text:
Thomas v. Lawson/Opinion of the Court

Mr. Justice DANIEL delivered the opinion of the court.

This was an action of ejectment, instituted by the plaintiff, a citizen of Indiana, and as sole heiress of John Crow, deceased, against James Lawson, a citizen of the State of Arkansas, for the recovery of a tract of land situated in the State last mentioned, described in the declaration, and averred to be of greater value than two thousand dollars. Pending the proceedings in the Circuit Court, Lawson, the original defendant, having died, the cause was revived against the defendants upon the record as his heirs, and upon a trial of the cause, on the 16th day of April, 1856, the jury rendered a verdict for the plaintiff, and on that verdict the court gave a judgment in favor of the plaintiff, with costs of suit. At a subsequent day of the term, the court, on motion of the defendants, awarded a new trial in their behalf; and on the 22d day of April, 1857, this cause being again heard, a verdict was rendered in favor of the defendants below, the defendants in error, and upon this verdict the court pronounced judgment in behalf of the defendants, inclusive of all the costs of suit.

In this action the defendant pleaded six several pleas: first, the general issue not guilty, on which there was a joinder; and five other pleas, all of which were either stricken out or over- [p334] ruled upon demurrer except the fifth, to the following effect: that the defendant was a purchaser of the tract of land in the declaration mentioned, at a sale made by the sheriff and collector of the revenue of the county in which the said land was and is situated, for the non-payment of the taxes assessed and due thereon, and that he has held the peaceable, adverse, and uninterrupted possession of the said land under and by virtue of his said purchase for more than five years next before the commencement of this suit. On this fifth plea, also, issue was joined.

Upon the trial in the court below, the plaintiff gave in evidence a patent from the United States, bearing date on the 1st day of February, 1821, to the plaintiff and others, heirs of John Crow, deceased, for the land in contest, which patent was read without objection, the titles of both plaintiff and defendants being deducible from that act of the Government. The plaintiff further proved that she was the only surviving child and the sole heir of John Crow, and was the widow of James Thomas, who died in the year 1840; and that from the year 1839 she had resided in the State of Indiana, and was a citizen of that State. The plaintiff further proved the possession of Lawson, the ancestor of the defendants, of the land at the time of the institution of this suit, and his refusal to surrender possession to the plaintiff. And here the plaintiff rested her case upon the evidence.

The defendants, in support of their title and right of possession, offered in evidence a deed, bearing date on the 2d day of November, 1846, from W. B. Borden, at that date sheriff, and as such ex officio assessor and collector of the taxes for the county of Pulaski, in which county the lands in contest are situated, conveying those lands to the ancestor of the defendants.

In this deed it is recited, that in the year 1824, in conformity with the laws in force in the then Territory of Arkansas, the lands in contest, with several other parts of sections, all situated in the county of Pulaski, were by the sheriff, as ex efficio assessor and collector for the county, assessed for the taxes payable thereon for that year. That in conformity with the law, and within the time thereby prescribed, the sheriff, as ex [p335] officio assessor and collector, filed in the office of clerk of the County Court a list of lands and town lots owned and assessed to persons then residents of said county, in which list the lands in the said deed were embraced; that a copy of the list so made and filed was by the said officer put up at the door of the court-house of said county, and published in the Arkansas State Gazette, a newspaper printed in the Territory, for four weeks successively before the day of sale, as prescribed by law. That the sheriff as ex officio assessor and collector, in like conformity with law, on the 1st day of November, 1824, exposed and offered for sale, at the court-house of the said county, at public auction, the several parcels or parts of sections of land above mentioned, for the payment of the taxes, and the penalty payable upon the amount of those taxes. That Thomas Newton became the purchaser of the several parcels of land, and transferred his certificate of his purchase of those lands to James Lawson. That the sheriff, as ex officio assessor and collector, made out and delivered to the purchaser a certificate of purchase containing the requisite description of the taxes and penalty on the lands listed for taxation, and that the amount was paid by Newton, the purchaser. That one year having elapsed since the sale by the sheriff, and that Newton, by James Lawson, having presented to Borden, the sheriff and ex officio assessor and collector, the certificate of purchase, and requested a deed to Lawson from the sheriff, the deed from Borden, as sheriff, &c., was made to Lawson.

The defendants next offered in evidence, under the certificate of the clerk of the Circuit Court of Pulaski county, a copy from the records of that court of the acknowledgment in open court, on the 13th of July, 1849, by Borden, as late sheriff and collector of Pulaski county, of the deed executed by him to Lawson for the several parcels of land therein described, including the land in controversy, as having been sold by the predecessor of said Borden as sheriff and collector, under and by virtue of a levy and distress made upon such tracts of land to secure the payment of the State and county taxes, and the penalty and costs and charges due for the years 1824 and 1825.

[p336] The defendants also proved that Thomas Newton, by a deed bearing date on the 21st of May, 1846, assigned and conveyed to James Lawson, in his lifetime, all the right, title, interest, and claim, in and to the lands purchased by Newton of the sheriff in the year 1824, and embraced in the deed from Borden, sheriff, &c., to Lawson.

The defendants then offered the record, duly certified, of the proceedings on the chancery side of the Circuit Court of the county of Pulaski, on the 20th day of February, 1850, upon a petition in the name of James Lawson in his lifetime, setting forth the several facts and transactions recited in the deed from Borden to Lawson, and also the execution and recording of that deed; and further setting forth that he, Lawson, after the time allowed by law for the redemption of said lands, and more than six months before the commencement of the then present term of this court, caused a notice stating the authority under which said sheriff's sales took place, and also containing the same description of the lands purchased as that given in said sheriff's deed, and declaring the price at which said tracts were respectively bargained, the nature of the title by which the same are held, and calling on all persons who could set up any right to any part of said lands, in consequence of any irregularity or illegality connected with said sales, to show cause at the first term of the Circuit Court of said county, six months after the publication of said notice, being the present term of the court, why the respective sales so made should not be confirmed, pursuant to a petition to be filed in this court for that purpose, to be inserted and published in the Arkansas State Democrat, a newspaper published in Little Rock, for six weeks in succession, the last insertion to be more than six months before the commencement of the present term of this court, as by affidavit of the publisher, setting forth a copy of such notice, with the date of the first publication thereof, and the number of insertions sworn to and subscribed before a justice of the peace of said county, and properly authenticated and filed with said petition, fully appears to the court, and concluding with the decree of that court in the following words:

"[p337] "Whereupon all and singular the allegations made in said petition being by the production of said deeds and due proofs of the publication of said notice, proven and established to the satisfaction of the court here, and no cause having been shown against the prayer of said petition by any person whomsoever, but the said application being and remaining wholly undefended—

"It is therefore considered and adjudged and decreed by the court here, that said sheriff's sales, and each of them, be, and the same are hereby, in all things confirmed, according to the statute in such case made and provided; and further, that this decree shall operate as a complete bar against any and all persons hereafter claiming said lands, or any part thereof, in consequence of any informality or illegality in any of the proceedings aforesaid, and that the title of each of said tracts of land be decreed and considered as hereby confirmed and completed in said James Lawson and his heirs and assigns forever; saving, however, to infants, persons of unsound mind, imprisoned, beyond the seas, or out of the jurisdiction of the United States, the right to appear and contest the title to said lands, within one year after their disabilities may be removed. And it is ordered that the petitioner pay the costs thereof.""

To the admission of this record, the plaintiff in the Circuit Court objected, but the court permitted it to be read in evidence. The deed from Borden, sheriff, to Lawson, of the 2d of November, 1846, was also objected to by the same party, but was allowed to be given in evidence to the jury.

Several prayers for instruction were presented, both by the plaintiff and the defendants, and decisions thereon were made by the court. We shall consider the following only, as comprising the real merits of this controversy:

The objections urged against the admission of the deed from the sheriff to Lawson were—

1st. That the deed and the certificate of its admission to record bore upon their face unmistakable evidence of fraud. What those clear marks of fraud upon the face of those documents were, is not stated with sufficient particularity, in order to a correct comprehension of their character. The court to [p338] whom this objection was presented must have decided upon an inspection of the papers, (probably correctly;) but whether correctly or otherwise, this court cannot now inquire, in compliance with assertions altogether vague, and pointing to no specific vice in any one of those papers. This first objection, therefore, to the admissibility of the deed is of no force.

But the deed from Borden was further objected to, because, as it was alleged—

Secondly. That there was no valid proof of the execution of such paper as a deed.

