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United States v. Sutter/Opinion of the Court

This cause comes to this court by appeal from a decree of the District Court of the United States for the northern district of California, which affirms a sentence of the board of commissioners to settle private land claims in that State, in favor of the appellee, upon a claim to thirty-three square leagues of land in the valley of the Sacramento river. The record shows that the claimant, a native of Switzerland, immigrated to the Department of California about the year 1839, was naturalized as a citizen of Mexico, and with the leave of the Government formed a settlement near the junction of the Sacramento and American rivers, which he designated New Helvetia. The country at the time was uninhabited, except by bands of warlike Indians, who made frequent depredatory incursions upon the undefended settlements to the south and east of this place. In two or three years after his arrival, the claimant was commissioned by the Governor of California to guard the northern frontier and to represent the Government in affording security and protection to its inhabitants against the invasion of the Indians and marauding bands of hunters and trappers, who occasionally visited the valley for plunder. In the year 1841 he commenced the erection of a fort at New Helvetia, at his own expense. It was surrounded by a high wall, and was defended by cannon. Within this fort there were dwelling-houses for his servants and workmen, and workshops for the manufacture of various articles of necessity. There was a gristmill, tannery, and distillery, attached to the establishment. A number of Indians were domesticated by him, and contributed to cultivate his fields of grain, and to defend the settlement from more savage tribes. He was possessed of several thousands of horses and neat cattle, which were under the care of his servants. There were collected at different times from twenty to fifty families, and there were in the course of years some hundreds of persons connected with this settlement. He is described as having been hospitable and generous to strangers, and the Governors of California bear testimony to the vigor with which he performed the duties of his civil and military commission.

In March, 1852, he placed before the board of commissioners a claim for eleven leagues of land, to include his place at New Helvetia, and extending thence north, which were granted to him by Juan B. Alvarado, Governor of California, 18th of June, 1841.

In March, 1853, he amended his petition and claimed an additional quantity of twenty-two leagues, which were granted to him and his son, John A. Sutter, the 5th of February, 1845, by Micheltorena, the Governor of California; this being the surplus (sobrante) contained within the limits from which his first grant was to be fulfilled. The espediente submitted to the board, with the grant of Alvarado, and as a part of it, represents that he is in possession of New Helvetia, and that his enterprise there had the sanction of the Government, and had been prosperous; that he had associated with him industrious families; and that, besides the advantage to himself, he had awakened industry in others, and had also, by the strength of his company, formed a strong barrier against the savage Indians. He asks to enlarge his establishment, by introducing twelve families, and for this purpose solicits a grant of eleven leagues at his establishment of New Helvetia, from the Governor, together with his powerful influence before the supreme Government of the nation, that its approbation might be given. The Governor recognises the truth of the statements in the espediente, and declares that he has been sufficiently informed that the land is vacant and suitable for the purpose of the grantee. He grants to the applicant, 'for him and his settlers, the said land, called New Helvetia, subject to the approbation of the supreme Government and of the Department Assembly,' and subject to four conditions. The third and fourth relate to the boundaries of the land and the consummation of the title, and are as follows: '3d. The land of which donation is made to him is of the extent of eleven sitios de ganado mayor, as exhibited in the sketch annexed to the proceedings, without including the lands overflown by the swelling and current of the rivers. It is bounded on the north by los Tres Picas (three summits) and the 39°41'45" north latitude; on the east by the borders of the Rio de las Plumas; on the south by the parallel 38°49'32" of north latitude; and on the west by the river Sacramento. 4th. When this property shall be confirmed unto him, he shall petition the proper judge to give him possession of the land, in order that it may be measured, agreeably to ordinance, the surplus thereof remaining for the benefit of the nation, for convenient purposes. Therefore, I order that this title being held as firm and valid, that the same be entered in the proper book, and that these proceedings be transmitted to the excellent Departmental Assembly.'

The first inquiry in cases like this is, has the authenticity of the grant been established? This was not questioned in the District Court, but in this court the appellants have denounced, with much force, the evidence as insufficient to support it. The original issued to the donee was not produced either to the board of commissioners or the District Court. To account for its non-production, two witnesses were examined, who say that a paper, purporting to be an original, and which had the appearance of authenticity, was in the possession of one of them, as the agent and attorney in fact of the claimant; that this paper was destroyed by fire with the office in which both lived in the fall of 1851. An affidavit of the claimant in another case is in the record, in which he says that the original is lost. Some months before this fire, this paper was recorded in the county registry of deeds, and the recording clerk affords some evidence to the genuineness of the paper. It is shown that it had been exhibited in controversies before courts of justice, and had been examined by adverse claimants and their counsel, and at other times by interested and inquiring parties.

A grant of the same date, for the same quantity of land, in the same locality, and issued by the same officer, was reported to the United States by William Carey Jones, Esq., their agent, as existing in the archives of California in 1850. In his intercourse with the officers of the California Government, the claimant asserted his title to New Helvetia, and his assertion was admitted; and accurate accounts of his location and settlement, and the terms on which they were made, are to be found in historical and descriptive works published under the authority of foreign States, upon the testimony of their agents, who visited California prior to 1845. (Fremont's Rep., 246; 1 Duflot de Moufras Explor. de l'Oregon and des Cal'as, 457.) Besides this consistent testimony, there is produced from the archives a draught of a grant corresponding to that produced from the county records, except in respect to the signatures.

The Governor, Alvarado, testifies that this draught was prepared by him, and from it the original that issued to Sutter was prepared by the secretary, and that the draught was deposited by his directions, and is now there. The fact that his name is not attached to this draught does not impair its authority under the circumstances of this case. (Spencer v. Lapsley, 20 How., 264.)

We agree that the rule of law which requires the best evidence within the power or control of the party to be produced should not be relaxed, and that the court should be satisfied that the better evidence has not been wilfully destroyed nor voluntarily withheld. But the rule on the subject does not exact that the loss or destruction of the document of evidence should be proved beyond all possibility of a mistake. It only demands that a moral certainty should exist that the court has had every opportunity for examining and deciding the cause upon the best evidence within the power or ability of the litigant. In every well-regulated Government, the deeds of its officers, conveying parts of the public domain, are registered or enrolled, to furnish permanent evidence to its grantees of the origin of their title. An exemplification of such a record is admissible, as evidence of the same dignity as of the grant itself. (Patterson v. Wynn, 5 Pet., 233; U.S. v. Davenport, 15 How., 1.) This rule exists in States which have adopted the civil law. In those States, the deed is preserved in the archives, and copies are given as authentic acts-that is, acts which have a certain and accredited author, and merit confidence. The acts thus preserved are public instruments, and all doubts that arise upon the copies that may be delivered are resolved by a reference to the protocol from which the copies are taken, and without which they have no authority. (1 White Recop., 297; Owings v. Hull, 9 Pet., 607.)

