of the sloop at a safe distance; that the other, though to the leeward, continued on her tack after the one ahead went about, and in such a position as entirely prevented the sloop from luffing or avoiding her in any other way; that she continued her course without change until she arrived at a point ahead of and off the starboard bow of the sloop, when she put her helm down to go about, and while in the act of luffing into the wind ran into and upon the sloop, striking her at the cat-head, on her starboard side, breaking and crushing in her planking, and causing her to sink in a few minutes, and that the sloop and her cargo became a total loss.

Testimony was taken on both sides, and the District Court, having heard the parties, entered a decretal order in favor of the libellants, and sent the cause to a commissioner to report the amount of the damages. He made a report, to which the respondents filed several exceptions, some of which were sustained and others were overruled, and the court entered a final decree for the libellants, as corrected, in the sum of $1292.84 damages, and costs of suit. Appeal was taken by the respondents to the Circuit Court, but the Circuit Court affirmed the decree and the respondents appealed to this court.

Since the appeal was entered in this court the libellants, as appellees, have filed a motion to dismiss the appeal, because the matter in dispute does not exceed the sum or value of $2000, exclusive of costs, as required by the 22d section of the Judiciary Act.

Much discussion of that question is certainly unnecessary, as the rule in this court has been settled for the period of sixty years, that where the writ of error is brought by the defendant in the original action, the matter in dispute is the amount of the judgment rendered in the Circuit Court, as this court can only affirm the judgment rendered in that court.

Attempt was subsequently made, it must be admitted, to call in question the rule established in those two cases, but this court reaffirmed the rule in the most authoritative manner, deciding as follows:

(1.) That the amount required is to be ascertained and determined by the sum in controversy at the time of the judgment in the Circuit Court, and not by any subsequent additions thereto, such as interest.

(2.) That where the plaintiff sues for an amount, exceeding $2000, if by reason of any erroneous ruling of the court below he recovers nothing, or less than that sum, the sum claimed by the plaintiff in his writ and declaration in that state of the case, is the sum in controversy for which a writ of error will lie.

(3.) That if the verdict is given against the defendant for a less sum than $2000, and judgment is rendered against him accordingly, that, in that state of the case, nothing is in controversy between him and the plaintiff, if the plaintiff acquiesces in the judgment, beyond the sum for which the judgment is given, and consequently the defendant is not entitled to any writ of error.

Supported as the rule suggested is by an unbroken series of decisions throughout the period mentioned, it would seem to be a work of supererogation to attempt to enforce it by any extended argument, especially as the rule is a necessary deduction from the act of Congress which provides that such jurisdiction may be exercised by this court in the classes of cases mentioned, 'where the matter in dispute exceeds the sum or value of $2000, exclusive of costs.'

Congress, it is conceded, has not expressly enacted that final judgments and decrees in such cases shall not be reexamined here where the matter in dispute does not exceed the sum or value mentioned, but inasmuch as the appellate power of the court is conferred by the Constitution, with such exceptions and under such regulations as Congress shall make, the rule of construction is that the negative of any other jurisdiction in that respect is implied from the intent manifested by the affirmative description contained in that section of the Judiciary Act.

Opposed to this conclusion is the statement in the answer that the respondents, before the present suit was commenced, filed a libel in the District Court for the Southern District of New York for the same collision against the schooner and all persons intervening in the suit, and the suggestion of the respondents in this suit is that the libel in this case is in the nature of a cross-libel, and that the amount in dispute should be ascertained by adding to the sum allowed as damages in the decree in this case the amount of the libellants' claim in the libel in the other case, which was filed and the decree entered in the District Court for another district in the same circuit. Various reasons are mentioned in argument to show that the suggestion of the respondents may be adopted, but none of them have the support of any authority, nor do the counsel refer to any case as a precedent to warrant such a proceeding. Some of the reasons given are as follows:

(1.) That it was agreed between the parties that the two cases should be heard together, but the record contains no evidence of such an agreement, and if it did it could not avail the respondents, as it is settled law that consent cannot give jurisdiction. Several cases expressly decide that the agreement of the parties cannot authorize this court to revise a judgment of an inferior court in any other mode of proceeding than that which the law prescribes.