Thirdly. There was no proof of the authority of the said William B. Borden to execute such deed, or that he was, at the date of its execution or acknowledgment, collector of taxes in and for said county of Pulaski.

Fourthly. It was not accompanied by proof that the said tract of land in controversy was either assessed, or taxed, or advertised, or legally sold, in the year 1824, for taxes, or that the said Henry Armstrong, as such alleged sheriff, assessor, and collector, in the year 1824, had any authority to assess said tract of land for taxation, or to sell it for the non-payment of such taxes.

Fifthly. That such paper, purporting to be such deed, was not admissible in evidence until it should be first proved that all the material steps required by law, preparatory to and in the assessment and taxation of said tract of land, and in the advertisement and sale thereof in the year 1824, and all previous steps required by law prior to the execution of such deed, had been complied with, either by record evidence or by evidence in pais.

These four objections are met and overcome, first, by the language of the statutes of Arkansas; and secondly, by the interpretation given of those statutes by the Supreme Court of that State. By the law of Arkansas regulating conveyances, (vide Digest of the Laws of 1848, by English and Hempstead, p. 268, sec. 26,) it is declared that "every deed or instrument of writing conveying or affecting real estate, which shall be acknowledged or proved and certified as prescribed by that act, may, together with the certificate of acknowledgment, be [p339] recorded by the recorder of the county where the land to be conveyed or affected thereby shall be situate; and when so recorded, may be read in evidence in any court in this State without further proof of execution." Again, in the same Digest, (pp. 888, 889, sec. 112, title R,) it is declared, with respect to sales and conveyances made by the sheriff and collector for the non-payment of taxes, that "the deed so made by the collector shall be acknowledged and recorded as other conveyances of lands, and shall vest in the grantee, his heirs or assigns, a good and valid title, both in law and equity; and shall be received in evidence in all courts of this State as a good and valid title in such grantee, his heirs or assigns, and shall be evidence of the regularity and legality for the sale of such lands." Again, (p. 889, sec. 114,) it is provided, "that if any collector shall die or be removed from office, or his term of service expire, after selling any land for taxes, and before making and executing a deed for the same, the collector then in office shall make and execute a deed to the purchaser of such lands, in the same manner, and with the like effect, as the officer making such sale would have done."

By another provision of the statute of Arkansas, a like power to that previously mentioned as vested in the sheriff, with respect to delinquent lands, is conferred upon the auditor of public accounts, and, in the exercise of that power by the latter officer, the provisions of the statute, both as to the acts to be performed, and the consequences to ensue from those acts, are substantially and almost literally identical with those relating to the proceedings by the sheriff.

Thus, (Dig., p. 893, sec. 141,) it is enacted that "the auditor shall execute, under his hand and the seal of his office, and deliver to each person purchasing lands or lots at such sale, a deed or conveyance, in which he shall describe the lands or lots sold, and the consideration for which the same were sold, and shall convey to the purchaser all the right, title, interest, and claim, of the State thereto;" and by section 142, "the deed so made shall vest in the grantee, his heirs or assigns, a good and valid title, both in law and equity, and shall be received in all the courts of this State as evidence of a good and valid title [p340] in such grantee, his heirs or assigns, and shall be evidence that all things required by law to be done to make a good and valid sale were done, both by the collector and auditor."

In the interpretation of this provision in pari materia, the Supreme Court of Arkansas, in the case of Merrick and Fenno v. Hutt, (15 Arkansas Reports, p. 338,) say: "A more comprehensive provision could hardly be found, and it might seem, at first view, to make the tax title derived from the auditor valid against all objections. But that was not the design. The evil to be remedied was, that the entire burden of proof was cast on the purchaser, to show that every requisite of the law had been complied with, and the deed of the officer was not even prima facie evidence of the facts therein stated. The general and prevailing principle was, that to divest the owner of land by a sale for taxes, every preliminary step must be shown to be in conformity with the statute; that it was a naked power, not coupled with an interest, and every prerequisite to the exercise of that power must precede it, and that the deed was not prima facie evidence that these prerequisites had been observed. The intention and scope of the statute were to change this rule so far as to cast the onus probandi on the assailant of the tax title, by making the deed evidence of the title of the purchaser, subject to be overthrown by proof of non-compliance with the substantial requisites of the law. Proof, then, that any of the substantial requisites of the law had been disregarded, or that the taxes have been paid, no matter by whom, would be sufficient to destroy the tax title, whether emanating from the auditor or the collector. The deed of the auditor is not required to contain recitals. All that is necessary is to describe the property sold, and the consideration, and to convey to the purchaser all the right, title, interest, and estate, of the former owner, as well as all the right, title, interest, and claim, of the State, to the land."

The same exposition of the statutes of Arkansas, and of the policy and necessity in which those statutes have had their origin, is given in the case of Pillow v. Roberts in this court reported in the 13th of How., 472. The deed, then, from the sheriff and Collector Borden to Lawson, was clearly prima facie [p341] evidence of the assessment, taxation, and forfeiture of the land; of the regularity of every proceeding previously to the sale of the land forfeited; of the competency of the officer making the sale and conveyance; of the legal validity of the sale; and cast upon the assailant of any of these prerequisites the burden of showing the absence or defectiveness of any of them. And without such a showing, that which was prima facie proof will be taken as conclusive.

But every question with respect to the assessment of the lands in controversy, or the non-payment of the taxes, or the regularity of the proceedings of the sheriff and collector, inclusive of the execution and recording of the deed from that officer, seems to have been concluded by the petition of the purchaser on the chancery side of the Circuit Court of Pulaski county, and the decree of confirmation pronounced upon that petition as herein already mentioned.

The provisions of the law by which this petition by the purchaser from the sheriff or auditor of lands sold for the non-payment of taxes, and by which the proceedings upon such a petition, and the effect of a decree of confirmation pronounced thereupon, are contained in the Digest of the Laws, pp. 966, 967, under the head of Tax Titles, sections from one to six, inclusive. By the section last mentioned (6th) it is declared, that the judgment or decree confirming said sale shall operate as a complete bar against any and all persons who may thereafter claim said land in consequence of informality or illegality in the proceedings, and the title to said land shall be considered as confirmed and complete in the purchaser thereof, his heirs and assigns, forever. The decree of the Circuit Court of the county of Pulaski, before referred to, expressly sets forth a compliance with every requisite prescribed in the aforegoing six sections of the statute, including the notice by publication calling on all persons to show any objection to the purchase from the officer, in consequence of informality, irregularity, or illegality connected with the sale of the lands; the failure of any contestant to appear in obedience to such notice, and the expiration of the time limited in the saving reserved in behalf of those of whom exception is made in the statute.

[p342] Upon an inspection of the proceedings in the court of Pulaski, the court below was of the opinion that it constituted a valid title in the defendant against the whole world, and charged the jury that "it divested the title of the plaintiff, and that since the rendition of said decree she had no title to the said tract of land, unless she has, since the date of the said decree, obtained title thereto from or under the said James Lawson, or unless such decree was obtained by fraud."

Of the effect of a decree of confirmation like the one in this case there exists no doubt under the construction of the statutes of Arkansas by the Supreme Court of that State, as declared in the case of Evans & Black v. Percifull, (5th Arkansas Rep., 425.) The court in that case held the decree to be conclusive, although they thought it erroneous; yet, inasmuch as it had not been reversed for error, they ruled that it could not be collaterally impeached; and they say, in express terms, that had there been no deed from the officer, in fact, the decree would have been conclusive of the sufficiency of the evidence to warrant it.

In the case of Parker v. Overman, in 18 Howard, 140, this court, commenting upon the statute of Arkansas, has said: "In case no one appears to contest the regularity of the sale, the court is required to confirm it on finding certain facts to exist; but if opposition is made, and it should appear that the sale was made contrary to law, it became the duty of the court to annul it. The judgment or decree in favor of the grantee in the deed operates as a complete bar against any and all persons who may thereafter claim such land in consequence of any informality or illegality in the proceedings. The jurisdiction of the court over the controversy is founded on the presence of the property, and like a proceeding in rem it becomes conclusive against the absent claimant as well as the present contestant."

This interpretation of the statutes of Arkansas is fully coincident with that propounded by the cases of Merrick & Fenno v. Hutt, and of Evans & Black v. Percifull, already cited; and sustain the correctness of the instructions of the Circuit Court as to the effect of the decree of confirmation of the Circuit Court of Pulaski county.