When, therefore, a protocol is found in the archives, the non-production of the original given to the party cannot furnish much cause for suspicion or alarm. The map to which the grant refers, and which properly forms a part of it, is not produced from the archives. The testimony of the witnesses is, that there was a map accompanying the original, and was burned with it. An engineer or surveyor, (Vioget,) who prepared maps for the claimant, testifies that, in January, 1841, he made duplicate maps for the claimant of the establishment at New Helvetia, and surveyed eleven leagues at that place; and that, in 1843, he traced a copy from one of these, and that copy is produced and filed with the petition. It is a fair conclusion, from all the evidence, that these maps of Vioget were presented to the Governor, and form the basis of the grant, and make a part of it.

The secretary, Jimeno, who was examined in reference to an application of the appellee for an enlargement of his establishment, by the donation of the sobrante, says that a map accompanied the petition, and exhibited the land desired; that he made a favorable report upon the petition. The petition for the surplus, or sobrante, implies there was an existing and operative grant, which the authorities recognised and respected. With this map, we have no difficulty in locating the grant so as to include New Helvetia. Without it, the question would be, whether the general description of New Helvetia should overrule the particular description by metes and bounds, contained in the third condition; for it is ascertained that the exact position of the line of latitude which determines the southern boundary lies twenty miles north of the principal establishment. But the map shows that the line of the southern boundary is south of New Helvetia, and is so related to natural objects represented on it as to be easily determined. Vioget accounts for the error in the designation of the line by the imperfection of the instruments, and proves that a starting corner was fixed, and the line traced on the gronnd. This is better evidence of the true location of the southern line, and conforms to the probabilities of the case. Upon the whole evidence, we find that the grant and map filed with the petition in 1852, before the board of commissioners, have been proved. The authenticity of the grant being ascertained, the question of its validity, as a colonization grant, under the laws of 1824 and of 1828, remains to be considered. To these laws, the authorities of California habitually refer as the source of their authority.

The law of 1828 authorizes the political chief to grant lands to an empresario who may wish to colonize; but that the grant shall not be definitely valid without the previous approbation of the supreme Government, to which the espediente, with such report as the Departmental Assembly may think fit to make, shall be communicated. Before conceding lands, the chief was directed to make inquires that the candidate was embraced by the laws, and that the land was suitable for colonization, and was not subject to any existing right.

The grant to the claimant recites that the Governor had obtained the information necessary, and that the requirements of the law had been fulfilled.

No condition was imposed upon the claimant in respect to the distribution of the lands among the families to be introduced. The object of the grant, on the part of the authorities, seems to have been to secure the services of an efficient and competent officer, in a distant and exposed portion of the province, who would undertake to give repose and security to the settlements in that region; and this distribution of lands was confided to him as a trust, and a compensation for the performance of that duty.

The quantity of land was not greater than the colonization laws authorized an individual to hold, and the only care of the authorities was, that the consideration of the grant should be secured from the donee. The evidence is satisfactory that the expectations of the donors were entirely fulfilled. During the early administration of Alvarado and Micheltorena, the grantee seems to have had the favor of the political authorities, and in 1844 there was no objection opposed by them to the enlargement of his enterprise. He was referred to for information in business of the department, and, in the civil commotions that preceded the overturn of the power of Micheltorena, he was the principal stay of his administration; and when called in question, subsequently, by the enemies of his chief, he said: 'My establishment is situated between the San Joaquin and Sacramento rivers. It is the point which forms the fromtier of the Mosebulos Indians, who are those who attack the ranchos and seize the horses. It is the road of transit from the interior. These reasons, not less than the great distance from my place to the other settlements, suggested to me the propriety of building my fort; and in order to do so, I obtained a license from the Government of the country.'

Subsequently to February, 1845, he seems not to have been molested by the Government of Mexico, but remained the only representative of its power and authority in the valley of the Sacramento. There was no inconvenience felt by the failure to complete the grant, and there was no denunciation, by any one, of the land, for a breach of any condition. When the treaty of Guadalupe Hidalgo was ratified, he was a citizen of Mexico, in possession of the property comprehended in the grant, and is entitled to all the guarantees provided by that treaty for the Mexican population of California. He has submitted his claims to the tribunals appointed by the United States within the term prescribed, and is ready to abide their action in reference to them. We know of no law of the United States which authorizes us to pronounce a sentence of forfeiture for any act or omission since the date of the treaty. Our opinion is, that this grant is a valid claim under that treaty.

The grant purporting to be issued by Micheltorena at Santa Barbara, the 5th February, 1845, and submitted to the board of commissioners in March, 1853, remains to be considered.

The original of this grant was not produced. It is not in the list of grants reported to the Government by Mr. Jones, nor is it found in the archives of California. It has not been placed upon the county records of Sacramento county, nor is there any evidence that it was ever produced in any of the controversies for the land included in it. There is no petition, or reference to the secretary, or compliance with any other formality prescribed by the law of 1828, preliminary to the issue of grants for lands. The record shows, that in 1843, or 1844, the claimant applied for the sobrante or surplus, and that his petition was referred to the secretary for further information, and that he reported there was no objection; that the Governor reserved the subject for consideration until he could visit the Sacramento valley, and that the papers were returned to the claimant.

In February, 1845, there existed a revolt against the Government of Micheltorena, in which the principal inhabitants of California participated. Micheltorena abandoned his capital, and, on his way to Los Angeles, reached Santa Barbara, where the claimant joined him with a body of 'foreign volunteers.' The deposition of Castanada, the aid-de-camp of Micheltorena, has been taken. He says that the claimant presented a petition for a grant to himself and his son; that he (Castanada) drew the deed, and that it was executed by the Governor, in his presence, at Santa Barbara; and that he believes that the paper presented is a true copy. One of the volunteers testifies that the Governor made a speech to the volunteers, in which he said he had granted to Sutter all the lands he had claimed, (or asked for,) and that he had issued grants to all the applicants for lands who had been licensed to settle in the valley of the Sacramento. He says, about two months after he saw a grant in the hands of Sutter, which Sutter informed him had been delivered at that time, and that he thinks the present copy corresponds with the one he then saw.

