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Philadelphia Wilmington and Baltimore Railroad Company v. Quigley/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 Maryland.

It was an action on the case for libel brought by Quigley against the railroad company, under the circumstances which are fully set forth in the opinion of the court, which also contains the instructions of the Circuit Court to the jury.

The case was argued by Mr. Schley and Mr. Donaldson for the plaintiffs in error, and Mr. Johnson and Mr. Davis for the defendant.

The counsel for the plaintiffs in error made the following points:

1. An action of libel cannot be sustained against the plaintiff in error. The laws, under which it exists as a corporate body, are a part of the record. It is a railroad company, with defined and limited faculties and powers; and it can exercise no incidental powers, except such as are necessary to the full exercise of the faculties and powers expressly given by its charter. Being a mere legal entity, it is incapable of malice; and in the very definition of libel, malice is an essential element. The action should have been instituted against the natural persons, who published the alleged libel.

Rex v. The Great North of England Railway Co., 9 Q. B., 315.

Stevens v. Midland Counties Railway Co., 10 Exchequer, 352.

Commonwealth v. The Proprietors of New Bedford Bridge, 2 Gray, 345.

State v. Great Works Mill and Man. Co., 20 Maine, 41.

McClelland v. Bank of Cumberland, 24 Maine, 566.

Childs v. Bank of Missouri, 17 Missouri, 213.

And, for illustration, the cases of Colman v. The Eastern Counties Railway Co., 4 Railway C., 513, and Salomons v. Lainy, 6 Railway C., 301, are referred to, showing that the corporation is not bound by acts of directors, when such acts are ultra vires.

2. Even if the action of libel could be maintained against the plaintiff in error, in a case of unlawful publication, yet, upon the proof in this case, there was no such publication.

The communication, by the president and directors to the stockholders, of the results of the investigation into the conduct of the company's officers, was a privileged communication; and even if it amounted to a publication, no action will lie, unless upon proof of express malice and the want of probable cause; and the burden of proving malice and want of probable cause was on the plaintiff below.

Van Dyck v. Guthrie, 4 Duer, 268.

Vanderzee v. McGregor, 12 Wend., 545.

Davison v. Duncan, 40 Law and E. Rep., 219.

Shipley v. Todhunter, 7 Carr and Payne, 680; 32 Eng. C. L. Rep., 685.

Somerville v. Hawkins, 10 C. B., 583; 70 Eng. C. L. Rep., 583.

Taylor v. Hawkins, 16 Q. B., 308; 71 Eng. C. L. Rep., 307.

Harris v. Thompson, 13 C. B., 333; 76 Eng. C. L. Rep., 333.

Cockayne v. Hodgkinson, 5 Carr and Payne, 543; 24 Eng. C. L. Rep., 448.

Toogood v. Spyring, 1 Cr. Mees. and Ros., 181.

Padmore v. Lawrence, 11 Ad. and El., 380, 39 Eng. C. L. Rep., 115.

Howard v. Thompson, 21 Wend., 320.

Bradley v. Heath, 12 Pick., 163.

Hopwood v. Thorn, 8 Mann., Grang., and Scott, 315; 65 Eng. C. L. Rep., 291.

White v. Nicholls, 3 How., 266.

Cooke v. Wilde, 30 Law and E. Rep.

3. But there was no evidence of publication, by the defendant, of the matter complained of as libellous. The report of the president and directors to the stockholders of the company, communicating the results of the investigation, was no such publication; and the adoption of their report, and the consequent printing of the testimony, and its authorized distribution amongst the stockholders, was no such publication.

Rex v. Baillie, 2 Esp. N. P., 10, and cited in Howard v. Thompson, 21 Wend.

4. There was no evidence of express malice on the part of the corporation, or on the part of the board of directors, or on the part of the stockholders. It is not a case in which vindictive damages could properly be given.

2 Greenl. Ev., secs. 253, 420.

Day v. Woodworth, 13 How., 371.