[p343] A question was raised in the Circuit Court, as to the effect of the five years' statutory limitation upon the rights of the parties; as, for instance, whether that statute would begin to run from the date of the deed of the sheriff or from the period of the recording of that deed, or whether it could operate at all upon a constructive seizin effected by the sheriff's deed, or required, in order to give it effect, an actual seizin by the purchaser from the sheriff. This question we do not deem it necessary, or even regular, in this case to discuss or determine. In the first place, the rulings of the court below with regard to it were in favor of the plaintiff in error, and therefore can constitute no wrong or gravamen on his part. In the next place, we consider that question embraced and concluded, or rather excluded, by the proceedings in chancery against the property, and the confirmation of the title by the decree.

The judgment of the Circuit Court is affirmed.

title: Thomas v. Lawson/Opinion of the Court


text: Talk:Thomas v. Lawson/Opinion of the Court

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


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Page:Copyright, Its History And Its Law (1912).djvu/184

, either before putting the book on the market or before circulation, or upon publication, or else within a specified time after publication, ranging from ten days in the case of Greece to two years in the case of Brazil, while in several countries no specific time is mentioned. In Italy, if no deposit of a registered work is made within ten years, the copyright is considered to be abandoned. The number of copies required varies in the several countries from one to six. In some countries specific formalities are required to establish the beginning of the term of protection for collective or posthumous works, etc., or in connection with the disclosure of the author's name on anonymous or pseudonymous works. Spain, Colombia and Panama, and Costa Rica have a curious provision that if a work is not registered within one year from publication the copyright is forfeited for ten years, at the end of which period it may be recovered by registration. Canada and Newfoundland, following the United States precedent, Australia, Holland and the Dutch colonies, and Siam require manufacture within the country. In several countries penalty for failure to deposit is provided, the limit being usually the value of a book and a sum not exceeding £5, or in France 300 francs. The deposit of a photograph or sketch of a work of art is in many countries required for purposes of identification.

International copyright throughout the countries of the International Copyright Union and the Pan American Union, if the Berlin and Buenos Aires conventions are ratified throughout, will depend, as now it depends for most countries, entirely on the formalities in the country of origin.


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McKinlay v. Morrish

THIS was an appeal from the Circuit Court of the United States for the districts of California, sitting in admiralty.

The libel was filed in the District Court for the northern district of California, which after hearing dismissed the libel; and upon appeal to the Circuit Court, the decree was affirmed. The libellants then brought the case to this court.

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

It was argued by Mr. Lord for the appellants, and Mr. Brent and Mr. Johnson for the appellees.

The counsel for the appellants contended that the injury did not proceed from the gale occurring shortly after the ship left Liverpool, nor by the heavy weather on the passage around Cape Horn. From that time until the arrival at San Francisco, they met with no heavy weather. The evidence does not show that the damage arose from the sweat of the ship. The perils of the sea not being established, and the cargo being badly damaged, it is for the ship to show everything well done on her part before she can resort to other causes. (See 12 Howard, 280.) The ship was bound to show proper stowage; the evidence is, that the stowage was not proper. The evidence is, that the damage arose from the want of proper caulking, and the leaks thus opened by the heat of the long summer voyage, all which could have been caulked at sea. The evidence is not satisfactory that the damage arose merely from the damp of the soap under the ordinary events of such a voyage.

There is no limitation in the pleadings restricting the libellants in charging the ship as to the cause of the confessedly damaged condition for the cargo. The ship must affirmatively both plead and prove her justification.

The counsel for the appellees contended that the consignees had no right to institute the suit, having repudiated the consignment, and therefore having no interest in the property; that there was no breach of contract on the part of the ship, which was stanch and strong when she started, but met with heavy gales in the Bay of Biscay and at Cape Horn; that the damage to the soap was caused by sweat; that is, by the evaporation of water in the soap, surrounding the boxes with a damp atmosphere; that the soap was an inferior article, and the voyage unusually long.

Mr. Justice WAYNE delivered the opinion of the court.

title: McKinlay v. Morrish


text: Talk:McKinlay v. Morrish

title: Talk:McKinlay v. Morrish


text:
McKinlay v. Morrish/Opinion of the Court

This is the case of a foreign vessel having been libelled in a port of the United States when about to leave it; her master having refused to pay for the damage said to have been sustained on a shipment of soap, made at Liverpool, to be carried to San Francisco, California, via Honolulu. The shipment was made by Matthew Steele & Son. It was said in the bill of lading to be in good order and condition, and the undertaking was to deliver it so to Messrs. McKinlay, Garriock, & Co., or to their assigns.

The consignees libelled the ship, alleging that, though they were always willing to receive the shipment in good order, the master of the ship had not made it, and that they had refused to receive it, on account of the injury it had sustained from a want of proper care in loading, storing, landing, re-landing, and re-storing the soap, and owing to the careless, negligent, and improper manner of storing it under the deck of the ship, which was open and leaky, through which water passed, and damaged it to the amount of nine thousand five hundred dollars.

The respondent meets the charges by a direct denial of them, averring if the soap had been in any way injured, it may have been from causes beyond his control by any care whatever, and should be attributed to causes or perils excepted to, as they were expressed in the bill of lading, viz: 'all and every danger and accident of the seas and navigation of whatsoever nature.' The respondent also declares that his ship was, at the time of her sailing from Liverpool, in good, tight, and strong condition, well manned, and that her cargo was well dunnaged and stowed; but that, in the course of the passage to Honolulu, she encountered heavy storms and gales, which strained and caused her to leak, and had compelled him to throw overboard a part of the cargo, for the preservation of the rest of it, and of the vessel; and that during the passage he had used every precaution to preserve the cargo that was within his power and that of his officers and crew.

The libel and answer are directly at issue, and no answer can be made more responsively to the charges in a bill than this is.

Accordingly, then, to the rules of pleading in admiralty, there is no necessity for doing so; nor are we permitted to consider much of the testimony in this record. When litigants make their case in express allegations and by express denials of them, and then introduce testimony inapplicable to the issues they have made, it is not a part of the case, unless as it shall inferentially bear upon other evidence properly in it, upon which the parties rely for the determination of their controversy. This case furnishes as apt an illustration of the rule just mentioned as can be given. The libellants put their case upon bad and careless stowage, &c., of the soap, and upon leaks in the deck of the ship, through which water passed and damaged it. The respondent denies both; but he goes on to state that his ship was tight and strong for the voyage when he left Liverpool, and both parties question the witnesses as to that fact; though the libellants had not charged that their goods had been injured from that cause, and had not put in issue at all the soundness and seaworthiness of the ship for the voyage she was about to make. This same point of pleading was before this court in the case of Lawrence v. Minturn, 17 Howard, 100, 110, 111, which was as learnedly argued, and as deliberately decided, as any other case in admiralty has been in our time. This court then said: 'We find the conduct of the master in making the jettison to have been lawful; and the remaining inquiry is, whether the necessity for it is to be attributed to any fault on the part of the master or owners. The libel alleges the loss of the goods to have been through the mere carelessness (just as the libel in this case does) and misconduct of the master and mariners. We were at first inclined to the opinion that this allegation is not broad enough to put in issue what the libellants have at the hearing so much insisted upon, and what we think is the main question in this part of the case, the sufficiency of the ship to carry the cargo. It is no doubt the general rule, that the owner warrants his ship to be seaworthy for the voyage with the cargo contracted for. But a breach of this implied contract of the owner does not amount to negligence or want of skill of the master and mariners. There would be much difficulty, therefore, in maintaining, as a general proposition, that an allegation of negligence of the master would let in the libellant to prove unseaworthiness of the vessel.' And in the next paragraph of that opinion, page 111, it will be seen that the rule of pleading in such cases was not enforced only upon the ground that the inquiry in that case necessarily led to an examination whether the jettison was occasioned by the negligence of the master in overloading the ship.

It was a nice distinction, but a true one, and it will have its influence hereafter upon other cases having the same difficulties as that had. It has been adverted to, to warn the profession that the irregularities of pleading in admiralty, now too frequently occurring, have attracted our attention, and will be treated hereafter according to the rules and practice for pleadings and proofs in admiralty cases. Without doing so, the jurisdiction of admiralty may often be practically extended to controversies not belonging to it; and though that may be inadvertently done, it will not be the less mischievous.