The two witnesses who proved the loss of the other grant testify that the original of this was destroyed at the same time with the other, and that the paper produced is a copy of the one destroyed.

This evidence is not entirely satisfactory to establish the execution of the grant. The two witnesses first named speak of a paper they had not seen since 1845, and one of them was not familiar with the language in which it is written. One of the other witnesses is largely interested as a grantee of the claimant in the issue of this suit, and the fourth immigrated to California after the treaty, was not conversant with the Spanish language, and derived much of his impressions from the parties who claimed title under Sutter, and of whom he was the attorney.

But we are not disposed to place the decision of the cause upon the deficiency of the evidence of the execution of the paper, and therefore do not pronounce absolutely upon it.

The decisions of the court show that they have been disposed to interpret liberally the measures of the Mexican authorities in California, and to view with indulgence the acts and modes of dealing of the inhabitants, having reference to the laws of distribution and settlement of the public domain. The circumstances in which the Governor was placed required that his power and discretion should not be circumscribed by narrow limits. In a remote province of the Mexican Republic, he was almost the only representative of the general and common will of the nation, and he was habitually in collision, sometimes in violent collision, with provincial feelings, sentiments, and interests. At the time this grant purports to have been made, he was engaged in a civil war, which, after having been smothered for a time, had burst forth with increased violence. Within two or three weeks from the date of the grant, the war was terminated by the agreement of Micheltorena to abandon the country. He never returned to the capital, except to prepare for his departure. The laws of Mexico for the colonization and settlement of the public domian embody a comprehensive and liberal policy, and the arrangements for their execution denote care and circumspection on the part of their authors in securing their faithful administration. They authorize the Governor (politicos gefes) to grant lands to those who may ask for them, for the purpose of cultivating and inhabiting them. They require that every person soliciting for lands shall address the Governor a petition, expressing his name, country, and profession, the number, description, religion, and other circumstances of his condition, and describing as distinctly as possible, by means of a map, the land asked for; that the Governor shall obtain the necessary information whether the petition embraces the requisite conditions required by the law as to the person and land, and, if necessary, that the municipal authorities might be consulted whether there be an objection to making the grant or not; that the grants made to private families or persons shall not be held to be definitely valid without the previous consent of the Departmental Assembly, and, in case of their dissent, that it should be referred to the supreme Government. The definitive grant being made, a document signed by the Governor shall be given, wherein it must be stated that said grant is made in conformity with the provisions of the laws in virtue whereof possession shall be given, and that the necessary record shall be kept, in a book destined for the purpose, of all the petitions presented and grants made, with the maps of the lands granted, and the circumstantial report shall be forwarded quarterly to the supreme Government.

The office of political chief of a State or Province has long existed in Spain, (whence it was derived by Mexico,) and his duties are defined with precision in the works on the administrative law of that monarchy. The authoritative acts of this officer assume the form of ordinances and regulations, or of decrees and judgments. The former relate to the concerns of the Department, and may issue spontaneously, while the latter always proceed upon a petition. There are scarcely any formulas prescribed for these acts. But there exist certain rules, consecrated by usage, sanctioned by reason, and required by justice, some of which have received the assent of the legislator, and others are official regulations.

The administration has need of information, and hence the political chief may consult with subordinate authorities and corporations in all business in which exact information is required of local facts and circumstances, and he is bound to hear the suggestions of the deputations and provincial assemblies when the law requires it-a rigorous condition, a compliance with which should appear in the recitals of the disposing part, and the inserting of the customary formulas, that the act may not be contested for excess of power. Finally, all the acts of the political chief shall be authenticated by his signature, and it concerns the good order of the administration that they should be inserted in a special record. (Colmeiro derecho Admin., secs. 285, 286.)

Assuming the statements of the witnesses, Castanada and Ford, to be accurate, it can hardly be contended that the issue of this grant was an act of civil administration, or had any reference to the law of colonization and settlement. At a distance from the capital, in the prosecution of an intestine war against a band of insurgents, surrounded by a body of foreign volunteers, in whose fidelity his safety depends, the Governor promises to dispose of the public domain as a compensation for service, or as an inducement to loyalty. In a few days this Governor is defeated, vacates his post, and his troops are disbanded.

The hostile Government that succeeded to that of Micheltorena have not recognised the legality of the deeds of the deposed chief, nor did the claimant (so far as we are informed) attempt to obtain any sanction to his claim, or to introduce the evidence in his possession among the archives of the Department, without which a perfect title could never have been obtained. On the contrary, the record shows that he was a captive in the hands of the enemies of Micheltorena, and was released, after humble apologies, for his adherence to the unfortunate chief, and protestations that in future he would be loyal to the existing authorities. He kept his grant concealed apparently as a dangerous secret, until an entire change in the political constitution of the country took place. In our opinion, this was not a valid claim at the date of the treaty of Guadalupe Hidalgo, and is not entitled to recognition from the United States.

It appears from the deeds in the record that the claimant has conveyed nearly all of his estate in the land included in the two grants, and objection is taken to the form of the suit. It is contended that the claim should have been preferred by the grantees of the claimant. We admit the force of the argument in favor of the objection, and that the dormant interests of persons not parties on the record may frequently distrub the course of justice.

But the contrary practice was sanctioned in Percheman's case, (7 Pet.,) and has been followed since. It is competent to persons interested in the claim to employ the name of the original claimant. (United States v. Percheman, 7 Peters, 51; United States v. Patterson, 15 How., 10.)

The decree of the District Court is affirmed, in so far as it relates to the grant bearing date the 18th of June, 1841, and executed by Juan B. Alvarado; and is reversed in so far as it relates to the grant purporting to have been executed by Micheltorena, at Santa Barbara, the 5th of February, 1845; and the cause is remitted to the District Court for further proceedings in respect to the location of the grant of Alvarado, within the limits set forth in the grant and the accompanying map on file in the case.

Mr. Justice DANIEL and Mr. Justice CLIFFORD dissented.

