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Smith v. Corporation of Washington/Opinion of the Court

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.

It was an action on the case brought in the Circuit Court by Ann C. Smith, against the corporation of Washington, to recover damages alleged to have been suffered by the plaintiff by reason of the alteration of the grade of K street, in the city of Washington, upon which street the plaintiff's dwelling-house and messuage were situated.

Upon the trial in the court below, after much evidence had been given, the defendants' counsel asked the court to give the following instruction, which was given by the court, and plaintiff's counsel excepted.

If, from the whole evidence aforesaid, the jury shall find that the defendants, bona fide, and to promote the public convenience, and to complete and extend the grading of the streets of said city, caused the north side of K street to be cut down, graded, and completed, and thereby caused the damage in said declaration complained of; and that, in the execution of said work, the said corporation made their said excavation in the street, and at a distance of six or seven feet from the front line of the plaintiff's said premises, then the damages so as aforesaid alleged by the plaintiff, if the jury shall believe the same was occasioned by the acts aforesaid of the defendants, and not otherwise, is damnum absque injuria, and the plaintiff is not entitled to recover in this action, which instruction the court gave as prayed; whereupon, the plaintiff, by her counsel, excepts to said ruling of the court, and prays the court to sign and seal this, his bill of exceptions, and to cause the same to be enrolled, which is done, this 22d day of May, 1856.

And on the trial of said cause, and before the same was submitted to the jury, the counsel for the said plaintiff requested the said court to give the jury the following instructions, to wit:

1. That if they find, from evidence, that the grade of K street north, in front of said plaintiff's premises mentioned in said declaration, was established and made, and said street gravelled, at or about the year 1832, and the said sidewalk graded and flagged at or about the same time, by the direction and authority of said corporation at the time of opening said street, and in pursuance of the acts of October 23, 1830, August 11, 1831, and 18th of May, 1832-that then the said corporation had no power or authority to regrade said street in a manner to occasion expense to the plaintiff, or injure the use or value of her property, without making compensation therefor, and that the defendants are liable for the damages which the said regrading occasioned plaintiff. [Refused.]

2. That if they believe that the plaintiff or her grantors was induced to build said house in consequence of the said act of October 23, 1830, and the grading of said street in front thereof under it, that then in that case the changing of said grade to her injury, without making compensation, was an act of bad faith towards her, for which the defendants are liable. [Refused.]

That if they find that the said street in front of plaintiff's house was graded under and in pursuance of the act of March 3, 1851, by said defendants, that then the regarding under the act of September 12, 1851, was unauthorized, if the plaintiff sustained injury thereby, for which no compensation was made; and that then, and in that case, the defendants are liable to her for the injury which she sustained thereby. [Refused.]

That if they find that the said defendants caused the pavement in front of said plaintiff's house to be taken up, and said sidewalk to be regarded and the pavement relaid, that then the taking up the same, and regrading and relaying the same, under the acts of August 21, 1851, and 12th of September, 1851, without making compensation for the damages the said plaintiff might sustain thereby, was unauthorized and unlawful, and that said defendants are liable to the plaintiff for the damages sustained thereby. [Refused.]

That under the act of Congress authorizing said defendants to open streets, when they have once graded and opened the same, that they have no lawful authority, without the consent of the property holders injured thereby, and without making compensation for the damages sustained, to regrade so as to injure the value or the use of real estate when the said regrading is made; and that if they find said defendants have so regraded, they are liable to said plaintiff for all damages she has sustained by such regrading. [Refused.]

That if the jury find that the said street had been previously graded by the said corporation, that no changes by the action of the elements thereon, or by natural causes resulting from said grade, can authorize such regrading; and that if the said defendants regraded said streets on account of such changes, they are liable to said plaintiff for all damages which she sustained thereby. [Refused.]

That if the jury find that said street was graded and gravelled, in August, 1851, by said corporation, that without a change of circumstances, and the occurrence of a new and further necessity for a change in said grade, that then the regrade under the act of 12th of September, 1851, was unauthorized and unlawful, and the defendants are liable for such damages as the plaintiff may have sustained by said last-mentioned regrading. [Refused.]

That if the jury find that the defects in the street were such as were occasioned solely by a neglect in not preserving it in the condition in which it was left when first graded under the laws of 1830, 1831, and 1832, that then the defendants were not authorized to regrade said street under either of said acts of 1851, and that their doing so was illegal, and renders them liable for all damage growing out of such regrading resulting therefrom. [Refused by a divided court.]

That if the jury find that said street could have been restored to its condition, as established under the grading originally made, without cutting down said street and regrading it, that said defendants were bound so to restore it without regrading, and that such regrading was unauthorized and illegal, and renders the defendants liable for all damages sustained by the plaintiff resulting therefrom. [Refused.]

That if the jury believe that said defendants, in regrading said street in 1851, cut down said street lower than was necessary to restore the former grade, and render the said street equally passable, that such excess of cutting down was unauthorized and illegal, and the said defendants are liable to said plaintiff for all injury sustained by such excess of cutting down. [Refused.]

That if the jury find that in said regrading in 1851, the defendants cut down said K street in front of said plaintiff's premises so much as to render it necessary to regrade and cut down Twelfth street, and thereby render that portion of it north of said K street steeper and more difficult of passage than it formerly was; that such fact raises a presumption that said regrading, to the extent it took place, was unnecessary and improper, and unless such presumption is repelled by proof, that the said regrading was unauthorized, and renders the defendants liable to the plaintiff to the extent of the damages which she has sustained thereby. [Refused.]

That if the jury find that the fall between the north and south sides of K street in front of plaintiff's premises, by the first grading or first regrading, was not greater than that in one or more of the grades in the city of Washington made or suffered by the defendants in opening and grading said streets, that such fact will raise the presumption that said regrading was not a work of necessity, and was therefore illegal and unauthorized, and renders them liable to all such damages as the plaintiff sustained by such regrading. [Refused.]

That if the jury find that the north side of said K street in front of plaintiff's house was cut down so low as to turn the water from Thirteenth street from its natural course from north to south, from the high grounds at the north of said K street to the low grounds on I street, at the south, and make it run east to Twelfth street, that such fact is presumptive evidence that said street was cut down more on said north side than was necessary or proper, and that, unless disproved, it is conclusive against the defendants that they cut down there more than was necessary, and that they are liable to the plaintiff for all damage she has sustained thereby. [Refused.]

That if the jury believe that said K street, or any part thereof, where it crosses Twefth street, was left higher than said K street, and impassable for teams, or materially obstructed from the regrading in 1851 to the fall of 1854, or to other time, that such fact is presumptive evidence that said regrading was not necessary for the purposes, passing, and travel, on said K street, but that it was lowered below said Twelfth street at that point for some other purpose; and that, unless disproved, it renders said defendants liable to said plaintiff for all damage she may have sustained by so regrading. [Refused.]

That if the jury find that the lowering the north side of K street in front of said plaintiff's house, and the making a gutter there from Twelfth to Thirteenth street would have obviated the objection of the flow of the water across the street, and gullying the same, without regrading to the extent which said street was regraded, that then said defendants are liable to said plaintiff for all damages sustained by lowering the north side of said street more than was necessary to protect against said flow and injury. [Refused.]

That the statute of Congress authorizing said corporation to open and grade streets in said city, is not a continuing power, but, when once opened and graded, that such corporation is not authorized to regrade the same in a manner whereby private property is injured; and that if they do so, they are liable to those injured for all damages sustained thereby. [Refused.]

The court having refused to give said instructions, the plaintiff's counsel excepted.

The defendants' counsel thereupon asked the said court to give the following instructions:

And thereupon the said plaintiff's counsel, insisting before the jury that the said change of grade was not made by defendants bona fide, the defendants now pray the court further to instruct the jury that the defendants cannot be made responsible in damages in this action, unless from the evidence the jury shall find that the said change was made wantonly, wilfully, and maliciously; which instruction the court gave as prayed.

Whereupon the plaintiff, by her counsel, excepted, and prays the court to sign and seal this her bill of exceptions, this 23d day of May, 1856.

And the said court thereupon gave said instructions, and the counsel for the plaintiff excepted.

And thereupon the said jury, under the said ruling of the court, found a verdict for the defendants.

Upon these various rulings and refusals, the case came up to this court.

It was argued by Mr. Gillet and Mr. Cushing for the plaintiff in error, and Mr. Carlisle for the defendants.

The points made by the counsel for the plaintiff in error were the following, viz:FIRST.-The plaintiff had a right to give evidence tending to question the bona fides of the defendants in making the regrades.

One of the tests of good faith in making the said regrades was to compare their acts in question without other acts upon a like subject. If the defendants acted in good faith, they would deal with the people in Franklin Row as they did with those in other parts of the city. The defendants had offered proof that the first grade of K street, in front of plaintiff's house, was steep. Thereupon, the plaintiff offered to prove that it was not as steep as other grades which the corporation has fixed in other parts of the city. This evidence was objected to by the defendants, and rejected by the court, and the plaintiff excepted.

This evidence clearly tended to show, if it was not conclusive, that the defendants applied a different rule in other parts of the city from that which they enforced upon the plaintiff. The evidence offered raised a presumption against the defendants, and it rested with them to repel it by other evidence, if they could. It prejudiced the plaintiff to reject it altogether, and therefore the exception ought to be sustained.

SECOND.-That the first establishment of a grade raises a presumption that such grade was the proper one; and to justify a change, the defendants were bound to show a change of circumstances, and the occurrence of a new and further necessity, to justify a regrading.