With this rule in view, we will not examine much of the testimony in the case before us, though it was made much of the argument of the respective counsel representing the parties. It excludes from the merits of the case all in the record relating to the storm in the Bay of Biscay, the leak which it caused, and the repair of it. Both parties have treated it, by their pleadings, as having in no way caused any damage to the soap; also, the storm which afterwards tried the seaworthiness of the ship to the utmost, when she was weathering Cape Horn, without any diminution of it, except so far as to inquire if it could have been that the seas which she then shipped had damaged the soap, by the water passing through the seams of a deck imperfectly caulked. And we exclude, also, all that testimony made up of the opinions of supposed experts in regard to the causes of the alteration in the quality of the soap, excepting such of them as are sustained by facts which have the character of legal proof.

By treating the case in this way, the controversy becomes exclusively one upon the alleged want of proper care in stowing, &c., the soap; and upon the charge made against the captain of the ship, that he had negligently allowed the seams of her deck to be in an open and leaking condition, by which water had passed through them upon the soap.

Our examination of the case has been made accordingly. It will be found to coincide with the admissions made in his argument by the learned counsel of the appellants. Two of his points were, that the injury or change in the quality of the soap was not owing to the effects of the gale occurring in the Bay of Biscay, shortly after the ship left Liverpool, though it had produced a leak; next, that the heavy weather on the passage around Cape Horn did not produce any leak nor do any injury to the tightness of the ship, reserving, however, the charge that the water which she then shipped had passed through the leaks in her deck, and damaged the soap. Then, after stating other propositions of obligation upon the ship, before she could be released from liability, and omissions of duty by the captain, and the proofs which were necessary to excuse them, which he contended had not been made, the case was put altogether upon bad stowage, and the leaks in the deck, as both had been alleged in the libel.

First, as to the stowage. Two witnesses were examined, both of them professing to know how soap in boxes should be stowed for a long passage. They say that the stowage was improper, on account of the boxes having been placed or piled in tiers in one part of the ship, and that they were stowed up to the main deck, and not chocked. One of them added, that regard should be had, in stowing, to the nature of the goods to be stowed; that soap should not be stowed in so solid a bulk as this was, but should have been distributed more over the ship. Waterman, another witness, who had never seen the ship, and of course knew nothing of the stowage, merely said that soap stowed twenty-five tiers deep, he should think was badly stowed, and would be apt to be injured. Such is the whole of the testimony to prove bad stowage in this case, unless the opinions of other witnesses, expressed in the course of their examination, without any facts having been given by them to sustain their opinions, are taken as evidence. On the other hand, Nicholson, a man of more than thirty years' experience as a nautical man, who visited the ship by the invitation of the port warden, to examine the soap, and who went into the hold for that purpose, says, in answer to the question, 'How was the cargo stowed? Some of the boxes appears to me to be re-stowed. I do not think the upper part was the original stowage. There were a great number of them in sight, and the cargo seemed to me to be very well stowed.' Noyes, who was called upon, as port warden, to survey the ship, and two days afterwards to survey the cargo, says the soap was stowed in the after part of the ship, abaft the after hatch. It was all stowed together, and well stowed. Then Lowry, the stevedore who discharged the cargo of the ship, who saw her hatches opened, says the soap was well stowed.

There are differences between the witnesses as to the stowage of the soap, but not contradictory assertions. As to credit, they stand alike. But there is a distinction in their declarations, which, with us, is conclusive. The three first named speak of the manner of stowage, with reference to the effect which might be produced upon soap in boxes, stowed in a vessel in tiers, as these boxes were. Without a word of proof from themselves, or from any one else, or from Mr. McCulloch, the chemist, who was called upon by the libellants to analyze the soap as it them was, to show the correctness of the apprehension or opinion of the witnesses, that, from the composition of soap, it was liable to deterioration from being stowed in a mass in the hold of a vessel, and without any evidence that it was customary to stow soap, in boxes, differently. The other three witnesses speak of it as a nautical stowage, and, without any qualification, say that the soap was well stowed. Our conclusion is, that the soap was not injured as a consequence from having been stowed as it was.

We proceed to the consideration of the second charge in the libel. It is also an imputation of negligence upon the captain of the ship. It is, that the soap had been injured by the deck having been allowed by him to remain in an open and leaking condition, whereby the water thrown or falling on it passed through upon the soap beneath. It is indefinite as to the time when the leaking of the deck occurred, and uncertain as to the extent of it, but determinate enough to suggest the kind and quantity of testimony which is necessary to sustain such charge in the circumstances under which it has been made. The seaworthiness of the ship when she began the voyage not having been questioned in the libel, it must be taken that she was tight in her deck when she left Liverpool, and, if she became otherwise afterwards, that it must have occurred when she was at sea. There is no direct proof of it in the record, nor any cause, from tempest or storm, from which such an injury to the ship can be presumed. The burden of proof of such an allegation is upon the libellants, and the testimony to sustain it must be positive, or so violently presumptive as to be sufficient, by the rules of evidence, to supply the want of direct proof. Here there is no proof, positive or presumptive, when, where, or from what cause, the leaking of the deck happened, or had been made. None that it had been, or might have been, occasioned by any straining of the ship from the storms which she had encountered on her passage. Indeed, that is disclaimed. None that the oakum with which her decks were caulked had washed out of the seams of it, or that it had shrunk so as to leave them open. And it was only suggested that they were opened by the heat of a long summer passage, and that they could have been recaulked after.

The suggestion is in opposition to the proofs in the case. The ship sailed from Liverpool on the 26th of September, stanch and tight, and arrived at Valparaiso on the 26th or the 27th of January following, just four months and a day from the time of her sailing. The slight injuries which she suffered from the storm in the Bay of Biscay, and those encountered off Cape Horn, were repaired at Valparaiso. Thence she went to Honolulu, on the 28th of February, where she was twenty-four days, and caulked there her top-sides and water-ways, and she arrived at San Francisco on the 7th June, having had fine weather all the way from Valparaiso. But it is proved that the soap could not have been injured from any leaks in her top-sides or water-ways, as the tiers of boxes next to them on either side were in a better condition than those which had been piled further off. These dates show that the ship had not a longer passage to Valparaiso than is usual at the time of year when she was making it; also, that it had been made through different latitudes, without encountering any great continuous heats-certainly not such as could have had the effect to displace or shrink the caulking of the deck into leaking, which is not denied to have been good and tight when the ship left Liverpool. It is not probable that such an exposure for so short a time had forced her deck seams. Besides, it has not been shown by any reliable testimony that there had been, at any time when the ship was on her way to Valparaiso, any leaking from her deck, or any such afterwards, until her arrival in San Francisco, from which by any possibility the soap could have been injured in the way and to the extent it was represented to have been by some of the witnesses, who expressed the opinion that there had been leaks in the deck of the ship, through which salt water had leaked upon the soap. Indeed, it appears to us that all of the witnesses who said so, did it rather by way of inference from the caulking which another witness said had been done to the ship, and from the condition in which the soap was, than from an examination of the ship. The witness Goodsell, more relied upon than any other witness to prove the leaks in the deck, does not do so satisfactorily from the usual examination made by shipwrights when they are called upon to ascertain such a fact. He says: 'I found the poop-deck, lately caulked, leaking on larboard side-six on starboard and one seam about half on the starboard side, to main deck. I should think that the water-way seams, plank-shear seams, and one or two seams inside to main deck, or main deck, looked as if water had run down into the hold of the ship on both sides.' He adds, he went into the hold of the ship and examined the under part of the deck. 'I saw indications of the deck having leaked in the wake of the seams I have been speaking of; they looked as if they had leaked all along, but more abaft than forward of the main deck.' This is very uncertain testimony; more of opinion than fact in it, even as to the caulking of which he speaks, and the result of all that he says concerning the seams below the deck, has more of inspection in it than of examination. The difference between them will readily be recognised from the positive language of two other witnesses, who say they examined the seams of the deck below with their knives, and found them hard; one of them adding, it is impossible for a man to tell, after two or three weeks, whether a vessel is newly caulked, without trying her seams. Lowry, the stevedore who discharged the cargo, upon being asked if he had seen any traces of salt water in the top of the boxes of the soap, or on the ceiling of the deck, answers that he had not, but that he saw some places marked with chalk by some persons; that he tried them with his knife, and found them perfectly tight. Such is the testimony in the case, concerning the charge in the libel that the soap had been damaged by leaks in the deck of the ship, which her captain had neglected to have caulked. In our opinion, it is altogether insufficient. Noyes, the port warden, who surveyed the ship, says he could find no leaks over or above where the soap was, that he could discover. He also saw no traces of the deck having been recently caulked. Indeed, there is not a witness who has said that there were leaks in the deck. Several express the opinion that there were, from the discoloration of the boxes on them outside, and from that of the soap in them. Goodsell ventures further than any other witness, to cause such an impression; but his language is, 'I should think,' and it 'looked' to him as if water had run down into the hold from the water-way seams, the plank-shear seams, and one or two seams inside, to deck or main deck. This conjectural way of speaking by a witness must yield to the positive declarations of Nicholson, Lowry, and Noyes.