I respectfully dissent from so much of the opinion of the court as affirms that a proper legal foundation was laid at the trial for the introduction of parol evidence to establish the existence and authenticity of the Alvarado grant. When a concession of land is made by the Government to an individual under Mexican laws, as in this case, a duplicate copy of the title-paper is required in all cases to be filed in the proper tribunal for registry; and unless that is done, it is difficult to see how a legal registry can be made. That duplicate copy is in the nature of an original paper, and, after registry, becomes the foundation of all the subsequent proceedings of the Government to perfect the grant in the donee. It was the duty of the purchaser in this case, in the absence of any original grant, to produce that duplicate copy, if in existence; and if not, then to account for its loss. According to the draught presented as a copy, proved by parol evidence, the grant was made subject to the approval of the supreme Government and of the Departmental Assembly. It has never been decided that a grant issued by a subordinate officer, subject to the approval of the supreme Government, was valid without such approval; and, in my judgment, the doctrine cannot be maintained without subverting the essential principles on which every well-regulated Government rests. That grant was never approved, either by the supreme Government or the Departmental Assembly. Under the circumstances disclosed in the record, I cannot concur that it is the duty of the United States, under the treaty, to disturb the possession of the settlers, while it appears that there is better evidence to establish the right of the donee, if any he had, to the land described in his concession. On the proofs exhibited, I am of the opinion that the decree of the District Court should be wholly reversed.

I fully concur in the above opinion.


text: Talk:United States v. Sutter/Opinion of the Court

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Page:Copyright, Its History And Its Law (1912).djvu/179

 whenever within the period of such ad interim pro tection an authorized edition of such book shall be published within the United States, in accordance with the manufacturing provisions specified in section fifteen of this Act, and whenever the provisions of this Act as to deposit of copies, registration, filing of affidavit, and the printing of the copyright notice shall have been duly complied with, the copyright shall be extended to endure in such book for the full term elsewhere provided in this Act."

The ad interim provision requires the same formalities and fee as in the case of domestic works, except that only one copy of the foreign work in English need be deposited, and that this deposit copy need not contain the statutory notice of American copyright. The claimant is given thirty days after publication abroad in which to request reservation and a second thirty days after deposit of the foreign copy within which to publish or cause to be published an edition manufactured in America and thus to complete his copyright. This gives a period of ad interim protection, ranging from thirty days to sixty days, within which to obtain permanent copyright, the exact period depending upon the number of days elapsing after publication before deposit of the foreign copy in the Copyright Office. Thus a copy deposited on the day of publication will have thirty days in all within which to secure permanent copyright by the publication of the American-made edition, while a copy deposited on the thirtieth day after publication will have sixty days in alf ; but the failure to deposit the foreign copy within thirty days after publication, or the failure to publish an Americanmade edition within thirty days after such deposit, will forfeit the right to obtain copyright protection and throw the foreign work into the public domain,


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Cushing v. Owners of the Ship John Fraser

THIS was an appeal from the Circuit Court of the United States for the district of South Carolina, sitting in admiralty.

It was a case of collision, in the port of Charleston, under the circumstances particularly set forth in the opinion of the court.

The James Gray was at anchor, and the John Fraser was being towed into the harbor by the steamer General Clinch, when a collision ensued between the John Fraser and the James Gray. The owners of the latter libelled both the two other vessels. The District Court dismissed the libel against the steamer, but decreed for the libellants against the John Fraser, $3,902.67, being the amount paid for repairs to the James Gray, and also a sum for demurrage.

The case was carried up to the Circuit Court, where additional evidence was taken, and the judge reversed so much of the decree of the District Court as condemned the ship John Fraser in damages, and affirmed the judgment in favor of the steamer. The libel was therefore dismissed, with costs. An appeal brought the case up to this court.

It was argued on behalf of the appellants by Mr. Cushing and Mr. Gillet, on behalf of the owners of the John Fraser by Mr. Brown, and on behalf of the steamer General Clinch by Mr. Mitchell.

The counsel for the libellants contended that the James Gray was not in fault, and of course had a right to recover damages from somebody; that the steamer and the Fraser were both to blame, for many reasons; and that if the court should think that the James Gray committed any fault, then the other two vessels should be responsible for half of the damage.

The counsel for the steamer contended that the James Gray was to blame; but if some one had to pay the damages, it should be the John Fraser.

The counsel for the latter vessel contended also that the James Gray was in fault; but if any one had to pay the damages, it should be the steamer.

To follow the arguments through all these various ramifications, would require more space than can be allotted to the case.

Mr. Chief Justice TANEY delivered the opinion of the court.


text: Talk:Cushing v. Owners of the Ship John Fraser


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Cushing v. Owners of the Ship John Fraser/Opinion of the Court

This is a case of collision in the port of Charleston, in South Carolina.

The brig James Gray took on board a valuable cargo at Charleston, destined for Antwerp, and in the prosecution of her voyage hauled off from the wharf into the stream and anchored, on the 1st of February, 1856. The place where she anchored was in the harbor, and was the place where vessels bound out usually anchored for a short period, to make their final preparations for sailing on their voyage. It was, however, a thoroughfare for vessels bound in, and through which they were almost continually passing. She remained there until the collision took place, which happened on the night of the 5th of the month above mentioned, about seven o'clock, shortly after daylight had disappeared. On that evening the John Fraser came in from sea, in tow of the General Clinch. The latter was a steamboat, occasionally employed in towing vessels in and out of the harbor, and was properly fitted and manned for that purpose. There was ample room on both sides of the James Gray for the tug and the tow to have passed with safety, if the James Gray had been seen in time. But she was not seen, either from the General Clinch or the John Fraser, until the steamboat was abreast of her, and at the distance of not more than forty or fifty fathoms. She was then for the first time seen by those on board the General Clinch, which had just before, and almost at the same moment, cast off the hawser by which she was towing the John Fraser. The towing line was about fifty fathoms in length, according to the testimony of the pilot of the General Clinch, and was attached to the larboard bow of the tow, and it was cast off by the General Clinch without any previous notice of the intention to do so at that particular moment; and it appears to have been altogether unexpected on board the John Fraser. And as soon as she was cast off, and not before, those on board of the John Fraser, for the first time, discovered the James Gray directly ahead, and upon which she was running. She endeavored to avoid her by putting her helm hard to starboard, in order to pass on the same side and in the wake of the tug; her speed, however, from the tide and the impulse she had received from the steamboat, was then about six knots an hour; and she reached the brig before her course could be sufficiently changed to avoid a collision. The rigging of the John Fraser became entangled in the bowsprit of the brig which it carried away, and caused other damage to the vessel to a serious amount.