After the grading in 1831 or 1832, which was proved to be a proper grade, by the acts of the defendants as well as by witnesses, it was incumbent upon the defendants to show some reason for a regrade, other that their neglect in letting the street get out of repair. They offered none of a material character. They ordered the regrade by the act of August 11th, 1851, without any substantial or plausible reason. It was the exercise of power without any reasonable cause.

The regrading under the act of the 12th of September, 1851, is wholly without a pretence of excuse. They had fixed the grade and gravelled the street; neither the elements nor any other cause had changed it, or proved it unsuitable. There was no change of circumstances, and no occurrence of any new or further necessity for a change of what they had made as good and sufficient. It was a wanton exercise of power, without any assignable good motive. It laid the foundation for the assumption that the defendants did not act in good faith. It raised that presumption, and it rested with them to repel it, which they did not attempt.

THIRD.-The payment of damages to a portion of those injured residing in Franklin Row, authorized the presumption that the defendants did not act in good faith.

The defendants, as a corporation, derive their powers under the seventh and eighth sections of the act of 1820. (3 U.S. S., 586, 587.) There is no power conferred upon them to make gratuties; to do so would be a wanton violation of duty. They cannot assume that they thus acted in paying Ratcliffe $425 towards his loss. This was an acknowledgment that they had acted wrongfully in the cutting down, and were liable for the injury. It was an admission that they acted without lawful cause, and had no legal justification, and raised a clear presumption against them, which they did not attempt to repel.

FOURTH.-The condition in which the defendants left the street for a long time, raised the presumption against the good faith of their acts.

Mr. Ratcliffe testified, that 'after the defendants cut down the street, we were left in the mud a year or so.' The fact of cutting down the street, and leaving it in the condition described, raises a presumption that it was not done to improve the street and make it more passable. It was incumbent upon the defendants to repel this presumption by proof.

FIFTH.-The court erred in instructing the jury that the plaintiff could not recover without proving that the change in the street was made 'wantonly, wilfully, and maliciously.'

In the first instruction prayed by the defendants, the court told the jury, as a matter of law, that if the defendants acted in good faith in the regrading, the plaintiff could not recover. The plaintiff had given evidence tending to show, unexplained, a want of good faith, and especially the order for the second regrading, within about a month after the first regrading, and her counsel commenced to sum up the facts before the jury, to show that the defendants did not act bona fide. Thereupon the defendants' counsel interrupted, and prayed a further instruction, as follows:

'And thereupon, the plaintiff's counsel insisting before the jury that the said grade was not made by the said defendants bona fide, the defendants now pray the court further to instruct the jury, that the defendants cannot be responsible in damages in this action, unless from the evidence the jury shall find that the said change was made wantonly, wilfully, and maliciously; which instruction the said court gave as prayed.'

To this there was an exception. The jury of course found, under this instruction, for the defendants.

a. Here was a change of ground by defendants during the trial, and one assumed under which the plaintiff could not be expected to prevail. It presented, in effect, a new issue, not raised by the plea of the 'general issue.'b. It avoided the question of the power of the defendants to regrade, as they had done, as well as that of bona fides, and threw upon the plaintiff the burden of proving matters essentially different. These matters relate not to the right to recover, but simply to the extent of the recovery. The decision, in substance, was, that the question of power was not to be looked at, but that the plaintiff must make proof that the act was done 'wantonly, wilfully, and maliciously.' Under this decision, if the defendants had no power whatever, but had been in fact forbidden by law to do the act complained of, they might not have acted wantonly, wilfully, or maliciously. They might have mistaken the law, or never have seen or heard of it, or acted upon the supposition that they might do whatever they chose; and in either of these cases they would have escaped all responsibility, thus making the plaintiff sustain all the loss, because of their blunders or want of knowledge. Such a rule would work mischief without end. It would be a justification of nearly or quite all the acts of public functionaries, if not of private individuals, of which so much complaint has been made. It would justify courts and officers acting without jurisdiction, if they did not act maliciously. It would, in effect, make the right to recover, in all cases of tort, depend upon the motive which led to its commission, and throw upon the plaintiff the burden of proving that such motive had its origin in malice. A more mischievous rule of action was never maintained and urged before a judicial tribunal.

c. Under the instruction, the issue framed by the pleadings was changed. The declaration charged that the defendants had injured her property without authority of law, and the plea denied the allegation. The parties went to trial upon that issue. The court, on the trial, made a different one, and directed the jury that they must find three other charges against the defendants before the plaintiff could recover:

1st. That the defendants had acted wantonly-that is, wholly without regard to restraints or consequences.

2d. That they acted wilfully-that is, obstinately and stubbornly wrong, not yielding to reason; but by design, and with the purpose of doing injury.

3d. That they acted maliciously-that is, with extreme enmity of heart-with malevolence, and with a disposition to injure the plaintiff without cause-with unprovoked malignity or spite. A malicious injury has been defined to be: 'An injury committed out of spite or ill-will against another; an injury committed wantonly, wilfully, and without cause.' (2 Burrell L. Dic., 698; 1 Chit. Gen. Pr., 136.) Wantonness is defined by Bouvier (2 v. L. Dic., 640) as 'A licentious act by one man towards the person of another, without regard to his rights.'

In changing the issue by the charge of the court, the plaintiff sustained an injury; and the judgment ought to be set aside, and a new trial ordered.

SIXTH.-The defendants had no lawful authority to cut down the street in front of the plaintiff's house, so as to injure her property, without her consent, without making her compensation.

It is a fundamental rule of law, that artificial bodies, like corporations, can exercise no power except such as is expressly conferred upon them. (Head v. Providence Ins. Co., 2 Cr., 121; Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat., 326.)

The only power conferred upon the corporation of Washington on this subject is found in the 7th section of the act of May 15th, 1820, (3 U.S. L., 5687,) and is in these words:

'The said corporation shall have full power and authority to * *  * erect and repair bridges; to open and keep in repair streets, avenues, lanes, alleys, drains, and sewers, agreeably to the plan of the city, to supply the city with water,' &c.

This provision recognises the known historical fact, that at an early day there was prepared and adopted a plan of the city of Washington, wherein the streets, alleys, lanes, &c., were drawn, and the grade of the streets and avenues above tide water accurately laid down. The elevations of the original grades are shown in the diagram in this case, admitted in the stipulation, and is proved by Cluskey's testimony.

The grades having been previously established, the power conferred in relation to streets and avenues was 'to open and keep in repair,' and not to grade. The intention of Congress was to authorize the city government to carry into effect the plan of the engineers who laid out the city, and of General Washington, who approved of it. It was not the intention to authorize that elaborate work to be broken up and defeated, in conformity to the caprices which might at any time spring into existence in the city government. Hence the limitation of the power conferred. It neither authorizes the opening a street, nor fixing its grade, but permits opening 'agreeably to the plan of the city,' which contained the grade of every street, avenue, &c. The city cannot lay out a new street, nor fix the grade of an old one. Its power does not extend to either.

But the charter does authorize the city 'to cause new alleys to be opened through the squares, and to extend those already laid out, upon the application of the owners of more than one-half of the property in such squares.' (Sec. 8, p. 587.)But this can only be done by paying those injured the losses they sustain, which is to be collected of those whose property shall be benefited, as equity and justice require. This provision in relation to lanes shows that Congress did not intend to arm the city with the power of injuring the property of individuals, without requiring it to make just compensation.

This law is entirely different from the Georgetown act, construed in Gosler v. The Corporation of Georgetown, 6 Wheat., 593. The Legislature conferred upon the corporation of Georgetown 'full power and authority to make such by-laws and ordinances, for the graduation and levelling of the streets, lanes, and alleys, within the jurisdiction of the same town, as they may judge necessary for the benefit thereof.'

Under this provision, a by-law was passed to grade the streets, in which it was declared that forever thereafter the grade thus established should be regarded in making improvements in the streets. Subsequently, the corporation passed a new law, changing the grade. The plaintiff claimed to be injured by the change, and brought suit upon the ground that the corporation had, by the first law, contracted not to disturb the first grade. The court held that it was not a compact, and that the power to make by-laws and ordinances was a continuing power. Marshall, C. J., said:

'The power is not 'to graduate and level the streets,' or 'to make a by-law for the graduation and levelling of the streets;' but 'to make such by-laws and ordinances for the graduation and levelling of the streets,' &c., within the jurisdiction of the same town, as they may judge necessary for the benefit thereof.'

He placed the decision upon the ground, that the corporation was clothed with power to act, when they judged it to be necessary for the benefit of the town.

The power in that case was necessarily a continuing power, to be exercised when the corporation thought necessary. There was no limitation as in this case. It is clear that the Chief Justice was of opinion, that if the power had been to 'grade and level,' or to make a by-law for doing so, it would not have been a continuing power.

In the present case, there being no express power to grade streets, it is claimed that the authority to open streets not only confers that power, but that it continues, and may be exercised without limit, except upon proof of malice. But the power to open is not a continuing power, because when once opened a street cannot be opened again. The power to repair does not include that of establishing a new grade. That term means simply to restore what has been injured to its original condition. Bouvier (2 v. L. Dic., 447) says, that 'repairs' means 'that work which is done to an estate to keep it in good order.'

It is clear, that when a street is once opened it cannot be regraded under the power to open, and that under the authority to repair nothing can be done but to restore it to its original condition.

But if the power to open authorized the grading, when it was once exercised the power would be exhausted, and could not be exercised a second time.

The counsel for the plaintiff in error referred also to the following authorities:

1. On the power of the President to fix the grades of the streets. (1 vol. Opin. of Atty's Gen., 368, 416; Burch's Dig. of Atty's Gen., 331; Act of Congress of 1851, 9 Stat. at L., 614; Act of 1852, 10 Stat. at L., 92.)