(2.) That the two cases were heard at the same time, before the District Court of the Eastern District, where this libel was pending. But that was a mere oral arrangement between the parties to expedite a decision, which neither did nor could have the effect to withdraw the other libel from the jurisdiction of the District Court in which the suit was commenced. One was a proceeding in rem and the other was a suit in personam, and it does not appear that any attempt was made to consolidate them or to discontinue one and transfer it into the court where the other was pending. On the contrary, though they were both heard at the same time, it appears that separate decrees were entered, each in the respective District Court where the suit was commenced. Separate appeals were also taken by the losing party in the District Court where the decree was entered, and the two appeals were separately entered on the calendar of this court.

Two suits, commenced and prosecuted as described, cannot be blended in this court without an open violation of the rule laid down by the late Chief Justice Taney, that 'parties cannot authorize this court to revise a judgment of an inferior court in any other mode of proceeding than that which the law prescribes.'

They were not heard together in the Circuit Court, as this suit was still before the commissioner, but the suggestion is that the merits in both suits were by consent discussed at the same time. Suppose that is so, still the fact remains that the respective decrees of affirmance were entered at different times and of course in the respective districts where the appeals from the respective District Courts were pending. Nothing was done to consolidate the suits and separate appeals were allowed to this court.

Evidently this court has no jurisdiction, as the matter in dispute, exclusive of costs, is less than $2000.

DISMISSED FOR WANT OF JURISDICTION.

[See the next case, in which it was decided that the fault was not with the sloop, but with the schooner; the decree from which the appeal in the preceding case was taken being thus practically reversed.]

title: Merrill v. Petty/Opinion of the Court


text: Talk:Merrill v. Petty/Opinion of the Court


text:
The Mary Eveline

APPEAL from the Circuit Court for the Southern District of New York.

On the afternoon of September 20th, 1868, the sloop Ethan Allen and the schooner Mary Eveline came in collision while navigating the East River, near Blackwell's Island. The sloop was sunk and her cargo was lost. Her owners filed their libel against the schooner and her owners, claiming as damages the value of the sloop and her cargo. The libel was dismissed in the District Court, and the decree was affirmed in the Circuit Court. The libellants appealed to this court.

Mr. R. H. Huntley, for the appellants; Mr. F. A. Wilcox, contra.

Mr. Justice HUNT stated the case and delivered the opinion of the court.

title: The Mary Eveline


text: Talk:The Mary Eveline

title: Talk:The Mary Eveline


text:
The Mary Eveline/Opinion of the Court

The Ethan Allen was going eastward through Hell Gate, on her passage to some port in Connecticut. The wind was fresh and blowing from the southwest. She was running against a strong ebb-tide, and for the purpose of avoiding the strength of the tide was running close under the eastern shore of Blackwell's Island. Her hull was within about seventy-five feet of the wall of the island, and her sails on her port side came within twenty or thirty feet of the island.

The Eveline was sailing in the opposite direction, towards New York, and was close in company with the schooner Hawley, the latter being ahead. The two schooners were beating up against the wind. On the last tack before the collision the Eveline was so close to the Hawley that when the latter tacked the former was obliged to keep off so as to go under the Hawley's stern. By the time the Eveline got well under way on the last tack the Hawley had crossed the river, and made her next tack near the Blackwell shore, and passed but a little way in front of the Allen. The Eveline passed on under the Hawley's stern, keeping off the wind for that purpose. As she luffed to go about she ran directly into the Allen, striking her on the starboard bow. The answer admits that the Eveline took a direction to the leeward and astern of the Hawley, and that she just cleared her stern. It alleges, also, that the collision occurred through the sudden and confused orders of the Allen, and especially in this: that she first kept off and then luffed, whereby it became impossible for the Eveline to avoid the collision. The prim a facie duty of avoiding the collision no doubt rested upon the vessel having the advantage of the wind. She was bound to adopt such course as would protect all the vessels, assuming that the other vessels would do their duty also. It was, however, the duty of the other vessels so to make their courses as not to render it embarrassing or difficult for the sloop to do her duty, or to make it doubtful what she should do in the emergency. The schooners were bound to take reasonable precautions on their part. The sloop, although having the wind, was not a guarantor against collision.