So far the facts are undisputed; we come now to the points in controversy.

The libel is filed in rem by the owners of the James Gray against the ships above mentioned, alleging that she was free from fault, and that the damage was occasioned altogether by their negligence and mismanagement, and claiming the right to charge them with the whole amount of the loss sustained.

The owners of the John Fraser and the owners of the General Clinch answer separately, each of them charging the misconduct of the James Gray as the cause of the disaster, but each of them also imputing some degree of blame to each other.

They charge against the James Gray that she was lying in a thoroughfare in the harbor, in violation of the local port regulations, and without the light that these regulations required. And they produce two ordinances of the corporate authorities of the city of Charleston, one of which provides that no vessel shall lie in this thoroughfare for more than twenty-four hours, and inflicts certain penalties for every disobedience of this ordinance; and the other requires all vessels anchored in the harbor to keep a light burning on board from dark until daylight, suspended conspicuously midships, twenty feet high from the deck.

The power of the city authorities to pass and enforce these two ordinances is disputed by the libellants. But regulations of this kind are necessary and indispensable in every commercial port, for the convenience and safety of commerce. And the local authorities have a right to prescribe at what wharf a vessel may lie, and how long she may remain there, where she may unload or take on board particular cargoes, where she may anchor in the harbor, and for what time, and what description of light she shall display at night to warn the passing vessels of her position, and that she is at anchor and not under sail. They are like to the local usages of navigation in different ports, and every vessel, from whatever part of the world she may come, is bound to take notice of them and conform to them. And there is nothing in the regulations referred to in the port of Charleston which is in conflict with any law of Congress regulating commerce, or with the general admiralty jurisdiction conferred on the courts of the United States.

Yet, upon the evidence before the court, we do not think the James Gray ought to be regarded as in fault, by remaining at anchor in the harbor beyond the time limited in the city ordinance. She was seen there by the harbor-master day after day, without being ordered to depart; nor did he seek to inflict the penalty. The object of this regulation was obviously to prevent this thoroughfare from being crowded by vessels at anchor, which would make it inconvenient or hazardous to vessels coming into the port. And from the conduct and testimony of the harbor-master, it may be fairly inferred that this regulation was not strictly enforced when the thoroughfare was not over-crowded, and that single vessels were sometimes permitted to remain beyond the time fixed by the ordinance, without molestation from the city authorities. And this lax execution of the regulation would soon become a usage in the port, and will account for the indifference with which the harbor-master saw her lying there three days beyond the limited time, without even remonstrance or complaint. He appears to have acquiesced. And if this was the interpretation of the ordinance by the local authorities, it ought not to be more rigidly interpreted and enforced by this court.

But the omission of the light prescribed by the regulation stands on different grounds. There was certainly no acquiescence of the local authorities in that respect; and, upon the testimony, it is a matter of dispute whether she had any light or not. That question will be considered hereafter. But it is admitted on all hands that she had not a light suspended conspicuously midships, twenty feet above the deck, as the regulation requires; and the light which she alleges she used was not the ordinary globe lamp used by vessels at anchor, but a lantern of triangular form, with one side dark, and the light shining only through the other two, and which, consequently, could not be seen by those who approached on the dark side. The ordinance obviously contemplated the usual signal light of a vessel at anchor, which is bright on every side, and can be seen by those who are approaching from any direction. And as the regulations of the port required a light of this kind, suspended in the manner hereinbefore mentioned, the James Gray could not be justified in disregarding this regulation, and substituting a light of a different description, and placed in a different part of the vessel. Those who were coming into port had a right to presume that a vessel anchored in this thoroughfare would have the light prescribed by the port regulations. They would look for no other, nor expect to find a vessel in their way without one, and might be misled as to the exact position of the vessel, if a light of a different character was shown or hung up in a different place. And as the light of the brig (if she had one) differed in character and place from the one which the regulations and usages of the port required, and which incoming vessels would look for, she committed a fault which justly subjects her to damages for the collision. She had not taken those means to avoid it which the regulations of the port in which she was lying required and prescribed.

But, apart from the regulations of the local authorities, we think the James Gray was in fault upon the established principles of maritime law. She was at anchor at a place where vessels were continually passing. It was her duty, therefore, to show at night the usual signal light of a vessel at anchor-that is, a globe lamp, or one without any dark side to it, which could be seen from any direction, and hung high enough in the rigging to be seen at a distance.

The witnesses who were on board of the General Clinch and the John Fraser say she had no light of any kind immediately before and at the time of the collision; and in this they are supported by the testimony of other witnesses who were observing her about the same time. But those who were on board of the James Gray testify to the contrary, and their testimony is confirmed by others; and we think that, upon the whole evidence, the just conclusion is that she had a light, in a lantern of triangular form, with one dark side, hanging on the fore swiftsure, twenty feet and some inches above the deck. The fore swiftsure is, we understand, the foremost rope of the foremast shrouds.

Now, a light of this description is not ordinarily used as a signal light for a vessel at anchor; but is used at sea, fastened at the bowsprit, with the opaque side to the ship, so as to throw a strong light ahead. And it is obvious that such a lantern, fastened to a single rope at the top only, and more than twenty feet from the deck, would be liable to waver, from the motion of the vessel as she was riding at anchor, and to turn its dark side sometimes in one direction and sometimes in another; and if such a light was used as a signal light, it was more especially the duty of those in charge of the brig to see that the lamp was securely fastened, so as to present its bright sides in the direction in which vessels were likely to approach.

But this is not proved to have been done. It is true that one of the witnesses for the libellants (Wycoffe) says it was securely fastened at the top and the bottom, with the dark side to the stern. This may have been the way in which it was usually fastened, but none of the witnesses examined by the libellants know how it was fastened that night. Wycoffe does not appear to have even been on deck when it was put up. It was put up by a boy; and when the light appeared dim after the collision, Wycoffe says he started to take it down; but the boy was too quick for him, and took it down and trimmed it.