2. Cases on the right of action on the ground of responsibility. (Rolles Rep., 43; 1 Cramp. and Jar., 20; 9 Barn. and Cres., 705; 16 East, 215; 2 Barn. and Cres., 703; 5 Barn. and Ad., 837; 6 Taun., 23; 3 Burgh. N. C., 468; Selw. N. P., 241; 3 Barn. and Ad., 875.)

Mr. Carlisle, for defendant in error, maintained that the action of the court below, in granting or refusing instructions, depended on the following propositions:

I. The corporation of Washington had power, under its charter, to regrade this street. Its power in this respect is a continuing power, to be exercised, toties quoties, as the public convenience may require. (Gorzler v. The Corporation of Georgetown, 6 Wheat., 593; Act of Assembly of Md., 1797, ch. 56, sec. 6; Van Ness and ux. v. The U.S. and Corporation of Washington, 4 Pet., 280; Char. of 1820, 3 Stat. at L., 587.)

II. The corporation had no power, even by an express ordinance, or contract in any form, to bind itself not to change or alter the grade of the street, even if such grade should be, by the same ordinance or contract, or in any other manner, established. And it follows, of course, that there can be no implied contract, such as is imputed to the corporation, in the premises. The plaintiff could not have acquired any right, by convention, grant, prescription, or contract, express or implied, to have the old grade of the street maintained.

This follows from the preceding point, and is sustained by the same reason and authorities.

III. The case made by the plaintiff in error is one of mere damnum absque injuria. It shows no invasion of any right, but simply a damage resulting from the bona fide and careful exercise of a lawful authority for the public good. The supposed right of the plaintiff, of the invasion of which she complains, is a right ex jure naturae to build a house on the top of a hill in the midst of a city, and to require the city to conform perpetually to her convenience, at the expense of the convenience of everybody else; a right to keep a nuisance; to insist on an impracticable grade of a public street; to destroy the value of all the surrounding lots of ground, in order that she may have more convenient access to the house so built. But it, in any case, such right, ex jure naturae, could be maintained, certainly it does not exist in the city of Washington, where all titles to city lots are held from a common source, and subject to common conditions and liabilities; the original proprietors having conveyed their lands to trustees 'to be laid out for a federal city, with such streets, &c., as the President of the United States for the time being shall approve.' (Burch's Digest, 331; 4 Peters, 283.) The plaintiff was simply the owner of a city lot, as such.

That no action lies in such case, results from the fact that no injury, no violation of her right, has occurred. (4 D. and E., 794, Governor, &c., v. Meredith; 8 Cow., 146, Lansing v. Smith; 1 Denio, 595, Wilson v. The Mayor, & c.; 1 Am. Law Reg., 550, Woodfolk v. Nashville Co., by the Sup. Court of Tenn.; 12 Mo. Rep., 418, St. Louis v. Gurno; 9 Watts, 382, Green v. Borough of Reading; 18 Penn., 187, O'Connor v. Pittsburg; 29 Miss., 37, Withers v. Commissioners, &c.

Mr. Justice GRIER delivered the opinion of the court.

The declaration in this case alleges, in substance, that the plaintiff is owner of a lot in the city of Washington, fronting on K street; that this street was opened in front of her lot in the year 1831, and became a travelled street; that a wall had been erected in front of the lot, to protect it; that shade trees had been planted in front it; that a sidewalk had been laid; 'that defendants unlawfully, wrongfully, and injuriously,' cut down the shade trees, took down the wall, removed the pavement, and dug down the street in front of the premises, thereby obstructing and injuring the ingress and egress to plaintiff's lot and the buildings thereon-injuring their value, depriving her of the shade and ornament of the trees, and compelling her to pay large sums of money to enable her to use and occupy her house.

It must be observed that the gravamen of this case is not a trespass on the property of the plaintiff, or the taking down a wall or removing shade trees thereon; nor the erection of a nuisance on the public highway; nor a wilful, malicious, or oppressive abuse of authority, in order to injure the plaintiff. But the declaration charges that these acts of defendants, in reducing the level of the street, removing trees, pavement, &c., were done 'unlawfully, wrongfully, and injuriously.'

On the pleadings and evidence in the case, the only questions of law that did or could arise on it, were—

1st. Whether the corporation, defendant, had power to change the grade of the street, or acted 'unlawfully and wrongfully' in so doing; and,

2d. If the act was lawful, were the defendants bound to compensate the plaintiff for the injurious consequences to her property?

1. First, then, as to the authority of the corporation.

It is unnecessary, in the consideration of this point, to recur to the early history of the foundation of the city of Washington; suffice to say, the land was originally conveyed to trustees, 'to be laid out as a federal city, with such streets, &c., as the President shall approve.' It has been so laid out, and the streets dedicated to the public. As in all other cities and towns, the legal title to the public streets is vested in the sovereign, as trustee for the public; and consequently in this District they can be regulated only by Congress, directly, or by such individuals or corporations as are authorized by Congress.

The act to incorporate the city of Washington, passed May 15th, 1820, among other specific powers and duties enumerated in the seventh section, has the following: 'To open and keep in repair streets, avenues, lanes, alleys, &c., & c., agreeably to the plan of the city.'

It has been contended that this power, 'to open and keep in repair,' does not include the power to alter the grade or change the level of the land on which the streets, by the plan of the city, are laid out.

But we think such a construction of this clause of the charter is entirely too narrow, and cannot be supported as consonant either with the letter or spirit of the statute. It is the evident intention and policy of this statute to commit to this corporation, as a municipal organ of government, whose members are chosen by the citizens, the care, supervision, and general regulation of the streets, as in other cities and boroughs.

Where sums of money have been specially voted by Congress for the improvement of the city, it is usual to order it to be expended under the supervision of the President. But no inference can be drawn from such legislation, that Congress intended to retain the whole police and regulation of the streets to itself, so as to require a special act to alter the grade of a street, or that the President, in addition to his other duties, has imposed on him that of street commissioner of Washington. The city corporation has the trust confided to them, and the duty imposed upon them, not only of opening the streets of Washington, but of 'keeping them in repair.'

Streets cannot be opened and kept in repair, or made safe or convenient for public use, without being made level, or as nearly so as the nature of the ground will permit. Hills must be cut down and hollows filled up, or, in other words, the road must be graded or 'reduced to a certain degree of ascent or descent;' which is the proper definition of the verb 'to grade.' If the duty imposed on the corporation requires this to be done, the power must be coextensive with the duty. If charged with neglect of their duty, as public officers bound to keep the streets in repair, it would not be a sufficient excuse to allege that the fences and obstructions are removed, and therefore the street is 'opened,' or that it has been kept in as good 'repair' as it was found.

A Court of Quarter Sessions would probably not receive a defence founded on such astute philological criticism of the terms of the statute. Nor could the allegation be admitted, that having once fixed a grade, which is now found improper and insufficient, the corporation has exhausted its power, and has no authority to change the level or grade, in order to keep the street in repair. As the duty is a continuing one, so is the power necessary to perform it.

2. Having performed this trust, confided to them by the law, according to the best of their judgment and discretion, without exceeding the jurisdiction and authority vested in them as agents of the public, and on land dedicated to public use for the purposes of a highway, they have not acted 'unlawfully or wrongfully,' as charged in the declaration. They have not trespassed on the plaintiff's property, nor erected a nuisance injurious to it, and are, consequently, not liable to damages where they have committed no wrong, but have fulfilled a duty imposed on them by law as agents of the public. The plaintiff may have suffered inconvenience and been put to expense in consequence of such action; yet, as the act of defendants is not 'unlawful or wrongful,' they are not bound to make any recompense. It is what the law styles 'damnum absque injuria.' Private interests must yield to public accommodation; one cannot build his house on the top of a hill in the midst of a city, and require the grade of the street to conform to his convenience, at the expense of that of the public.

The law on this subject is well settled, both in England and this country. The cases are too numerous for quotation; a reference to one or two more immediately applicable to the questions arising in this case will be sufficient.

In Callender v. Marsh, (1 Pick., 417,) the defendant, as surveyor of the highways, was charged with digging down a street in Boston, so as to lay bare the foundations of plaintiff's house, and endanger its falling. The authority under which he acted was given by a statute which required 'that all highways, townways, &c., should be kept in repair and amended from time to time, that the same may be safe and convenient for travellers.' 'This very general and exclusive authority,' say the court, 'would seem to include everything which may be needed towards making the ways perfect and complete, either by levelling them where they are uneven and difficult of ascent, or raising them where they should be sunken and miry.' It was held, also, that the law does not give a right to compensation for an indirect or consequential damage or expense, resulting from a right use of property belonging to the public.

In Green v. The Borough of Reading, (9 Watts, 282.)

The defendants, by virtue of their authority to 'Improve and repair,' graded the street in front of plaintiff's house five feet higher than it had been before, and it was held that the corporation was not liable to an action for any consequential injury to plaintiff's property, by reason of such improvement or change of grade in the public street.

In the case of O'Connor v. Pittsburg, (18 Penn. Rep., 187,) a church had been built according to the direction of the city regulator, and by a grade established in 1829. Afterwards, in pursuance of an ordinance, the grade of the street was reduced seventeen feet; the church had to be taken down and rebuilt on a lower foundation, at a damage of $4,000. The authority given to the city was 'to improve, repair, and keep in order the streets,' &c.

The court say, 'We had this case reargued, in order to discover, if possible, some way to relieve the plaintiff consistently with law, but grieve to say we can find none. The law is settled, not only in Pennsylvania, but by every decision in the sister States, except one.'