Having determined that the soap had not been injured by bad stowage or leaking from the deck, we will now briefly state to what causes its altered condition should be attributed. We have concluded that its discoloration and dampness are to be found in the acknowledged facts and proofs in the cause. The shipment was made at Liverpool on the 21st June, and was on board of the ship for a year, less fourteen days. After the shipment and stowage, the ship remained all of the summer at the dock in Liverpool. She sailed on the 26th of September. From that time the ship's hatches were closed until her arrival at Honolulu, in February. They were then opened for the purpose of discharging a part of the cargo which had been shipped for Honolulu. To do that, it was necessary to remove about three hundred boxes of the soap from their stowage, and to land them. They were taken to the ship, re-stowed as they had been at first, and it does not appear by any evidence that it had been perceived at Honolulu by any one that this upper tier so removed had been injured, or that the boxes had then any appearance of water having leaked upon them. The ship sailed from Honolulu and arrived at San Francisco on the 7th June. From the day of her sailing, the 26th September, she was at no time within such a temperature of heat as would of itself have impaired the quality of the soap. From England, in 10° north of the equator, the average temperature from the time of her sailing is 62°. Ten degrees north and south of the equator the average temperature for the months of September and October is 81°.

The average temperature is November is about 41°, and that of Valparaiso is about 62°. These averages of temperature are taken from the most approved charts, and are decisive that the soap has not been injured by the temperatures through which the ship passed on her passage to Valparaiso. From that port the ship came to Honolulu, a distance not much short of six thousand miles, in the most favorable weather, without encountering heavy seas or head winds. She made that distance in the usual time, forty-five of fifty days. Honolulu is in the latitude of 21° 19' north, longitude 157° 52' west. Nor are the temperatures such between Valparaiso and Honolulu as could have produced any change in the condition of the soap. From Honolulu the usual run to San Francisco is from fifteen to twenty days. As a general rule, the course of ships bound from the first to San Francisco would be to the northward of it, to be sure of good winds. In the absence, then, of other probable causes, to account for the change in the quality of the soap, we must resort to the proofs on the record, and from them we have concluded that the soap was injured by the temperature of the ship's hold, or what is called the sweat of the ship, which no mode of ventilation, consistent with safe navigation, has yet been thought sufficient to prevent. In this particular the ship was not more liable from defective construction to this vapor than merchant vessels ordinarily are. Her hatchways were good, the covers for them are not complained of, her hatch-bars and tarpaulings were sufficient, or they are not denied to have been so; and it has not been suggested that they were not all applied to cover the hatchways, and to protect the cargo from sea-water and rain. Nor is this sweat in ships any mystery to practical seamen. They term it to be vapor emitted from the mixed cargoes of ships by the heat of the hold of a ship, cast off sometimes only in fumes, at other times in steam, which shows itself in the latter case sometimes in drops of water in the same way as rain is produced from vapor. Several of the witnesses-all of them were accustomed to the sea-say, that the sweat of this vessel caused the discoloration of this soap. Besides, it was a second-class article, differing originally in color from a first-rate article of the same kind. It is true that the chemist who analyzed it says that it had been made of good materials, and was well saponified, and he says that sweat is a mere evolution of water in a state of vapor; and that the boxes could not have been stained in that way, and that they were stained by some external means. But the proofs in the case show that there was no leakage in the deck by which water could have passed upon them; it must yield to the declarations of those witnesses better acquainted than he is, from their professional acquaintance with the effects of the sweat of the soap upon these cases. We unhesitatingly ascribe the discoloration and dampness of the soap to the rocking of the ship, the nature of the compound of soap, and to the long agitation of the soap in the boxes to which it had been subjected in a boisterous passage. The devaporation of water from the vapor of the soap itself, with which it is cleansed in the making, heated by the sweat of the ship, would be concentrated in the boxes, upon the soap, and would discolor it and make it damp, without any sensible diminution of its weight; and we are confirmed in this conclusion by the witnesses who examined and weighed it, having testified that the boxes were of the same weight marked upon them when they were shipped at Liverpool. We feel bound to notice one point made in the argument of the cause by the counsel of the appellees, which is not an open question in this court. It was, that the appellants had no legal title to maintain their libel. In the case of Houseman v. The Schooner 'North Carolina,' (15 Pet., 49,) the same objection was made. This court said: 'An objection has been taken to the right of the appellee to sue in his own name, as agent for the consignees, or to sue at all, as his power of attorney from them bears date after the libel was filed; and it is also objected, that J. & C. Lawton, the consignees, had no right to institute proceedings to recover more than their proportion of the cargo shipped on their own account. No authority has been produced in support of these objections, and we consider it as well settled in admiralty proceedings, that the agent of absent owners may libel, either in his own name, as agent, or in the name of his principals, as he thinks best; that the power of attorney, subsequent to the libel, is a sufficient ratification of what he had done in their behalf, and that the consignees have such an interest in the whole cargo; that they may proceed in this case, not only for what belonged to them and was shipped on their account, but for that portion also which was shipped by Porter, as his own, and consigned to them.' The same conclusion was repeated in 17 Howard, Lawrence and Minturn, without any qualification, as we understand that case. In the first as well as in the second of these cases, the point was put on the interest which a consignee has in the consignment, as consignee, and not as owner of any part of it; that, from the nature of the contract of a bill of lading, the consignee had a right to sue, in a court of admiralty, for any breach of it. Whatever may be the uncertainty concerning the consignee's right to sue in a court of law, from the conflicting decisions to be found upon that right, there are none that he may sue in a court of admiralty in the United States. When that case, however, occurs in this court, it will be decided; and we now merely remark that, from our examination of most of the cases in the common-law reports. Upon the facts of those cases, we have been brought to the conclusion that there is no rule of general application as to when the consignor or consignee should bring the suit at common law, but that it will always be important to consider in whom the right of property, and sometimes in whom the right of possession, was vested at the time of the breach of the contract or neglect of duty which is complained of.

We direct the affirmance of the decree from which this appeal was taken.

Mr. Justice NELSON dissented.


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United States v. City Bank of Columbus (62 U.S. 356)

THIS case was brought up by writ of error from the Curcuit Court of the United States for the southern district of Ohio.

The facts of the case and also the instructions given to the jury upon the trial are all set forth in the opinion of the court.

It was argued by Mr. Hull and Mr. Black (Attorney General) for the United States, and by Mr. Stanbery for the defendant.

The Attorney General contended that it might be true that the cashier had no power to make the appointment, yet the directors had such power, and the cashier's letter may fairly be considered as a certificate that the appointment had been legally made; because, if the directors had appointed Miner, the cashier would have written just such a letter as he did write. Amongst other illustrations of this principle was the following:

If it were true that the appointment of an agent by a corporation must be evidenced by an entry on the minutes, or by any other writing, then it might plausibly be urged that the cashier or other certifying officer has only the power of certifying to a copy of such record or writing. But there is no such rule of law.

In the Bank of the United States v. Dandridge, (12 Wheat., 64,) it was distinctly decided by this court that the acts of a corporation, though not reduced to writing, are valid and binding, and may be proved aliunde. It is true that this doctrine did not command the assent of Chief Justice Marshall, who, in an able dissenting opinion, maintained the contrary; but it is now well-established law. (See Angell and Ames on Corp., sec. 284; Conro v. Port Henry Iron Company, 12 Barbour Sup. Ct. Reps., 53; Burgess v. Pue, 2 Gill, 287; Richardson v. St. Joseph Iron Company, 5 Blackford, 148; Badger v. Bank of Cumberland, 26 Maine, 435; Elysville Manufacturing Co., v. Okisko Company, 1 Md. Chy. Dec., 398.)

These authorities conclusively establish that, unless the charter provides otherwise, (as in this case it does not,) the appointment of an agent need not be in writing, or entered upon the minutes, but may be by parol, and provable like other facts.

But if this be so, there is no foundation for the assumption that the cashier can only certify the agency by copying the record of the appointment, for non constat that there is any record. And no custom of this bank is shown to the contrary. Even if it had been, it could have no effect unless the Secretary of the Treasury had notice of it; but, in fact, that cashier testifies that meetings of the board were held not entered on the minutes.