The second mate, who gave the order to the boy to put it up, went below to his tea immediately afterwards, without waiting to see that his order was properly executed; and the first mate went down with him; and no one but this boy appears to have known how it was fastened to the rope that night. He was not examined as a witness, nor is his name mentioned. They speak of him as 'the boy,' and we think it was great want of care on the part of the officer in charge of the deck to confide this important duty to the heedlessness of a boy. His age is not stated, nor his previous pursuits, nor how long he had been on board, nor his knowledge or fitness for the duty intrusted to him. The place where the brig was anchored, and the character of the light they were about to display, made it the more imperatively the duty of the officers to see that it was securely and properly fastened, so as to present the bright sides to the incoming vessels, as she was in most danger of being run into by them. But without the testimony of the boy who put it up and took it down, or any proof of his age and character, from which it might be inferred that the duty was well and faithfully performed, the court cannot say that a sufficient light was displayed to warn vessels coming into the harbor that she was at anchor in this thoroughfare.

Indeed, the just inference from the testimony would be otherwise; for if the lantern was carelessly hung, and liable to move to some extent from one to the other, so as at one moment to present its bright side, and a moment after its dark side in the same direction, it would account for the difference in the testimony of different witnesses, who looked at her from the same point of view, some testifying that she had no light, and others that she had a very bright one.

Independently, therefore, of the local regulations, the James Gray, upon the general principles of maritime law and usages, cannot be acquitted of negligence, and must share in the loss.

But the conduct of those on board of the General Glinch was equally culpable. For if, as they contend, the brig showed no light, or if the dark side of the lantern was turned towards her when she was approaching, yet it is satisfactorily proved that the night was light enough to have enabled her to see the brig at a distance abundantly sufficient to pass with her tow without danger to either, and that she must or would have been seen with a proper look-out.

The General Clinch was not under the control of the captain of the John Fraser, but under the command and direction of her own pilot, who was substituted for her regular captain, who was not on board. She could select her own course and her own rate of speed, and was bound to keep a vigilant and competent look-out in the thoroughfare in which vessels so frequently anchored. But there is no proof to show that this was done. The three hands who were at the stern of the steamboat, awaiting the order to cast off the hawser, were certainly not look-outs. The pilot who was in command had his attention drawn to other matters, and was preparing to give the order to cast loose the hawser, and in communicating with the ship he had in tow. It is said, indeed, that there were two of the crew in the forward part of the vessel, whose duty it was to keep a look-out; but, being colored persons, they could not, by the laws of South Carolina, be examined as witnesses. But the law requires of a colliding vessel, that she shall prove not only that she had a competent look-out stationed at the proper place, but also that the look-out was vigilantly performing his duty. And if he placed there persons who cannot be witnesses, it is his own fault; it was his own voluntary act, and can therefore be no sufficient reason for the absence of that proof which the law requires him to produce.

It was especially the duty of the officer in command of the steamboat, in a crowed harbor like that, when his tow was following him at the rate of six or seven miles an hour, and her course necessarily directed by the steam-tug, to have scanned carefully the surrounding objects before he cast loose the tow line, and to see that there was nothing in the way of the tow which she could not avoid by means of her own rudder, without the aid of the steamboat, and also to have given reasonable notice of his intention, in order that she might prepare to take care of herself. But this was not done. He suddenly let go the towing line, without notice or warning to the John Fraser. And the moment after he had done so, and not before, he finds his own vessel almost aboard of a vessel at anchor, and the head of the John Fraser, under the direction and impulse his ship had given her, directed upon the anchored vessel, and too near to avoid a collision when she had lost the aid of the General Clinch.

This state of things could not have happened without great want of care on the part of the steam-tug. Indeed, this negligence is apparent from the testimony of the pilot himself, who was acting as captain. He says his station was on the wheel-house; and that after he let go the John Fraser, he had just time to walk from the bow to the aft part of the steamer, when he saw the Gray. She was not, therefore, first seen from the wheel-house or the bow, but from the stern of his vessel, when he was nearer to her than he was to the ship he was towing. The stern of the vessel is not the first place from which the James Gray would have been seen, if the wheel-house was a proper place, and he had performed there the duty of a lookout. And as regards the two hands which he states were forward as look-outs, they appear never to have seen the brig until after she was discovered by the pilot from the stern, when in the act of passing her bow, for they gave no notice of a vessel ahead, and do not appear to have seen her before her proximity was announced by the pilot. If stationed forward as look-outs, it is very clear that they were not performing that duty, and the collision was the natural consequence of their negligence; for the James Gray was plainly seen from the John Fraser the instant the steam-tug dropped the tow line and turned out of her way; and as the tow line was fifty fathoms long, the steamboat could unquestionably also have seen her as she approached her, at least at that distance ahead, as well as from the stern; and if she had been seen even at that distance, and the General Clinch had held on to the hawser, she could have carried the John Fraser safely past, and without danger.

And upon such proofs of negligence and of want of proper caution, the court is of opinion that the General Clinch is justly answerable, as well as the James Gray, for the consequences of this disaster.

So far as the ship John Fraser is concerned, we see nothing in the evidence from which any fault or mismanagement can justly be imputed to her. According to the usage of trade at that port, she engaged a steamboat, well acquainted with the harbor and its usages, to bring her in. When fastened to the hawser, and in tow, she was controlled entirely by the steam-tug, both as to her course and speed. The steamboat was not subject to the orders of the commander of the John Fraser, but was altogether under the control and direction of her own commander for the time. A look-out on board of the John Fraser would be of little or no value, for the view ahead was obstructed by the steam-tug, and she could do nothing more than watch the motions of the steamboat, and use her own rudder, so as to keep her as nearly as might be in the wake of the tug to which she was attached. She had a right to suppose that a proper look-out would be kept by the steamboat, and that she would not be led into dangers from which no effort on her part would enable her to escape. And she was brought into this dangerous proximity to the James Gray, and then cast loose, under circumstances which rendered a collision inevitable; and she was driven against the vessel at anchor altogether by the direction and impulse which she received from the controlling power of the steamboat, and not by any act of negligence or mismanagement on her part.

It is indeed said by some of the witnesses, that if she had put her helm to the larboard, instead of the starboard, as soon as she was cast off, she might have passed in safety on the other side of the James Gray. But the weight of the proof is clearly to the contrary; and we are convinced that she adopted the only chance for safety, by putting her helm to starboard, and endeavoring to pass on the same side that the steam-tug had passed.