We are of opinion, therefore, that the instructions given by the court below on these points were correct, and affirm their judgment.


text: Talk:Smith v. Corporation of Washington/Opinion of the Court

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


text:
Lyon v. Bertram

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of California.

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

It was argued by Mr. Brent and Mr. Poe for the plaintiff in error, and Mr. Fessenden for the defendants.

The counsel for the plaintiff in error, after stating their objections to the pleadings in the case, and also those which were founded on the statute of limitations in California, contended that this was not an entire contract for the purchase of the whole cargo, but only for so much of it as was branded Haxall; that the description of the quality was material; that Lyon, if had chosen, could have declined to receive any part of the cargo; that the acceptance of a part, under the circumstances, did not affect his right to repudiate the residue.

Mr. Fessenden contended that the contract was entire; that it was an executed contract; that the term Haxall was descriptive merely, and not material; that if it was material, then it was an express warranty upon which the purchaser must rely, without rescinding the contract; and that the acceptance of a part was an acceptance of the whole.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Lyon v. Bertram


text: Talk:Lyon v. Bertram

title: Talk:Lyon v. Bertram


text:
Lyon v. Bertram/Opinion of the Court

This suit was commenced by the defendants in error, to recover the price for a cargo of flour, bargained and sold to the plaintiff in error, in the city of San Francisco. The judgment of the Circuit Court was rendered upon a special verdict in favor of the plaintiffs in that court. The verdict finds that on the 13th January, 1853, the plaintiffs, and Flint, Peabody, & Co., were, jointly, the owners of a cargo of flour, consisting of two thousand barrels, branded, and which were in fact Gallego, then being on the barque Ork, lying at a public wharf in San Francisco, and composing its entire cargo of flour, which inspected 1,771 barrels superfine, and 229 bad.

The firm of Flint, Peabody, & Co., as agents and part owners, on the day aforesaid, concluded the following agreement with the defendant:SAN FRANCISCO, January 13, 1853.

Sold this day to Joseph H. Lyon, Esq., a cargo of Haxall flour, now on board the barque Ork, lying in this harbor, being about two thousand barrels, on the following terms and conditions, viz: Joseph H. Lyon, Esq., agrees to pay Messrs. Flint, Peabody, & Co., thirty dollars per barrel for such as shall inspect superfine, and twenty-seven dollars per barrel for such as shall inspect bad; payment to be made as it may be delivered, and to be received and paid for on or before the expiration of three weeks from date.

If Messrs. Flint, Peabody, & Co., elect, they can land and store the flour at the expiration of one week, or so much as may remain on board at that time, Mr. Lyon paying storage and drayage expenses.

J. H. LYON.

FLINT, PEABODY, & CO.

On the 25th January, 1853, the defendant applied to Flint, Peabody, & Co., for fifty barrels of flour, so purchased by him, by a written order, as follows:

SAN FRANCISCO, January 25, 1853.

Messrs. Alint, Peabody, & Co., will please deliver Mr. William R. Gorham, or bearer, fifty barrels of flour, out of the lot purchased from the ship Ork, and oblige

J. H. LYON.

Paying them therefor the contract price, amounting to the sum of $1,500, and received from Flint, Peabody, & Co., the following order:

SAN FRANCISCO, January 25, 1853.

Captain of Barque Ork: Please deliver the bearer fifty barrels superfine flour, and oblige

FLINT, PEABODY, & CO.

Fifty barrels of Gallego flour, inspecting superfine, being part of said cargo of flour on board the barque Ork, was delivered from the barque to William R. Golham, a baker, to whom the defendant had sold and transferred the delivery order and the said flour. When the order was made for William R. Gorham, the defendant represented that the flour was Haxall. On the 29th January, 1853, the defendant sold to Dunne & Co. fifty barrels of flour, which he represented to be Haxall, and gave the following order, bearing date on that day:

Messrs. Grey & Doane will please deliver Messrs. Dunne & Co. fifty barrels of Haxall flour from Ork.

J. H. LYON.

The said Dunne & Co., on discovering that the flour was not Haxall, but Gallego, refused to take it, and so notified the defendant. On the 31st of January, 1853, the defendant made further application for one hundred barrels of flour, being part of the flour so purchased as aforesaid, and gave his check on his bankers for the price, and received the following delivery order from Flint, Peabody, & Co., bearing that date:

Capt. Hutchings, Barque Oak: Please deliver to J. H. Lyon, or to the order of Grey & Doane, one hundred barrels superfine flour, and oblige, &c.

The check was not paid on presentation. Upon the refusal of Dunne & Co. to take the flour, the defendant, on learning the fact, notified the plaintiffs that he would not take the flour, and countermanded the payment of the check he had given for the one hundred barrels last mentioned.

On the 3d of February, 1853, the plaintiffs informed the defendant that they were prepared to deliver the remainder of the cargo, and requested the defendant to receive it. And subsequently, on the same day, they addressed him a note, in which they advised him they would sell the flour on the 5th February, at public action, for his account, and would hold him responsible for the difference there might be in the net proceeds of the proposed sale and the contract price, and for charges and expenses, he (Lyon) having declined to take the flour under the contract. All the flour on the barque was of the brand known as Gallego, and the barrels were branded Gallego in printed characters from two to two and one-half inches in length, on both heads. In the opinion of some experts, there existed no difference in the quality or price of the flour of either brand, (Haxall and Gallego,) each inspecting superfine; but, in the opinion of other experts, there was a difference, some preferring the one brand and some the other.

Subsequently to the sale, and up to and including the 28th January, 1853, Gallego and Haxall flour had advanced to $35 per barrel in San Francisco; and between that and the 5th of February the price of both declined to $18 per barrel. On the 5th of February the plaintiffs caused the remainder of the cargo to be sold at public auction, according to their notice to the defendant, for his account, and at a great reduction of price. The verdict does not find any fact to impugn the fairness of this sale. Before this suit was commenced, Flint, Peabody, & Co., assigned their interest in this suit to the plaintiffs, of which the defendant had notice.

The verdict is silent in reference to the negotiations that preceded the contract, and does not inform us whether the cargo was at any time visible to the defendant; nor does it discriminate with exactness the qualities of Haxall and Gallego flour, or affirm that there is any specific difference between them.

It is evident, from the verdict, that the error in the description of the cargo did not bear on the substance, or on any substantial quality of the subject of the sale. The subject of the sale was a cargo of flour of about two thousand barrels, on board of a vessel lying at a wharf in the city; of a quality to be ascertained by an inspection; and from that inspection, and not from the brand, the price was to be ascertained. The brands Haxall and Gallego are understood to refer to different mills in Richmond, Virginia, at which flour is manufactured. The verdict sufficiently determines that the difference between them in the market of San Francisco is inappreciable, at least by the mass of purchasers and consumers. The case clearly does not belong to that class in which the subject-matter of the contract was of a nature wholly different from that concerning which the parties to the contract made their engagements. The brand on the exterior of the barrels of flour was certainly not of the substance of the contract. (Young v. Cole, 3 Bing. N. C., 724; Gompertz v. Bartlett, 2 Ell. and B., 19 Verm. R., 202.)

The defendant does not resist the fulfilment of his agreement for any fraud; nor does the verdict impute any mala fides to the plaintiffs.

The case rests upon these facts. There was a sale of a cargo of flour, at a price dependent upon the fact whether the component parts inspected superfine or bad, which was described as of one brand, but which proved to be of another. There was no material difference in the credit of the brands, and the market price of the flour was but little affected by the question whether the brand was of the one or the other mill.

A portion of the flour has been delivered to, and paid for, and consumed by, the defendant. He made no offer to return this flour. The flour remained in the Ork from the 13th of January till the 31st of January, subject to the exigencies of the contract. During that period, there was no complaint on the part of the defendant. From the 28th of January till the 5th of February, when the refusal to accept the remainder of the flour and the sale of it on account took place, the price of flour was steadily declining.

It may be admitted that the description of the flour as Haxall imported a warranty that it was manufactured at mills which used that brand; and that the purchaser would have been entitled to recover the amount of difference in the value of that and an inferior brand. (Powell v. Horton, 2 Bing. N. C., 668; Henshaw v. Robbins, 9 Met., 83.) But it cannot be admitted that the purchaser was entitled to abandon this contract.

In the note to Cutter v. Powell, in Smith's Leading Cases, the annotator says: 'It is settled, by Street v. Blay, and Poulton v. Lattimore, where an article is warranted, and the warranty is not complied with, the vendee has three courses, any one of which he may pursue. 1. He may refuse to receive the article at all. 2. He may receive it, and bring a cross action for the breach of the warranty. 3. He may, without bringing a cross action, use the breach of warranty in reduction of damages in an action brought by the vendor for the price.' The annotator proceeds to say, 'that it was once thought, and, indeed, laid down by Lord Eldon, in Curtis v. Hanney, 3 Esp., 83, that he might, on discovering the breach of warranty, rescind the contract, return the chattel, and, if he had paid the price, recover it back. This doctrine, which was opposed to Weston v. Downes, Doug., 23, is overruled by Street v. Blay, 2 B. and Adol., and Gompertz v. Denton, 1 C. and Mee., 205; and it is clear that, though the non-compliance with the warranty will justify him in refusing to receive the chattel, it will not justify him in returning it, and suing to recover back the price.'