We have thus far shown—

1st. That the directors had the power to appoint an agent to make this contract on behalf of the bank.

2d. That the appointment of such agent need not be entered on the minutes, or reduced to writing.

3d. That the cashier is the proper officer to certify the fact of such appointment.

But the act of the cashier, whichin the scope of his duties, is the act of the bank. (Badger v. Cumberland, 26 Maine, 435; Story Agency, sec. 114; Angell and Ames Corp., sec. 300.)

It matters not that the thing certified was not true in fact. A principal is bound by the false and fraudulent representations of his agent in the scope of his authority. (Story Agency, sec. 139; ib., sec. 452.)

The next proposition is, that the bank having, through their cashier, asserted that Mr. Miner was agent, and the Secretary of the Treasury having acted on that information, the bank is now estopped to deny it.

The doctrine of estoppel in pais is thus distinctly stated by Lord Denman in Pickard v. Sears, (6 Ad. and Ellis, 469; 33 E. C. L. Reps., 117:)

'But the rule of law is clear, that where one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring, against the latter, a different state of things as existing at the same time.'

This doctrine is recognised by all courts of the common law. (See Brown v. Wheeler, 17 Conn., 353; Carpenter v. Stillwell, 12 Barbour Sup. Ct. Reps., 136.)

This doctrine applies to corporations as fully as to individuals. (Angell and Ames on Corp., sec. 238, p. 232.)

In Lovett v. German Reformed Church, (12 Barbour Sup. Ct. Reps., 81,) the court held the corporation estopped by the acts of acting trustees, though not rightfully in office.

In Bank of Genesee v. Patchin Bank, (3 Kernan's Reps., N. Y., p. 317,) the same doctrine is recognised.

But a corporation can do acts, or make declarations, in no other way than through its officers and agents. Therefore a corporation will be estopped by the acts or declarations of its officer or agent, acting in the sphere of his authority, in all cases where an individual would be estopped by his own.

Applying the above rules to this case, we find every ingredient mentioned by Lord Denman as required to make an estoppel.

This bank, through the written certificate of their cashier, he being the officer empowered by the usage of banks to certify its doings, has wilfully caused the Secretary of the Treasury to believe that Miner was authorized by the bank to contract for the transfer of funds. The Secretary was thereby induced to act on that belief, and to place in the hands of said Miner $100,000, to be transferred to New Orleans. The bank is therefore concluded from averring that Miner was not at that time its agent.

The case is therefore with the plaintiff upon the law.

Mr. Stanbery, for the defendant in error, contended that it was not within the power of a cashier, in virtue of his office, to make such a contract, or rather to authorize another to make it, and referred to 8 Wheaton, 360; 6 Peters, 59; 12 Eng. Law and Eq. Rep., 389; 1 Selt. N. Y. Rep., 332.

The nature and importance of the contract was such as to require the judgment of the directors. This is altogether beyond the usual business of buying and selling exchange. Neither the charter nor the by-laws gave this power to the cashier.

5. It has been argued that the letter of Moodie purports to be a certificate that Miner was duly authorized by the bank; and as the cashier is the certifying officer of the acts of the board, the bank is estopped from denying the truth of this certificate.

In the first place, this letter contains no certificate of an authority given by the board; but if it did, nay, if it purported to copy a resolution of the board, and it should appear there was no such resolution, the bank would not be bound.

The argument on the other side would indirectly make the principal liable in all cases where the agent clothes his unauthorized act with a false representation of authority from the principal.

This subject is well discussed in the Mechanics' Bank v. The New York and New Haven R. R. Co., 3 Kernan, 636.

Mr. Justice WAYNE delivered the opinion of the court.


text: Talk:United States v. City Bank of Columbus (62 U.S. 356)


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United States v. City Bank of Columbus (62 U.S. 356)/Opinion of the Court

The only question arising on this record is, whether the court erred in so much of the charge to the jury as is set out in the bill of exceptions. Objections were taken in the course of the trial to testimony, but no exceptions were taken to the rulings of the court upon them. The declaration in the case contained two counts-one of them alleging that a contract had been made between the City Bank of Columbus and the United States, by which the bank agreed, on the 1st November, 1856, to transfer one hundred thousand dollars of the public money from New York to New Orleans by the first of January, 1851, free of charge; and the other account for money had and received by the bank for the use of the United States.

The charge given by the court was confined to the first count. The bill of exceptions set out the following evidence, which was introduced by the United States to show a contract with the bank.

The following letter was written by the cashier of the bank:

CITY BANK OF COLUMBUS,

Columbus, Ohio, 26th October, 1850.

SIR: The bearer, Colonel William Miner, a director of this bank, is authorized, on behalf of this institution, to make proposals for the purchase of United States stocks to the amount of one hundred thousand dollars. He is also authorized, if consistent with the rules of the Treasury Department, to contract, on behalf of this institution, for the transfer of money from the East to the South or West, for the Government.

I have the honor to be, sir, your obedient servent,

THOMAS MOODIE, Cashier.

HON. THOMAS CORWIN, Secretary of the Treasury, Washington City.

This letter was presented by Mr. Miner to Mr. Corwin on the first of November, 1850. On the same day, Mr. Corwin wrote to Mr. Miner the following letter:TREASURY DEPARTMENT, November 1, 1850.

SIR: Your proposition of this date, to transfer $100,000 from New York or Philadelphia to New Orleans, by the 1st January next, free of charge to the Department, is accepted. You will receive herewith a transfer draft on the Assistant Treasurer at New York, in favor of the Assistant Treasurer at New Orleans, for $100,000, with the authority endorsed to make the payment at New York to you.

I am, very respectfully,

THOMAS CORWIN, Secretary.

This was followed by an undertaking for the transfer of one hundred thousand dollars for the Government from New York to New Orleans:

WASHINGTON CITY, November 1, 1850.

This will certify that I have contracted with the United States Treasury, as the agent of the City Bank of Columbus, to transfer $100,000 from New York to New Orleans, to be deposited in the Treasury at the latter-named city by the first day of January, 1851, free of charge. I have, in pursuance of said contract, this day received a draft in my own hand for one hundred thousand dollars on the United States Treasury at New York city, which is to be accounted for in said contract.

WILLIAM MINER.

Miner received the draft, and cashed it in person on the 2d November, 1850; but what he did with it no one knows, or this record does not show. It is certain that it was not repaid in New Orleans according to the contract; and there are no proofs on this record which can raise a presumption that the Bank of Columbus ever received a dollar of it. There is proof that Miner was all that time a director of the bank, and that Moodie, who gave him the letter to the Secretary of the Treasury, was the cashier, and that he signed his name to the letter as cashier; and that the letter had been copied into the letter book of the bank. A by-law of the bank was also put in proof, to show that it might be inferred from it that he had authority, as cashier, to empower Mr. Miner, as a director of the bank, to enter into such a contract as he had made with the Secretary of the Treasury. The by-law is: 'A committee of two shall be appointed every six months to advise with the president and cashier. In their absence, all the ordinary business of the bank may be done by the president and cashier; and if either of them be not present, then by the other alone; but any discount, negotiation, or contract, whether made by the board or committee, is to be done by the consent of all present.'

It was also shown that there had not been a meeting of the directors in either July or August, 1850. That there had been a meeting on the 21st September, 1850, and another November 4th, 1850, nine days before the cashier gave his letter to Miner, and three days after the date of Miner's contract, to transfer the money from New York to New Orleans. The minutes of the bank, as kept by the cashier, of the meetings of the directors, do not show any intention upon the part of the directors to enter into a contract for the purpose of buying stock of the United States, or for the transmission of the money of the United States from the East to the South or West, as Moodie expresses it in his letter; or that after the negotiation of Miner, and his receiving the money from the Assistant Treasurer in New York, that the directors or president of the bank had any knowledge of the transaction until after Miner's default to pay the amount at New Orleans. Moodie testifies that he wrote the letter of the 26th of October, 1850, for Miner to negotiate with the Secretary of the Treasury, without the knowledge of the president or any of the directors of the bank, except Miner himself, and that the fact that such a letter had been written was not communicated by him to any of the directors until January after, though he had caused a copy of it to be put in the letter book. All of the directors, at the time of the transaction, have sworn that Moodie had not been authorized by the board or by any of themselves to constitute Miner such agent; that they had no knowledge of Moodie's letter, and that they never sanctioned the same. And there is other testimony in the case, that Moodie, as cashier, had not the power to depute Miner for any such purpose, and that it would not have been done but by a resolution of the board of directors. Upon this evidence, and some other which it is not material to notice, the court charged the jury. After they had retired, and consulted for some time, they came into court and asked for further instructions, and the court gave them the following charge in reference to the contract set out in the first count of the declaration: 'That if they should find that the letter written by Moodie was his own act, and had been given without the knowledge or authority of the board of directors, or any of them individually, except Miner, and that the agency of Miner was not constituted by or known to the board of directors, or the directors individually, or any of them except Miner, but was the act of the cashier alone; and if they should find that Moodie had no power as cashier, except such as belonged to the office of cashier generally, or such as are given by the charter or by the by-law or other law or usage of the said bank, that the defendant was not concluded by that letter, and is not bound by the contract made by Miner, with out some subsequent ratification of the same, though the Secretary had, in contracting with Miner, relied upon it as the act of the bank.'