It is true, that the John Fraser was the res or thing which struck the James Gray, and did the damage. But the mere fact that one vessel strikes and damages another, does not of itself make her liable for the injury; the collision must in some degree be occasioned by her fault. A ship properly secured may, by the violence of a storm, be driven from her moorings and forced against another vessel, in spite of her efforts to avoid it. Yet she certainly would not be liable for damages which it was not in her power to prevent. So also ships at sea, from storm or darkness of the weather, may come in collision with one another, without fault on either side; and in that case, each must bear its own loss, although one is much more injured than the other. This was decided by this court in the case of Stainback et al. v. Rae et al., (14 How., 532;) and the decision placed upon the ground that neither of them had committed a fault, and could not therefore justly be charged with any portion of the injury which the other had sustained. And as this collision was forced upon the John Fraser by the controlling power and mismanagement of the steam-tug, and not by any fault or negligence on her part, she ought not to be answerable for the consequences.

The result of this opinion is, that the loss must be equally divided between the James Gray and the General Clinch, according to the rule laid down by this court in the case of the Schooner Catharine et al. v. Dickinson et al., (17 How., 170.)

The decree of the Circuit Court is therefore reversed; and the case remanded, with directions to adjust the loss upon the principles stated in this opinion.

We do not assent to so much of this opinion as makes the 'James Gray' liable for negligence, merely for want of exact conformity to port regulations.

S. NELSON.

R. C. GRIER.

NATHAN CLIFFORD.


text: Talk:Cushing v. Owners of the Ship John Fraser/Opinion of the Court


text:
Insurance Company of the Valley of Virginia v. Mordecai (62 U.S. 195)

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

It was an action of debt, brought by Mordecai, (a citizen of South Carolina,) upon a judgment which he had obtained against the insurance company, in the Circuit Court of the United States for the district of South Carolina. A judgment was given also for Mordecai in the Circuit Court of Virginia, from which the insurance company sued out a writ of error in October, 1858, which was made returnable to this court on the 'second Monday in January next,' (being the second Monday in January, 1859.)

Mr. Phillips moved to dismiss the writ of error, on the ground that the writ was not made returnable according to law, and in support of the motion gave the following reasons: The English rules with regard to the return day of a writ of error are—

In the King's Bench it is returnable ubicumque, &c., on the first or last general return of the term.

In the Exchequer Chamber it is returnable before the justices of the Common Bench, &c., on a particular return day.

In the House of Lords, when the Parliament is sitting, the writ is made returnable before the King in his present Parliament, immediate. After a prorogation, the writ is returnable at the next session; or after a dissolution, at the next Parliament, specifying the day when it is to be holden.

By the act of 24th September, 1789, the court was directed to hold two sessions, the one commencing the first Monday in February, and the other, first Monday in August. The sessions of the court were subsequently changed by statute to be the second Monday in January, and then to the second Monday in December.

While the statute gives the commencement of a term, it does not regulate its duration. The court may sit several months or one month. If, therefore, a writ of error is not made returnable to the first day of the session, it may so happen that the record would be sent up on a day when the court is not in session.

It is true that the acts of Congress do not determine the day of return; this was left to be determined by the court, under the power given to regulate its process.

Under the act of the 3d May, 1792, it was made the duty of the clerk of this court, with the approval of two of the judges, to prepare the form of a writ of error. This was done, and the writ then made out undoubtedly made it returnable to the first Monday of the court. The clerk informs me that at each succeeding change of the terms, new blanks have been prepared, in which the return day was stated to be the first of the term. Not only is the act silent as to the day of the return, but it is equally so as to the term. Yet this court has in two cases dismissed a writ of error when a term had intervened. (Hamilton v. Moore, 3 Dal., 371; Blair v. Miller, 4 Dal., 21.)

While no rule of the court specifically declares that the writ shall be made returnable to the first day of the term, the 43d rule, adopted in 1835, declares that, when the judgment or decree is rendered thirty days before the term, the cause shall be docketed and the record filed within the first six days of the term. This is wholly inconsistent with the idea that a writ of error on such a judgment could be made returnable at a subsequent period.

AMENDMENT.-At common law, writs of error were not amendable. (1 Arch. Drac., 214.) This was afterwards regulated by stat. of 1 Geo. I.

The 32d section of the judiciary act, though writs of error are not named, may be understood to confer a similar authority.

It may be, therefore, that leave to amend will be granted when there is anything to amend by. This was the case in 4 Dal., 12.

In this case there is nothing to amend by.

The motion was opposed by Mr. Robinson, upon the following grounds:

1. Under section 22 of the act of Congress establishing the judicial courts of the United States, a writ of error issued by the clerk of the Supreme Court is to be returnable at a certain day and place therein mentioned, but that day need not be the first day of the next term.

The form of a writ of error is given in Curtis's Digest, p. 599. It is made returnable to 'the _____ Monday of _____ next.' It may be that, in most cases, it is now made returnable to the first Monday in December, and that formerly, when the term commenced the second Monday in January, it was in most cases made returnable to that day. This, however, is not because of any necessity to make it returnable to the first day of the term, but because that, in most cases, is a convenient day.

It would be of no avail to make it so returnable when there is not, between the day on which the writ of error issues and the first day of the next term, time to give the adverse party the twenty or thirty days notice required by the act of Congress.

Nor will it do to say that, during the twenty or thirty days next preceding the commencement of a term, no writ of error is to issue; for that would make it impossible ever to obtain under section 23 a supersedeas to a judgment rendered within those twenty or thirty days.

Judge Curtis observes that the citation 'may be made returnable in term, and on such a day of the term as will enable the plaintiff in error to have it served on the adverse party thirty days before its return day.' This is entirely correct. And there is but a slight inaccuracy in the language which follows, to wit: that 'if this can be done thirty days before the first day of the next term, it should be made returnable on that day.' No doubt that, in such case, it may be made so returnable. But, in the nature of things, it is, at the time of issuing the writ, impossible to know whether the writ can be served thirty days before the first day of the next term. It is therefore proper that there should be room for some exercise of discretion on the subject, and that the writ should be made returnable to some day of the next term sufficiently distant to make it probable that there can, before that day, be the twenty or thirty days notice.

In this very case it was, at the time the writ of error issued, exceedingly doubtful whether, in the very short time that remained, it would be practicable to serve the writ of error under section 23, by lodging a copy thereof in the clerk's office, where the record remains, within ten days, Sundays exclusive, after rendering the judgment. And if the twenty days notice could not be given in this way, it was, at the time the writ issued, far from being certain that there would, before the first day of the next term, be sufficient time to give that notice in any other way. It was therefore proper to make the writ returnable to some convenient day beyond the first day of the next term; and the second Monday in January was such convenient day.