The second and third propositions of this learned author are indisputable, and have received the sanction of this court. Thornton v. Wynn, 12 Wheat., 183, as modified by Withers v. Greene, 9 How. S.C.. R., 213. The first proposition, concerning the right of the purchaser to reject the article because it varies from the warranty, is an open question. In Dawson v. Collins, 10 C. B. R., 527, (70 E. C. L. R.,) the judges dissent from it. The Chief Justice expressed his favor for the conclusion, 'that the buyer has no right to repudiate the article,' because it did not correspond to the warranty; and Cresswell, Justice, said, 'Where the rule is of an individual and specific thing, the vendee can only defend himself, altogether, against an action for not accepting it, if the thing be utterly worthless, as in Poulton and Lattimore; or, in part, by giving the breach of warranty in evidence in reduction of damages.' And this corresponds with the conclusions of this court in the case of Thornton v. Wynn, 12 Wheat., 183, where very similar language is used.

But while the first proposition of the note in the Leading Cases is a matter of dispute, there is none in respect to the conclusion that the purchaser who has received and used the article, and derived a benefit from it, cannot then rescind the contract. This principle is stated in Hunt v. Silk, 5 East., 449, in which Lord Ellenborough says: 'Where a contract is to be rescinded at all, it must be rescinded in toto, and the parties put in statu quo.' And, 'if the plaintiff might occupy the premises two days beyond the time when the repairs were to have been done and the lease executed, and yet rescind the contract, why might he not rescind it after a twelvemonth on the same account? This objection cannot be gotten rid of. The parties cannot be put in statu quo.' In Perley v. Balch, 23 Pick., the same principle is applied to contracts of sale of chattels. The court say: 'The purchaser cannot rescind the contract, and yet retain any portion of the consideration. The only exception is, where the property is entirely worthless to both parties. The purchasers cannot derive any benefit from the purchase, and yet rescind the contract. It must be nullified in toto or not at all. It cannot be rescinded in part and enforced in part.' In Burnett v. Stanton, 2 Ala. R., 183, the court say: 'A contract cannot be rescinded without mutual consent, when circumstances have been so altered by a part execution that the parties cannot be put in statu quo; for if it be rescinded at all, it must be rescinded in toto.' To the same effect is Christy v. Commins, 3 McLean R., 386; 2 Hill N. Y. R., 288, per C. J. Nelson; Kase v. John, 10 Watts, 107. In Thornton v. Wynn, 12 Wheat., 183, this court say: 'That if the sale of a chattel be absolute, and there be no subsequent agreement or consent of the vendor to take back the article, the contract remains open, and the vendee is put to his action upon the warranty, unless it be proved that the vendor knew of the unsoundness of the article, and the vendee tendered a return in a reasonable time.'

If the verdict had found that the defendant had sustained any damage from the difference in the brands on the flour, the price would have been diminished accordingly; and so the defendant might have been indemnified upon an action commenced by himself, alleging a breach of the contract. But, without considering whether he could refuse to accept any portion of the flour for the variance from the letter of his contract, we decide that he lost this power when he applied to have, paid for, and sold the parcels, on the 25th and 31st of January, 1853.

The defendant pleaded that the several causes of action in the complaint mentioned did not accrue within two years before the commencement of the suit. The code of California provides, that 'an action upon any contract, obligation, or liability, founded upon an instrument of writing, except those mentioned in a proceding section, shall be brought within three years, and within two years if founded upon a contract, obligation, or liability, not in writing, except in actions on an open account, for goods, wares, and merchandises, and for any article charged in a store account. The plea of the defendant does not allege that the cause of action is founded upon a contract, obligation, or liability, not in writing, nor show that it falls within the limitation of two years, as pleaded. The complaint is framed so as to admit evidence of a contract in writing quite as well as an oral contract, and the evidence shows this action is founded on a written contract. The plea should have contained an averment that the cause of action was not in writing, with such other averments as to show that the bar of the statute pleaded was applicable.

A plea cannot be sustained, which rests for its validity upon a supposed state of facts which may not exist. The plea must be an answer to any case which may be legally established under the declaration. Winston v. The Trustees' University, &c., &c., 1 Ala. R., 124.

It was objected that the proof shows that the assignment by Flint, Peabody, & Co., was made to the plaintiffs in the suit, and that the declaration alleges that they assigned their interest in the claim to John Bertram, one of the plaintiffs. The code of California requires that actions shall be prosecuted in the name of the real party in interest, and that all parties having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs. The plaintiffs are shown to be the parties jointly interested in the subject of the action, and in the claim for relief. It is quite immaterial in what proportions they may be concerned. Their case is substantially established, when their joint interest is shown, and the error in respect to the degree of the interest of the several parties is not such a variance as will be considered.

Judgment affirmed.

title: Lyon v. Bertram/Opinion of the Court


text: Talk:Lyon v. Bertram/Opinion of the Court


text:
Hungerford v. Sigerson

THIS was an appeal from the District Court of the United States for the district of Wisconsin.

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

It was argued by Mr. Bradley for the appellant, and by Mr. Cushing and Mr. Gillett for the appellee.

Mr. Bradley admitted that the bill was very inartificially drawn, but contended that there were three grounds upon which the jurisdiction of the court could be sustained.

First. Complicated accounts between the parties.

Second. The breach of the trust with which the said note was clothed.

Third. The want of remedy in the common-law court.

If the bill shows a state of facts well pleaded, which would entitle the complainant either to a discovery or relief, the demurrer must be overruled. (Livingston v. Story, 9 Pet., 658.)

And they are well pleaded if they are material, and stated in terms which may be deemed reasonably certain in their import. (Sto. Eq. Pl., sec. 452, note 1.)

There had been no settlement of accounts between the parties, and the balance owed was uncertain. This note was for twice as much as was claimed by the defendant, and the complainant was not to be sued upon it. Yet he sued and recovered judgment for the whole amount. Equity has jurisdiction to relieve. (Gainsborough v. Gifford, 2 P. Will., 424.)

The defendant thus gained an undue advantage. It is against conscience that he should use that advantage thus improperly gained, and that gives jurisdiction to restrain the proceedings at law. (Eden on Inj., ch. 2, p. 3.)

He could not have availed himself of the defences, because the court of law could neither give adequate relief by account, nor compel a discovery of the facts of that mutual understanding, under which the note was given, as these facts were from their nature private, and therefore known only to the parties. (Bateman v. Willoe; 1 Sch. and Lefr., 204; Marine Ins. Co. v. Hodgson, 7 Cr., 332.)

The counsel for the appellee said that in the bill there is no allegation that a fraud was committed to induce the complainant to give the note;

Nor any that the defendant transferred it contrary to promise;

Nor any that the defendant misled him so as to prevent his defending the suit;

Nor any that he could not have defended the suit successfully;

Nor any that he could not have made proof of all the facts necessary for a successful defence on that trial of the cause;

Nor any that he has no relief except in equity, nor that he has no remedy at law;

Nor any that the complainant has offered to settle with the defendant, and to pay him what was justly and equitably his due;

Nor any that he stated the whole case to counsel, when he was advised that he had no defence on said note which he could make in that suit;

Nor any that the advice of counsel referred to was before the judgment upon said note;

Nor any that his failure to defend was occasioned by such advice.

FIRST.-A court of equity has no jurisdiction where the party has had a full remedy at law.

Except under some special statute, no court of equity can entertain jurisdiction without the complainant averring that he has no remedy at law. In this case, the bill was filed in the District Court of the United States, under the powers conferred by the judiciary act. The sixteenth section of this act provides, 'that suits in equity shall not be sustained in either of the courts of the United States, in cases where plain, adequate, and complete remedy may be had at law.' (See Gordon v. Hobart, 2 Sumner, 401; Baker v. Biddle, 1 Baldwin, 405.)

The omission of the party to avail himself of his defence at law cannot confer jurisdiction. If the party has once had an opportunity to defend himself, it is the same to both parties, as if he had actually done so. It ends the matter.

SECOND.-Where a party failed to defend a suit at law, equity will not relieve, except when the defence was not available at law, or where he was prevented by fraud, accident, or wrongful act of the other party, without any negligence or fault on his part.

This proposition is in the very words of the Court of Appeals in New York, in Vilas v. Jones, 1 Coms., 274, pp. 281, 282.

It is supported by a long current of decisions.

In More v. Bayley, 1 Breese, 60, the court said, that if 'a defendant neglects to make his defence at law, a court of equity will not relieve him.'

In Cowan v. Price, 1 Bibb, 173, the same rule is laid down.

In Williams v. Lee, 3 Atk., 224, Lord Hardwicke held in the same way.

In Winthrop's case (3 Desausure, 310, p. 324) this point was ruled in the same way.

In Bateman v. Willoe, 1 Schoales and Lefroy, 201, p. 204, after laying down the same rule, Lord Redesdale says, 'it is not sufficient to show that injustice has been done, but that it has been done under circumstances which authorize the court to interfere.'

title: Hungerford v. Sigerson


text: Talk:Hungerford v. Sigerson

title: Talk:Hungerford v. Sigerson


text:
Hungerford v. Sigerson/Opinion of the Court

In Lansing v. Eddy, 1 John. Ch. R., 49, Chancellor Kent said, that an injunction will not be granted on a charge of usury, and the party seeks a discovery, 'for the usury would have been a good defence at law; and no reason was given why the defendant did not seek the discovery while the suit at law was pending.' 'Chancery will not relieve against a judgment at law, unless the defendant was ignorant of the fact in question pending the suit, or it could not be received as a defence.'

In Simpson v. Hart, ib., 91, p. 98, this doctrine was reiterated.

In Barker v. Elkins, ib., 465, it is repeated; and the court say, 'if the defendant has not used due diligence in applying for a discovery, if necessary to aid him, he cannot be relieved.'