To this charge the plaintiff excepted, and, on account of that exception alone, the case has been brought to this court by writ of error. In our opinion, no charge could have been more comprehensive of the merits of the case, more precise in its application to the particulars of the testimony introduced by the plaintiff and the defendant, or more expressive of what the law is upon such a state of facts. It is all that the litigants could have expected, and is liberal to both. It is also in coincidence with the views generally entertained of the powers and duties of the cashiers of banks, by those most familiar with the management and business of banks, and perfectly so with such as have been expressed by this court in previous reported cases. It Fleckner v. The Bank of the United States, (8 Wheat., 338, 356, 357,) this court said, the charter authorizes the president and directors to appoint a cashier and other officers of the bank, and gives the president and directors, or a majority of them, full power and authority to make all such rules and regulations for the government of the affairs and conducting the business of said bank, as shall not be contrary to the act of incorporation. It contains no regulations as to the duties of cashiers; with the directors it would rest to fix the duties of cashier or other officers. Whether they have made any regulation upon this subject, does not appear; but the acts of the cashier, done in the ordinary course of the business actually confided to such an officer, may well be deemed prima facie evidence that they fell within the scope of his duty. In the case Bank of the United States v. Dunn, (6 Peters, 51,) the court would not permit the president and cashier of the bank to bind it by their agreement with the endorser of a promissory note, that he should not be liable on his endorsement. It said it is not the duty of the cashier and president to make such contracts, nor have they power to bind the bank, except in the discharge of their ordinary duties. All discounts are made under the authority of the directors, and it is for them to fix any conditions which they may think proper in loaning money. The court defines the cashier of the bank to be an executive officer, by whom its debts are received and paid, and its securities taken and transferred, and that his acts, to be binding upon a bank, must be done within the ordinary course of his duties. His ordinary duties are to keep all the funds of the bank, its notes, bills, and other choses in action, to be used from time to time for the ordinary and extraordinary exigencies of the bank. He usually receives directly, or through the subordinate officers of the bank, all moneys and notes of the bank, delivers up all discounted notes and other securities when they have been paid, draws checks to withdraw the funds of the bank where they have been deposited, and, as the executive officer of the bank, transacts most of its business.

The term ordinary business, with direct reference to the duties of cashiers of banks, occurs frequently in English cases, and in the reports of the decisions of our State courts, and in no one of them has it been judicially allowed to comprehend a contract made by a cashier, without an express delegation of power from a board of directors to do so, which involves the payment of money, unless it be such as has been loaned in the usual and customary way. Nor has it ever been decided that a cashier could purchase or sell the property, or create an agency of any kind for a bank which he had not been authorized to make by those to whom has been confided the power to manage its business, both ordinary and extraordinary. The case of Kirk v. Bell, (12 English and Common-Law Reports, 389,) and that of Hoyt v. Thompson, were very appropriately cited by the counsel of the appellee, in this connection; and we think the safe rule in all instances of acts done by the officers of corporate companies, or by those who have the management of their business, from which contracts are alleged to have been made, is, to test that fact by an inquiry into the corporate ability which has been given to them and to their subordinate officers, or which the directors of the company can confer upon the latter to act for them. Such was the view of this court when it decided, in the case of the Bank of the United States v. Dunn, (6 Peters,) that a release given by its president and cashier to the endorser of a promissory note of his liability upon it, did not bind the bank, neither nor both having any authority to make contracts of that kind. The case before us is one in which a cashier acts alone, and in which he testifies that he did so without any consultation with the president or directors of the company, and of which they had no information from him of the transaction until after the failure of Miner to pay the money in New Orleans. The act under which the City Bank of Columbus became a corporation does not, in any part of it, give any power to a cashier to act independently of the directors. No specific power is given to the directors to appoint a cashier. In the general power given to the directors to appoint officers to do the ordinary business of the bank, they have an authority to appoint a cashier, and such an appointment is a limitation of that officer's executive function in doing the business of the bank. It cannot be pretended that the directors, as a whole, or any one of them, except Miner, consented to the cashier's designation of Miner for any such purpose as was concluded between them, to induce the Secretary to believe that Miner was the agent of the bank, either to buy stock of the United States or to enter into contracts for the transmission of money, free of charge, to those posts where the United States should designate it to be put. Such a power in the Secretary of the Treasury is a necessary one for the transaction of the business of the Government, pervading, as it does, every part of the country. The exercise of it, however, requires great care and caution in the selection of agents for such a purpose, and no authority short of the most certain should be taken to establish the representative character of any one for a private company or corporation to enter into such a contract with the Secretary.

The United States, as plaintiff in this action, has failed to establish the contract which it alleges in its declaration had been made with the City Bank of Columbus, for the transmission of money; and we direct the judgment given in the court below to be affirmed.


text: Talk:United States v. City Bank of Columbus (62 U.S. 356)/Opinion of the Court


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New York v. Dibble

THIS case was brought up from the Supreme Court of the State of New York by a writ of error issued under the 25th section of the judiciary act.

The case is stated in the opinion of the court, and is reported in the New York State courts, in 18 Barb., 412, and 2d vol. of Smith's Reports of the Court of Appeals, 203, being 16 New York Reports.

It was argued by Mr. Brown and Mr. Gillet for the plaintiffs in error, and by Mr. Martindale for the defendant.

The only question in this court was, whether the statute of 1821 was in conflict with the Constitution of the United States, or any treaty, or act of Congress, and whether the proceeding under it had deprived the relators of property or rights secured to them by any treaty or act of Congress.

The counsel for the plaintiffs in error contended that the Constitution of the United States had given to Congress power to regulate commerce with the Indian tribes; that this power had been exercised by the passage of the act of 1802, (2 Stat. at L., 139;) that the act of 1834 (4 Stat. at L., 729) repealed so much of this act as applied to the Indians west of the Mississippi, but left it operative upon the Indians east of the Mississippi; that the law of New York was repugnant to this act of Congress; that by the treaty of 1794 (7 Stat. at L., 45, art. 2) the President of the United States was made the exclusive judge of the force and measures necessary to remove intruders upon these very Indians; that both these enactments could not stand, and if so, the State law must give way; and that there were reservations in New York where no treaties were in force upon which the State law could properly operate. It was also contended, that even if the New York law of 1821 was not invalid at the time of its passage, it had been superseded and annulled by the treaties which the United States had made with the Indians in question in 1838 and 1842, so far at least that Ogden and Fellows could enjoy the rights which those treaties secured to them.

In support of the views first mentioned, the counsel referred to the well-known cases of Sturges v. Crowninshield, and Gibbons v. Ogden, and also to 5 Howard, 410; 14 Peters, 540; 3 Cowen, 714; 7 Howard, 283.

The counsel for the defendant in error contended that the act of Congress of 1802 had no application to the New York Indians; that, from the earliest history of the colony of New York, the Indians, and especially the Senecas, had been under the protection of her laws, and that such protection had been continued from the time of the Revolution; that the pre-emptive right to the Indian lands within the State of New York belonged to the State, and was never ceded to the United States; that, consequently, the power given to Congress to regulate commerce, did not apply to such tribes; that the United States by their measures had been the means of breaking up the tribe of Seneca Indians into small and detached bands or reservations, which were necessarily placed under the police regulations of the State, made to protect the public peace. With respect to the alleged treaties, the counsel contended that the Tonawandas had never executed them, but constantly and unanimously refused to be bound by them; that they have never received any portion of the consideration moneys provided in said deeds; that the land upon which they now lived had always been occupied by them, and that neither Congress nor the treaty-making power could arbitrarily take away their property.