The channel was some 650 to 750 feet in width. The schooners were each 160 feet in length, occupying one half of the width of the channel. The Allen was close to Blackwell's Island. Her position there was not only the best for herself, but in thereby giving to the schooners nearly the whole of the channel, was the best position on their account. She kept steadily on her course as near to the island as she could safely pass. The vessels had been in sight for some time and each well understood the position of the other.

The answer alleges that the Allen should have avoided the difficulty by luffing or keeping off. It does not, however, specify which she should have done. Her hull was within seventy-five feet of the island wall, and her sails within twenty or thirty feet of the wall. This was, of itself, a hazardous proximity. It would have been very unsafe to have lessened this distance. The evidence is that she was running as close to the shore as it was safe for her to do. She could not, therefore, have kept off. If she had luffed, she would have brought herself out into the narrow channel, where the Hawley and the Eveline were both beating across in front of her, and the danger of a collision would have been much greater than by adopting the course she did.

We are of the opinion that, under the circumstances, the Allen did right in keeping her course, and that the fault was with the Eveline rather than with the Allen. If the Eveline had tacked when the Hawley did, she would have avoided the collision. This would have brought her out of the way, leaving the passage next to the island clear for the Allen. Again, she should not have changed her course by keeping away on the last tack, thus rendering necessary a larger sweep to go about and bringing her nearer to the Allen, when her course could not be changed. If she was at this point in a position of embarrassment it was her own fault. She saw it in advance, should have known it, and avoided it, by keeping further to the leeward of the Hawley, or by making her tack at an earlier period. She cannot shift upon another the consequence of an embarrassment produced by her own fault.

The captain of the Eveline did not expect the Allen to luff into the channel. He testifies that he supposed she would go to the Blackwell Island side, and that there was plenty of room for her there. He acted upon this theory, in which we think he was greatly in error, and the collision was the result.

On the most of the points of the case there is, as is usual in collision cases, a great conflict of evidence. Upon a careful review of the testimony, we think the error was with the schooner Eveline, and that the libel should not have been dismissed.

DECREE REVERSED and record remitted with instructions to enter judgment for libellants, and for further proceedings

IN ACCORDANCE WITH THIS OPINION.

[See the preceding case.]

title: The Mary Eveline/Opinion of the Court


text: Talk:The Mary Eveline/Opinion of the Court


text: Marqueze v. Bloom

title: Marqueze v. Bloom


text: Talk:Marqueze v. Bloom

title: Talk:Marqueze v. Bloom


text:
Marqueze v. Bloom/Opinion of the Court

ON motion to dismiss a writ of error to the Supreme Court of the State of Louisiana.

Marqueze & Co. brought this suit in the Fourth District Court of the Parish of Orleans, in Louisiana, on the 19th of April, 1866, against Bloom, Kahn, and Levi, trading as Bloom, Kahn & Co. The petition was for the recovery of money alleged to be due to the plaintiffs, for certain merchandise sold to the defendants during the first six months of 1861, amounting with interest, to $1045. The defendants, except Levi, pleaded the prescription of three years. Levi pleaded the same prescription, averring that at the time of the sale of the goods and since, until the commencement of the suit, he resided in the city of New Orleans. The District Court gave judgment against all the defendants. Levi alone appealed to the Supreme Court, and the judgment as to him was reversed.

The opinion of the Supreme Court was in the record, and it appeared that the only question before that court related to the interruption of prescription, and that this was decided exclusively upon the principles of the jurisprudence of the State.

No Federal question is referred to in the record or in the opinion. We have, therefore, no jurisdiction of the case, and the writ of error must be

DISMISSED.

title: Marqueze v. Bloom/Opinion of the Court


text: Talk:Marqueze v. Bloom/Opinion of the Court


text: McNitt v. Turner

title: McNitt v. Turner


text: Talk:McNitt v. Turner

title: Talk:McNitt v. Turner