In Norton v. Wood, 5 Paige, 249, Chancellor Walworth expressly laid down the same rule. It is recognised by him in Post v. Boardman, 10 Paige, 580.

In Perrine v. Striker, 7 Paige, 598, he repeats the rule, and says, 'if there are circumstances in the case which rendered it impossible to obtain relief in the suit at law, they should be stated in the bill.'

In Thompson v. Berry & Van Buren, 3 John. Ch. R., 395, it was held, that where a party suffered judgment to pass against him without making his defence or applying for a discovery, equity could not relieve him. This case was affirmed on appeal in the Court of Errors, in the 17th of John. R., 436, by the unanimous opinion of the court.

In Penney v. Martin, 4 John. Ch. R., 566, Kent, Chancellor, held that 'where there was neither accident nor mistake, misrepresentation nor fraud,' the Court of Chancery had no jurisdiction to afford relief, although he had lost his remedy at law through ignorance of a fact which he might have learned with due diligence and inquiry, or by bill of discovery.'

In McVickar v. Walcott, 4 John. R., 510, the same rule was declared in the Court of Errors.

In Green v. Dodge, 6 Ham. Ohio R., 80, the Supreme Court proceed upon the same ground.

In Bartholomew v. Yaw, 9 Paige, 165, Chancellor Walworth goes over the whole ground, and reasserts the principles above laid down.

In Minturn v. The Farmers' Loan and Trust Company, 3 Coms., 498, the Court of Appeals say: 'Where an action at law was commenced to recover upon a contract alleged to be usurious, and the defendant in the action filed a bill in chancery, praying for an injunction to restrain the proceedings, but alleged no defect in the means of establishing his defence at law, the bill could not be sustained.'

These cases abundantly settle the point above laid down. If the note in question was given for ten thousand dollars, when only four or five thousand were really due, it cannot be questioned that there was a good defence at law to so much as was not equitably due.

1. If there was a defence, it was a legal one, and would have been available at law; and this is not denied in the bill.

2. The bill does not aver that complainant was unable to prove his defence in the action of law. But if he could not prove it without a discovery, he was bound to file a bill for such discovery, so as to use the answer upon the trial.

3. There is no allegation in the bill that a misrepresentation was made, or fraud practiced upon complainant, by Sigerson, which prevented his making his defence.

4. No excuse whatever is offered for not making his defence in the suit at law, except that his counsel told him he had no defence to the note. He does not state that this advice was given pending the suit at law, and the expression used clearly indicates that it was not. But, however that may be, it is clear that his defence was a legal one, and available at law if it existed. If he was wrongfully advised, that is a question between him and his counsel. If the latter misled him, Sigerson is not responsible for it, nor can it give a court of equity jurisdiction. If, through wrong advice, inattention, or otherwise, he failed to avail himself of his defence, he must abide the consequences. A court of equity cannot relieve him.

Mr. Justice McLEAN delivered the opinion of the court.

This is an appeal from the District Court for the district of Wisconsin.

In his bill, the complainant states that prior to the 1st of December, 1851, he had numerous business transactions with the defendant, who had made advances of money to him on divers occasions, and payments had been made to him by the complainant. In a conversation in relation to their accounts, the defendant admitted the complainant was indebted to him only in about the sum of four thousand two hundred dollars; and on that day the defendant proposed to the complainant that he should execute to the defendant a promissory note for the sum of ten thousand dollars, payable one day after date, which he wished to use as a collateral security on which to raise money; and he agreed not to sell or dispose of the same, or urge the complainant for the payment of the note, but would indulge him until he could make collections. And having unlimited confidence in the defendant, and feeling under many obligations to him for his various acts of kindness, the complainant made and delivered to the defendant, on the 1st of December, 1851, a note of hand for $10,000, payable one day after date, to the order of John Sigerson, for value received, without defalcation or discount, negotiable and payable at the Bank of the State of Missouri. And the complainant avers that the note was given under the circumstances and for the consideration stated, and on no other or different account; that since the date first above stated, he and the defendant have had no dealings whatever.

And the complainant alleges that on the 10th of August, 1852, the defendant caused a suit to be brought against him on the above note, and on the 11th of January, 1854, a judgment was recovered for $11,258.33 and costs. And the complainant says the judgment is unjust, in so far as it exceeds in amount the sum of four thousand two hundred and seventy-five dollars and interest.

And the complainant prays the defendant may be enjoined from collecting such part of the judgment as exceeds the sum he owes to the defendant, and this sum he offers to pay. Numerous interrogatories to the defendant are stated in the bill, designed to show the money transactions between them, and the amount due by the complainant to the defendant.

A demurrer was filed to the bill, which, on argument, was sustained, and the bill dismissed at the costs of the complainant, on which an appeal was allowed.

The subject-matter of this controversy arises out of mutual dealings between the parties, and the consideration on which the note stated in the pleadings was given. There is no allegation in the bill that adequate relief could not be had at law. There is no charge of fraud, or that the note had been assigned contrary to the agreement; nor that, by the contrivance or unfairness of the defendant, a remedy was not had at law; nor is there anything in the bill from which the court can infer a discovery is necessary to reach the justice of the case.

Where a party has failed to make a proper defence at law through negligence, equity will not aid him. If by accident or fraud such a defence has been prevented, a court of equity may grant relief.

When the decree below was pronounced on the demurrer, the complainant, by application to the court, might have asked leave to amend his bill, which the court, as a matter of course, would have allowed. But he prayed an appeal to this court, resting his whole case on the bill. And as it contains no averments authorizing relief in equity, none can be given.

The decree of the District Court is affirmed.


text: Talk:Hungerford v. Sigerson/Opinion of the Court


text:
Grant v. Poillon

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

It will be perceived, by the caption, that Flitner was one of the libellants, and, as he was also a member of the Constellation Lumber Company, he was on both sides of the case.

The circumstances under which the libel was filed are stated in the opinion of the court. The District Court dismissed the libel; and upon an appeal, this decree was affirmed by the Circuit Court. The libellants then appealed to this court.

The case was argued by Mr. Goodrich for the appellants, and submitted on a printed argument by Mr. Donohue.

Mr. Goodrich made the following points, viz:

I. The contract which is set forth in the bill of lading, and the services performed under it, appertain to the admiralty and maritime jurisdiction, and the libellants are entitled, prima facie, to its assistance.

II. The libellants, as owners of the ship, have not made any agreement with the owners of the cargo, by which the rights or remedies of the libellants, derived from the contract set forth in the bill of lading, have been diminished.

III. The agreement which Flitner made with the respondents does not purport to bind the owners of the ship; Flitner, as master, or as part owner, had no implied authority to bind the ship, or its owners, to such an agreement, and no express authority to that effect is shown.

IV. Assume that some portion of the freight-money would be due to Flitner, upon a statement of an account between the owners of the ship; and that Flitner, by agreement with the respondents, (to which the ship and its owners were no party,) is bound to contribute to the payment of the freight-money, and thereupon, to the extent of such contributory share, the respondents have an equity against Flitner to retain his share of the freight-money; such equity does not change the character of the contract set forth in the bill of lading, or the rights of the libellants under it, or take away the admiralty and maritime jurisdiction which attached, as an incident to the contract, if I may so say, the moment it was entered into, and continued, when the libel was filed.

a. The contract into which the owners of the ship entered is entirely within the admiralty and maritime jurisdiction. If they had made a contract principally appertaining, in its subject-matter, to some other jurisdiction, and only incidentally embracing matters of a maritime character, they might have been obliged to resort to a court of common law, or to a court of equity; but not having entered into any such contract, they are not excluded from the admiralty by any equities which the respondents may have against Flitner, by reason of a contract with which neither the ship nor its owners are in privity, and which has no connection with the contract evidenced by the bill of lading. (The Pacific, 1 Blatchford, 569; Le Gaux v. Eden, Douglas, 606.)

V. There is no averment, in the answer of the respondents, that Flitner has not contributed to them all which he was bound to contribute; it contains no averment that any sum, upon a statement of an account between the owners of the ship, would be due to Flitner from the other part owners. There is no foundation for any subsisting equity in favor of the respondents.

VI. Flitner, as master, in making the contract set forth in the bill of lading, undertook to bind the owners of the ship, including himself, as the party on the one side contracting, to and with the owners of the cargo, excluding himself, as the contracting party, on the other.

a. The libellants, from the facts in proof, have a right to say that the respondents, knowing their relation to Flitner, meant to bind themselves in the manner suggested. (Brown on Actions at Law, 133, 134; Robson v. Drummond, 2 B. and Ad., 303; Sims et al. v. Bond, 5 B. and Ad., 389.)

c. The respondents having received the consideration and benefit of the contract, set forth in the bill of lading, which they entered into with Flitner, the agent of the libellants, cannot in any manner, or for any purpose, set up a private agreement made by themselves with Flitner, so as to defeat or impair the rights or remedies of the libellants, under their bill of lading. (Catts v. Phalen, 2 How., 381; Bradford et al. v. Williams, 4 How., 588; Van Rensselaer v. Kearney, 11 How., 326; Curran v. Arkansas, 15 How., 309; Philadelphia, Wilmington, and Baltimore Railroad v. Howard, 13 How., 326; Comer v. Jackson, 4 Pet., 83 to 87; Comth. v. Heirs of Audre, 3 Pick. Rep., 324; The Repulse, 2 Wm. Robinson Rep., 399; Pitt v. Chappelow, 2 M. and W., 6, 15, 19, 20; The Frederick, 1 Dodson Adm. Rep., 266; Bacon v. Robertson, 18 How., 480.)

d. The libellants could not have been compelled to make delivery of the cargo without payment of freight; and upon refusal by the respondents to pay, might have had a sale under the admiralty; the respondents, upon an offer to pay freight, and a refusal of the libellants to deliver the cargo, might have proceeded against the libellants in the admiralty, and the libellants could not have resisted by pleading the private agreement of Flitner with the respondents.