Mr. Justice GRIER delivered the opinion of the court.

title: New York v. Dibble


text: Talk:New York v. Dibble

title: Talk:New York v. Dibble


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New York v. Dibble/Opinion of the Court

This case is brought before us by a writ of error to the Supreme Court of New York, under the 25th section of the judiciary act. It had its origin in a proceeding before the county judge of Genesee county, instituted by the district attorney against Asa Cutler, John Underhill, and Arza Underhill, the relators, pursuant to the provisions of an act of Assembly entitled 'An act respecting intrusion on Indian lands,' passed March 31, 1821.

This act made it unlawful for any persons other than Indians to settle and reside upon lands belonging to or occupied by any tribe of Indians, and declared void all contracts made by any Indians, whereby any other than Indians should be permitted to reside on such lands; and if any persons should settle or reside on any such lands contrary to the act, it was made the duty of any judge of any county court where such lands were situated, on complaint made to him, and due proof of such residence or settlement, to issue his warrant, directed to the sheriff, commanding him to remove such persons.

On notice to the relators of the institution of this proceeding, they appeared before the judge and pleaded to his jurisdiction, on the ground that they had entered and occupied the lands, claiming title under a written instrument adversely to the Seneca nation of Indians, and therefore, by the Constitution and laws of the State, they were entitled to a trial by jury, according to the course of the common law, and could not thus be removed by summary proceedings under this act.

This plea was overruled by the judge. The relators then pleaded that this tract of 12,800 acres, called the Tonawanda reservation, was not owned by the Seneca Indians; that by a treaty made with the United States on the 20th of May, 1842, the Seneca nation of Indians had by indenture set forth in the treaty conveyed to Thomas Ludlow Ogden and Joseph Fellows this tract of land, with others; that this grant was duly confirmed by the State of Massachusetts, pursuant to the provisions of the act of cession made between that State and the State of New York, on the 16th of December, 1786; that the whole amount of the consideration stipulated by the treaty and deed had been paid by said Ogden and Fellows; and that relators were in possession under said Ogden and Fellows, and adversely to the Indians. They therefore denied the power and authority of the judge to determine their right to the lands in their possession, or to remove them, under the powers conferred by the act of Assembly of New York.

After hearing the parties, the judge decided against the relators, who removed the proceedings by certiorari to the Supreme Court.

The record contains the testimony on both sides, and numerous documents concerning the treaty with the Seneca Indians, and also the subsequent proceedings by the officers of the Government. It will not be necessary to a clear apprehension of our decision in this case to state them particularly, nor is it material to our inquiry whether the judge may have erred in his decision, that 'the Seneca nation had not duly granted and conveyed the reserve in question to Ogden and Fellows.'

The Supreme Court and Court of Appeals of New York have decided, 'that the provisions of this act respecting intrusions on Indian lands, which authorize the summary removal of per sons, other than Indians, who settle or reside upon lands belonging to or occupied by any nation or tribe of Indians, are constitutional, and that a citizen who enters upon their land before their title has been extinguished, and they have removed, or have been removed by the act of the Government, can acquire no such right of property or possession as is within the protection of the provisions of the Constitution which secure a trial by jury.' They therefore affirmed the judgment of the county judge.

The only question which this court can be called on to decide is, whether this law is in conflict with the Constitution of the United States, or any treaty or act of Congress, and whether this proceeding under it has deprived the relators of property or rights secured to them by any treaty or act of Congress.

The statute in question is a police regulation for the protection of the Indians from intrusion of the white people, and to preserve the peace. It is the dictate of a prudent and just policy. Notwithstanding the peculiar relation which these Indian nations hold to the Government of the United States, the State of New York had the power of a sovereign over their persons and property, so far as it was necessary to preserve the peace of the Commonwealth, and protect these feeble and helpless bands from imposition and intrusion. The power of a State to make such regulations to preserve the peace of the community is absolute, and has never been surrendered. The act is therefore not contrary to the Constitution of the United States.

Nor is this statute in conflict with any act of Congress, as no law of Congress can be found which authorizes white men to intrude on the possessions of Indians.

Is it in conflict with rights acquired by Ogden and Fellows, under the treaty, and contract making a part of it? If the treaty of 1842 had been executed; if the United States, in their character of sovereign guardian of this nation, had delivered up the possession to these purchasers, then this statute of New York, when applied to them, would clearly be in conflict with their rights acquired under the treaty. But, by the case, it is admitted that the Indians have not been removed by the United States. The Tonawanda band is in peaceable possession of its reserve, and has hitherto refused to surrender it. Unless, therefore, these persons claiming under Ogden and Fellows have by the treaty a right of entry into these lands, and, as a consequence, to forcibly oust the possessors or turn them out by action of ejectment, they cannot allege that this summary removal by authority of the statute of New York is in conflict with the treaty, or any rights secured to the purchasers under it. This proceeding does not affect their title. The question of the validity of this treaty to bind the Tonawanda band is one to be decided, not by the courts, but by the political power which acted for and with the Indians. So far as the statute of New York is concerned, it only requires that the Indians be in possession; they are not bound to show that they are owners. They may invoke the aid of the statute against all white intruders, so long as they remain in the peaceable possession of their lands.

The relators cannot claim the protection of the treaty, unless they have a right of entry given them by it, before the Indians are removed by the Government. This court have decided, in the case of Fellows v. Blacksmith, (19 Howard, 366,) that this treaty has made no provision as to the mode or manner in which the removal of the Indians or the surrender of their reservations was to take place; that it can be carried into execution only by the authority or power of the Government which was a party to it. The Indians are to be removed to their new homes by their guardians, the United States, and cannot be expelled by irregular force or violence of the individuals who claim to have purchased their lands, nor even by the intervention of the courts of justice. Until such removal and surrender of possession by the intervention of the Government of the United States, the Indians and their possessions are protected, by the laws of New York, from the intrusion of their white neighbors.

We are of opinion, therefore, that this statute and the proceeding in this case are not in conflict with the treaty in question, or with any act of Congress, or with the Constitution of the United States. The judgment of the Court of Appeals of New York is therefore affirmed, with costs.

title: New York v. Dibble/Opinion of the Court


text: Talk:New York v. Dibble/Opinion of the Court


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New York and Liverpool United States Mail Steamship Company v. Rumball

THIS was an appeal from the Circuit Court of the United States for the southern district of New York, sitting in admiralty.

The case is fully stated in the opinion of the court.

It was argued by Mr. Potter for the appellants, and by Mr. De Forest for the appellee.

In cases of collision, it is difficult to make an abstract of the arguments of counsel, because the whole evidence is before the court, and resorted to by both sides in support of the positions which they respectively take. The reporter can only state the points which were made, without the arguments to sustain them.

On the part of the appellants, it was contended:

1. The collision was caused by the brig. She changed her course, and ran into the steamer.

2. But if it be considered that the brig did not change her course, still she ran into the steamer while endeavoring to get out of her way, when she could easily have avoided it.

3. In any event, the steamer was not in fault, every effort on her part being used to avoid the collision.

4. There are two points on which the proofs differ. 1. The general course of the brig. 2. The time the brig showed a light previous to the collision. Both these are assumed, by the decree, to be as claimed by the libellant. Now it is, we think, mathematically demonstrable that, if these matters are as claimed, a collision could not have occurred.

5. The libellant has the burden of proof. To recover, he must make it appear that the steamer was in fault, and not leave the question of fault in doubt.

6. In any event, the damages were excessive. The libellant was only entitled to the actual damage caused by the collision, viz: the cost of bringing the brig into port and refitting her.

The counsel for the appellee made the following points:

1. The steamer's course was east half south at the time the brig's light was reported. The wind was free for the steamer; all her sails and studding-sails were set; her speed was about 12 1/2 knots.

2. There is a slight disagreement among the witnesses as to the direction of the wind, but the difference is not material.

3. The brig was sailing on the wind, northwest by west, close hauled, on the larboard tack, her track converging toward that of the steamer, and her speed about three to four knots.

4. The position of the brig, when her light was first discovered, was somewhat to the southward of the original track of the steamer.

5. There is no substantial difference between the witnesses as to the state of the atmosphere and weather, at the time of the collision. The night was not unusually dark, and the atmosphere not thick.

6. It appears very clearly, from the testimony on both sides, that the vessels were several miles apart when the light of the brig was first displayed. This is proved directly, and is to be inferred from various independent facts.

Mr. Justice CLIFFORD delivered the opinion of the court.


text: Talk:New York and Liverpool United States Mail Steamship Company v. Rumball