2. Under the act of Congress of May 3, 1792, sec. 9, it was the duty of the clerk of the Supreme Court to transmit to the clerks of the inferior courts the form of a writ of error approved by two of the judges of the Supreme Court, and it was lawful for the clerks of the inferior courts to issue writs of error agreeably to such forms as nearly as the case may admit. (Brightly Dig., p. 137, sec. 4; p. 260, sec. 6; p. 896, secs. 5, 11.)

It may reasonably be presumed that, in discharge of the duty prescribed by this act, the form of a writ of error was approved by two of the judges of the Supreme Court, and transmitted to the clerks of the inferior courts, and that the writ of error in this case was issued agreeably to such form. If so, the writ of error must be lawful unless there be something in the act which in terms requires the writ to be returnable to the first day of the term. But this is carefully avoided by the act, which directs merely that the writ of error shall be 'returnable to the Supreme Court.'

3. If there be any irregularity in the writ, it is merely clerical, like the irregularity in Course, &c., v. Stead and wife, 4 Dall., 22, and Blackwell v. Patten, &c., 7 Cranch, 277. As the irregularity of the teste was insufficient to quash or dismiss the writ it those cases, so the irregularity in the return day is equally insufficient to quash or dismiss the writ here. As in Course, & c., v. Stead and wife, the writ was amendable in respect to the teste, so here it is amendable in respect to the return day.

In Mossman v. Higginson, 4 Dall., 12, where the return day of the writ of error was left blank, it was deemed a merely clerical error, and, as such, amended. The writ is regularly tested here as it was there, and, it appears, when the writ was filed below and here.

Wood v. Lide, 4 Cranch, 180, modifies or explains Hamilton v. Moore, 3 Dall., 371, and Blair v. Miller, 4 id., 21. In those cases, the objection was, not that the writ was defective in form, but that, after the return day, a whole term passed before the record and writ of error were filed in the Supreme Court.

Mr. Chief Justice TANEY delivered the opinion of the court. The defendant in error, on the 8th of October, 1858, obtained a judgment against the plaintiffs in error in the District Court of the United States for the western district of Virginia On the 18th of the same month, this writ of error was sued out, and made returnable on the second Monday in January then next ensuing-in other words, it was made returnable on the second Monday in January, in the present term of this court; and the defendant in error was cited to appear here on that day.

A motion has been made to dismiss the case, upon the ground that, in order to bring the judgment of the District Court before this court, the writ of error must be returnable on the first day of the term, and that a writ of error with a different return day is not authorized by law, nor by the rules and practice of this court.

By the act of Congress of May 8, 1792, (1 Stat., 278,) it was made the duty of the clerk of this court to transmit to the clerks of the several Circuit Courts of the United States the form of a writ of error, to be approved by two of the judges of this court; and the clerks of the Circuit Courts were by that act authorized to issue writs of error agreeably to such form, as nearly as the case would admit. And it is by virtue of this act alone that the clerk of a Circuit Court, or of a District Court exercising the jurisdiction of a Circuit Court, is authorized to issue a writ of error to remove a case to this court.

Immediately after its passage, the form of a writ of error was adopted and transmitted to the clerks of the Circuit Courts, pursuant to its provisions; and that form made it returnable on the first day of the term of this court next ensuing the issuing of the writ-that is, one the day appointed by law for the meeting of the court. The form then adopted has never been changed, nor are we aware of any case in which a writ of error with a different return day has been sanctioned by this court.

It is unnecessary, therefore, to inquire what may be the rules of practice in this particular in other courts. The legal return day was fixed under the authority of the act of 1792; and a writ of error issued by the clerk of a Circuit Court, or of a District Court exercising the powers of a Circuit Court, with a different return day, or differing in any other material respect from the form transmitted, is without authority of law, and will not bring up the case to this court.

The rules of the court have been framed in conformity with this return day of the writ; and the rule which permits a defendant in error to docket and dismiss a case if the transcript is not filed by the plaintiff within the time therein limited, necessarily presupposes that the writ is returnable on the first day, and that the plaintiff might then file the transcript.

He may, it is true, return the writ with the transcript at any time during the term, unless the case has been docketed and dismissed, when it cannot afterwards be filed without the special order of the court. But this permission to return the writ, and file the transcript at a subsequent day, is upon the principle that, for certain purposes of convenience or justice, the term is considered as but one period of time-as one day, and that day the first of the term. The writ before us was obviously issued by some oversight of the clerk, who followed the form used when this court met on the second Monday in January, without, it would seem, adverting to the circumstance that the day of meeting had been changed by law, and that the first Monday in December, and not the second Monday in January, was the first day of the term.

Neither can the writ of error be amended. The defendant in error was cited and admonished to appear on the second Monday in January; and if the writ were amended, it could not be maintained with this citation, for the defendant must be cited to appear on the same day that the writ is returnable. The citation is the regular and familiar process from a court of justice, notifying and requiring the defendant to appear and make his defence, if he has any, on the return day of the writ. And the common-law process of a writ of error made returnable on one day, and a summons to the defendant to appear at another, would be without precedent, and would be as objectionable as the entire absence of a citation. And the want of proof that the defendant was cited has always been held to be a fatal defect in the process prescribed and required by the act of 1789, whereby a party is authorized to bring the judgment of an inferior court before this court for revision-a defect which can be cured only by the voluntary appearance of the party entered on the record.

Nor can this mistake be corrected by a citation from this court. The act of Congress requires it to be issued by the judge or justice who allows the writ of error, and it cannot be legally issued by any other judge or court.


text: Talk:Insurance Company of the Valley of Virginia v. Mordecai (62 U.S. 195)


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Insurance Company of the Valley of Virginia v. Mordecai (62 U.S. 195)/Opinion of the Court

The case must therefore be dismissed for want of jurisdiction in this court.


text: Talk:Insurance Company of the Valley of Virginia v. Mordecai (62 U.S. 195)/Opinion of the Court


text: Philadelphia Wilmington and Baltimore Railroad Company v. Quigley


text: Talk:Philadelphia Wilmington and Baltimore Railroad Company v. Quigley