VII. The non joinder of Flitner, as party respondent, cannot avail as ground of exception or defence.

a. It should have been set up by way of exceptive allegation, and not in the answer. (Reed v. Hussey, Blatch. and Howl., 525; 2 Conkling Adm. Juris., 583, 584, 585; Pratt v. Thomas, Ware Rep., 427; Certain Logs of Mahogany, 2 Sum. Rep., 589; Sheppard v. Graves, 11 How., 509; Conard v. The Atlantic Ins. Co., 1 Peters, 386, 450; De Wolf v. Rabaud, 1 Peters, 476, 498; Sims v. Handley, 6 How., 1; Smith v. Kernochen, 7 How., 198; Evans v. Gee, 11 Peters, 80.)

b. If it may be set up in the answer, it must be regarded as an exceptive allegation; and as such it is insufficient, because it does not show who are the owners or members of the Constellation Lumber Company, or that they are unknown and cannot be described.

c. Flitner, as master and part owner of the ship, is a proper party libellant; the respondents are estopped, by their contract with him, as the agent of the libellants, to set up an adverse private interest created by themselves.

Mr. Goodrich cited, also, the following authorities: Waring v. Clark, 5 How., 541; Parsons v. Bulford, 3 Peters, 447; The Catherine, 6 Notes of Cas. Ecc. and Mar. Supp., 43, 49; Mereton v. Gibbens, 3 D. and E., 267; The Repulse, 5 Notes of Cas. Ecc. and Mar., 348, 350, 351; Abbott on Shipping, 7 Lon. edi., 105, sec. 4; The Lady Campbell, 2 Hag. Adm., 14, note; Willard v. Dorr, 3 Mason, 161, 171; The England, 5 Notes Cas. Ecc. and Mar., 173, 174; Collyer on Partnership, 4 Am. edi., sec. 719; Greenleaf v. Queen, 1 Peters, 149.

Mr. Donohue made the following points:

First. Flitner was a proper party respondent in the court below; and until he is made a party, no further proceedings should have been had in the court below; and this was no ground for exception. The only ground for exception to the libel for the causes is rule XXXVI, of the Supreme Court. The persons composing the so-called Constellation Lumber Company, of which he was one, being partners, are all liable in solido; and the objection being taken by answer, they cannot proceed until he is made a party defendant.

Second. Ships being made 'to plough the seas, and not lie by the walls,' and as all the owners owning from a sixty-fourth to a half cannot act at once, one owner must. (See Story on Partnership, sec. 418.) And his contracts are the contracts of all in the employment of the vessel (Story on Agency Part., sec. 419) or her repairs. Flitner was not only master, but part owner, acting for all.

Third. Supposing Flitner to have only been master, the facts show a ratification of his act, and full authority.

1. The vessel in New York, without cargo, with all the owners within one day (by mail or travel) of the vessel, they of course knew what was going on.

2. A contract, made 22d September, to go perhaps to Callao at one freight, perhaps to the Sandwich Islands at another, perhaps to California at a different one-under this, goods were shipped, 12th of November, nearly two months after. Is it to be supposed that a vessel of this size should be about starting on such a voyage, without the other owners knowing and approving of the act? Is this a fair conclusion of law or fact?

3. Their entire approval and even ratification of his act is apparent from all the circumstances.

Fourth. The libellants, including Flitner, were all partners in the sailing of the vessel. (Abbott on Shipping, p. 111; Story on Partnership, secs. 441, 444, 408.) And notice to one is notice to all. (See Story on Partnership, secs. 107, 108.) They were therefore chargeable with notice of this contract when it was made, and have never disapproved of it, if they had the right. They had notice from 22d of September to 12th November, before the ship sailed, with one partner acting, and did not attempt to disaffirm.

Fifth. The libellant, Flitner, is liable individually for the whole debt claimed to be due from the respondents to the libellants, as one of the partners in the Constellation Lumber Company, and he could be compelled to pay, and be left to his action for a settlement with his copartners. A payment to him, as one of the owners of the whole debt, would discharge the indebtedness of the company to the owners of the ship, and leave them to their account for a settlement against him in equity. (Story on Part., sec. 419.)

Sixth. If Flitner is, in fact, the creditor of his co-owners, exclusive of this claim, then, in law, such debt due from them to him operates to extinguish the debt to the whole jointly; for with one the other is paid. It nowhere appears that Flitner is, in fact, their debtor, and most likely is their creditor; and he now seeks in this way to collect out of his partner, money not of right payable to him or them. (See Abbott on Shipping, pp. 130, 131, sec. 5; see, as to such rights, Story on Part., sec. 406.)

Seventh. The whole of the facts of this case show it to be one of purely equitable cognizance.

1. A captain and partner, owner in a ship wanting freight, entering on her behalf into a bargain to get a cargo, simply to employ that vessel.

2. The purchase, by a company, of which such owner is one, of the cargo, for the purpose of shipment, and a loss of all the outlay, and $2,300 besides.

3. That the ship realizes $11,000, and over, on the shipment.

4. Large claims on the part of the copartners for the detention of the cargo, and other acts of the captain.

Under these circumstances, equity would certainly give the partners owning that capital some show in the distribution of the remnants, as well as the ship her freight; but this is an attempt, by bringing the case into a court not competent to fully dispose of the matters, and clogged with restraints, to avoid the just responsibility the parties have assumed, and to make the Poillons pay the whole, (besides losing their investment,) of which they should only pay one-half.

Eighth. But suppose, as has been and is contended by the libellants, that the bill of lading is entirely independent and distinct of the original contract, and has no necessary connection with it, then this case assumes a phase which would prevent a recovery in any form of action, or in any forum, because—

1. By the terms of the bill of lading, the cargo is consigned to one of the libellants, and a part owner of the ship.

2. The case shows that he accepted the consignment, and actually sold and disposed of the property consigned.

3. By law, having accepted the consignment, he became liable for the payment of the freight; and, by the terms of the bill of lading, he actually covenants to pay the freight reserved in it 'unto William L. Flitner, or his assigns, he or they paying freight.' (Vide bill of lading.)4. This case would present the anomaly of a party suing on an instrument whereby not only by law he is himself liable for the payment of the

Mr. Justice McLEAN delivered the opinion of the court.

title: Grant v. Poillon


text: Talk:Grant v. Poillon

title: Talk:Grant v. Poillon


text:
Grant v. Poillon/Opinion of the Court

This is an appeal in admiralty from the Circuit Court for the southern district of New York.

The libellants, Grant and others, are the sole owners of the ship Constellation, and they bring an action of affireightment, civil and maritime, against the respondents, and allege that William L. Flitner was master of the ship; that the respondents were copartners, under the name of the 'Constellation Lumber Company;' and that, on or about the 12th November, 1849, they agreed to ship on board the Constellation, then lying in the port of New York, 230,655 feet of lumber and 29,700 cypress shingles, to be delivered at the port of Valparaiso, Sandwich Islands, or San Francisco, unto the above-named Flitner, or his assigns, he paying the freight upon the same. The ship proceeded on her voyage, and delivered the lumber and shingles unto the said William L. Flitner, at San Francisco, on or about the ___ day of _____, in the year 1850. That there was due for the freight of the lumber, with primage, the sum of $13,944.02, of which sum Flitner paid $11,494.93, which were the net proceeds of the lumber, leaving a balance of $2,449.09 due and unpaid; and it is averred that Flitner, acting as consignee, and in making sale of the lumber, was the agent of the respondents, and a decree for the payment of this balance by the respondents is prayed.

The respondents deny that they compose the company, and that Flitner acted as their agent, &c.; and they say that the lumber was shipped on account of the said vessel and of said company, the said vessel being interested in said company, and that the transaction was a partnership one, and not a subject of jurisdiction in this court; that Flitner, named as a libellant, was and is interested, and one of the parties in the 'Constellation Lumber Company,' and is a proper party respondent herein; that the subject-matter of the suit is not within the admiralty or maritime jurisdiction of this court, and of which it has no cognizance.

It was agreed that ten persons named-about the 22d of September, 1849-of whom William L. Flitner was one, constituted the lumber company, each individual taking one share, not to exceed in value five hundred dollars, with the exception of Flitner, who took two shares, and Hicks and Bailey also took two. That Flitner was the agent of the company and the consignee, a commission of five per cent. to be paid to him; that the ship Constellation belonged to the libellants, and that Flitner was master and part owner; that the lumber company purchased the cargo, and it was shipped the 12th November, 1849, and a bill of lading was signed by Flitner.

The proof shows that the lumber was sold at San Francisco for the prices stated, and that the proceeds of the sale, after deducting commissions, fell short of paying the freight, the sum named.

The principal question is, whether the case made is within the admiralty jurisdiction. That it would not be within the admiralty jurisdiction in England is clear. In general, contracts upon land, though to be executed on the sea, and contracts at sea, if to be executed on the land, are not cognizable by the English admiralty. There are some exceptions to this rule in that country; but none, it is believed, which affect the question now before us. There are conflicting decisions as to the admiralty jurisdiction in England, and also in this country. It may be difficult, if not impracticable, to state with precision the line of this jurisdiction, but we may approximate it by consulting the decisions of our own courts.

In the case of Willard v. Dorr, 3 Mason, 91, it was held, 'no suit for services performed by the master, as a factor, or in any other character than that of master, is cognizable in the admiralty.' And again, in Plummer v. Will, 4 Mason C. R., 380, it was said, 'a contract of a special nature is not cognizable in the admiralty, merely because the consideration of the contract is maritime. The whole contract must, in its essence, be maritime, or for compensation for maritime service.' In 11 Peters, the Steamboat Orleans v. Phoebus, it was said the admiralty has no jurisdiction in matters of account between part owners. And, further, 'the jurisdiction of courts of admiralty, in case of part owners, having unequal interests and shares, is not, and never has been, applied to direct a sale upon any dispute between them as to the trade and navigation of the ship engaged in maritime voyages, properly so called.' (Ib.)

The jurisdiction of courts of admiralty is limited, in matters of contract, to those, and to those only, which are maritime. (Ib.)

An agreement by the master of a vessel to pay wages, may be sued upon in the admiralty; but a stipnlation in the same contract to pay a sum of money in case the voyage should be altered or discontinued, can be enforced only at common law. (L. Arira v. Manwaring, Bee's Rep., 199.) The admiralty jurisdiction of the District Courts of the United States, being exclusive, cannot be extended to cases of law or equity, cognizable by the Circuit and State courts, under the 11th section of the judiciary act. (1 Baldwin, 554.)

A contract between two persons, one of whom had chartered a vessel, whereby he was to act as master, and the other as mate of the vessel, and the two were to share equally in the profits of the contemplated voyages, was held not to be within the admiralty jurisdiction. (The Crusader, Ware's Rep., 437.) A distribution cannot be claimed in the admiralty, except by those who have a lien. (1 Pet. Ad., 223.)

The lumber company was formed to engage in an enterprise of shipping lumber to San Francisco. Twelve shares were taken by the company, consisting of ten persons, each having one share of the value of five hundred dollars, and two of them had two shares each, one of them being the master of the vessel. He was also a part owner of the vessel, the consignee of the cargo, and had a right of primage. As part owner of the vessel, he was entitled to his share of freight; and as being a member of the lumber company, having two shares in it, he was proportionately liable for the freight. In his capacity of master he was entitled to primage, and as consignee he was also entitled to compensation. Now, this individual, in interest, is both plaintiff and respondent, and has claims in his capacities of master, consignee, and agent. The proceeds of the sale of the cargo, after paying commissions, left a balance due for freight of $2,449.09.

Here is a complicated account to adjust, apportioning the loss between the members of the lumber company, exacting from them what may be necessary, not only to pay the balance of freight due, but whatever may be required to discharge what may be due to the master as part owner of the ship, as master, consignee, or agent, at the same time holding him liable, as having two shares in the lumber company. And in an enterprise in which the whole of the capital has been sunk, leaving a large sum due for freight, it would seem that some inquiry might reasonably be made into the conduct of the master in the various capacities in which he acted. And it is probable that, to settle the controversy, a procedure against the members of the lumber company may become necessary, to compel them to contribute respectively and equally what may be necessary to meet the exigency. It is clear that the exercise of the powers indicated do not belong to a court of admiralty, but are appropriate to a court of chancery.

The decree of the Circuit Court is affirmed, with costs.

title: Grant v. Poillon/Opinion of the Court


text: Talk:Grant v. Poillon/Opinion of the Court


text:
Hyde v. Stone

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the castern district of Louisiana.

On the 2d of January, 1850, Stone, being then in New Orleans, purchased from Hyde & Oglesby a bill of exchange, of which the following is a copy, with the notarial protest thereof.

$1,500.

NEW ORLEANS, January 2d, 1850.

Sixty days after sight of this second of exchange, first unpaid, pay to the order of ourselves fifteen hundred dollars, value received, which place to account W. Barton, as advised.

HYDE & OGLESBY.

To P. Frothingham, Esq., Boston.

Endorsed: Pay H. L. STONE.

HYDE & OGLESBY.

H. L. STONE,

By H. W. HERBERT, Att'y.

[Acceptance on face:] January 15, 1850.

PETER FROTHINGHAM.

COMMONWEALTH OF MASSACHUSETTS,

Suffolk, City of Boston, ss:

On this nineteenth day of March, in the year of our Lord one thousand eight hundred and fifty, I, Henry Clark, notary public, by legal authority admitted and sworn, and dwelling in the city of Boston, at the request of J. J. Loving, Esq., cashier North Bank of Boston, went with the original bill of exchange, of which the foregoing is a true copy, to the counting-room, in this city, of Peter Frothingham, the acceptor, and presenting said bill to him, demanded payment thereof, the time therein limited and grace having elapsed, to which he answered, that said bill would not be paid.

I sent notice of the non-payment thereof to the drawers and first endorsers, requiring payment of them, by mail, to New Orleans.

Wherefore I, the said notary, at the request aforesaid, have protested, and by these presents do solemnly protest, against the drawers of said bill, and endorsers, acceptor, and all others concerned therein, for exchange, re-exchange, and all costs, charges, damages, and interest, suffered and sustained, or to be suffered and sustained, by reason or in consequence of the non-payment of said bill.

Thus done and protested, in Boston aforesaid, and my notarial seal affixed, the day and year last written.

(Signed) HENRY CLARK, [seal.]

Notary Public.

Stone brought suit upon this bill in the fifth District Court of New Orleans, in March, 1853; whereupon, the defendants filed an exception to the jurisdiction of the court, upon the ground that they had previously made a surrender of their property to their creditors in the third District Court of New Orleans, and that all proceedings were stayed against them. The exception further stated that the plaintiff was put upon their schedule as a creditor; wherefore they prayed that the suit of plaintiff be transferred and cumulated with the insolvency proceedings in the third District Court of New Orleans.

On the 31st of May, 1853, the fifth District Court sustained the exception, and ordered the costs to be paid out of the mass of property surrendered.

On the 1st of May, 1854, Stone brought his action in the Circuit Court of the United States.

The defendants pleaded in abatement, that Stone was a citizen of Louisiana, and therefore incompetent to sue in the Federal court, and in bar that the question had become res judicata by the maintenance of the exception in the fifth District Court. The case went to trial upon an agreed statement of facts, whereof those recited above are the most material; and at November term, 1855, the court gave judgment for the plaintiff. The defendants brought the case to this court by a writ of error.

It was argued by Mr. Benjamin for the plaintiffs in error, and Mr. Taylor for the defendant.

The argument of Mr. Benjamin upon the effect of the proceedings in insolvency is omitted, because the court did not think that question was raised by the record in the case. His point with regard to the notice of the dishonor of the bill was thus stated:

I. The defendants are discharged from responsibility as drawers and endorsers of the bill, by reason of the laches of the holder, in failing to give notice of non-payment.

The law of Louisiana on this subject has reference exclusively to protests made by notaries of that State. (Acts of 1855, p. 48.)

By the law merchant, it is clear, without citation or authorities, that the protest of a foreign bill of exchange is not legal evidence of any other fact than that of presentment and refusal to pay. A statement volunteered by the notary, that he put into the post office a notice of protest to the drawer, is not legal evidence of the fact.

Even if the law of Louisiana were applicable to the case under consideration, the evidence is insufficient. The protest, as annexed to the petition, and made part of it, shows that it is not such a protest as is alone permitted by that law to be received as proof of notice. It is not signed by two witnesses. (McAfee v. Doremus, 5 How., 53.)

II. In the absence of proof of notice, an attempt is made to fasten responsibility on defendants by proof of waiver of notice.

The waiver is said to result from the acknowledgment of the debt set forth in the eighth article of the statement of facts.

To this presumption of waiver there are two fatal objections:

The first is, that it is nowhere stated at what date the acknowledgment was made. If the schedule of insolvency was filed before the maturity of the bill, (and there is no proof of the contrary,) it was still the duty of insolvents to place the bill on their schedule as a debt due by them, and to put the name of the holder, if known, in the list of creditors. (Bainbridge v. Clay, 3 Martin's U.S., 262; Deslix v. Schmidt, 18 Louisiana Rep., 466.)

The second is, that an acknowledgment of the indebtedness, if it ever can be considered to amount to a waiver of laches, is confined to cases where the party making the acknowledgment knew of the laches. The proof of his knowledge of the laches must be clear, or no waiver will be presumed. (Story on Notes, secs. 362, 363, and notes; Story on Bills, sec. 320; Chitty on Bills, p. 500, Am. edi., 1842; Thornton v. Wynn, 12 Wheat., 183.)

In Louisiana, the doctrine is extremely rigid. (See the cases and principles collected in Hennen's Digest, Verbo, Bills and Notes, XI.)Mr. Taylor, for the defendant in error, made the following points:

I. The judgment on the exceptions filed in the case in the third District Court of New Orleans, in the State of Louisiana, was not a final judgment, and is no bar to any other proceedings on the cause of action set up in the case.

II. The fact that H. L. Stone, the plaintiff in the court below, was a citizen of Massachusetts, proved on the trial, and that the bill of exchange sued on was bought by him individually, and with his personal funds, as shown by the statement of facts agreed to and signed by the parties, gave the Circuit Court of the United States jurisdiction. (Constitution U.S.)

III. The defendant in error, H. L. Stone, performed no act to make himself a party to the proceedings in insolvency in the third District Court of New Orleans.

IV. The plaintiffs in error are legally bound to pay H. L. Stone the amount of the bill of exchange sued on, because, first, legal notice of its protest for non-payment was given them; and, second, they acknowledged it to be due and owing by them in their schedule filed in the proceedings in their insolvency. (Shed v. Brott, 1 Pick., 401.)

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Hyde v. Stone


text: Talk:Hyde v. Stone

title: Talk:Hyde v. Stone