5. The first instruction of the court below was erroneous in several particulars. It directed the jury that they might infer malice, from the mere falsehood of any statement in the letter of Mahoney, respecting the plaintiff in his trade and occupation; and that the distribution of the printed book, among any of the stockholders, rendered the defendant liable in the action. The defendant, under this instruction, was not at liberty to claim a verdict, except upon proof of the truth of every statement in said letter; for the distribution of the book, to some extent, amongst the stockholders, was not denied.

6. But the second instruction was even more exceptionable. It was calculated to mislead the jury; and, although, undoubtedly, not so designed, seemingly suggests to them the propriety of giving exemplary damages. The quantum of damages, under this instruction, was to be composed of two items: firstly, such amount as would render reparation to the plaintiff; AND, secondly, such amount as would act as an adequate punishment to the defendant; and in making up this blended amount, the jury were told to give such damages as, in their opinion, were called for and justified in view of all the circumstances of the case. The instruction left the jury at large, irrespective of the special character in which the plaintiff complained. In his declaration, the plaintiff sued, in his character as a mechanic, for an alleged libel upon him, as a mechanic; and he complains of injury to his reputation, not as a man, but as a mechanic; and he claims special, and not general, damages. Now, there was certainly evidence, and strong evidence, to show that the plaintiff had not sustained any actual damage in his reputation, or in his business, as a mechanic; and, if so, the case was one, not for vindictive, but nominal damages. The standard of making reparation to the plaintiff, and of punishing the defendant, is not warranted by the declaration, and not justified by the cause of action.

7. The Circuit Court, upon the proof adduced, had not jurisdiction in this case. The plaintiff and defendant were not citizens of different States.

[The plaintiff sued as a citizen of Delaware. The defendan was described as 'a body corporate in the State of Maryland incorporated by a law of the General Assembly of Maryland. But the proof showed that the defendant was also a body corporate in Delaware, incorporated by an act of the Legislature of Delaware. If the defendant was a citizen of Maryland, (as regards the question of jurisdiction,) because incorporated under the laws of Maryland, then, by parity of reason, the defendant was also a citizen of Delaware, because incorporated under the laws of Delaware. The proof also showed that four of the directors and some of the stockholders were citizens and residents of Delaware; and the articles of union, under which the defendant exists as a corporate body, contain an express provision, that the stated meetings of the board of directors shall be held, alternately, in Wilmington and in Philadelphia; and that an office shall be kept open in Wilmington, for the transfer of the stock of the company. And by the provisions of an act of the State of Delaware, forming a part of the charter of this company, an annual tax is imposed on so much of its capital stock as formed, before the union, the capital stock of the Wilmington and Susquehanna Railroad Company.]

The plaintiff and defendant below were therefore citizens of the same State.

In the case of this company against Howard, (13 How., 307,) this point did not arise, as the plaintiff in that case was a citizen of Illinois.

In the case of Marshall v. The Baltimore and Ohio Railroad Company, (16 How., 314,) no question was made below in relation to jurisdiction, and the proof did not present the precise question which arises in this case.

In Rundle v. The Delaware and Raritan Canal Company, (14 How., 80, 95,) the facts were essentially different.

Nor was it necessary that this objection should have been made by plea in abatement. The cases of Sheppard v. Graves, (14 How., 510,) and of Jones v. League, (18 How., 76,) it is supposed, do not apply to a case like this. The objection does not present any question of disability of the plaintiff, or of privilege of the defendant. Pleading to the action admits, indeed, the averments of the declaration as to the citizenship of the parties, but nothing more. And if the defendant be a citizen also, of Delaware, as well as of Maryland, there is no repugnancy between the fact admitted in the pleading, and the fact established by the proof. The court, sua sponte, would decline jurisdiction in such case, even if waived by the parties.

The counsel for the defendant in error made the following points:

1. That a corporation may be liable for a libel.

P. and D. St. Co. v. Hungerford, 6 G. and J., 291; 7 G. and J., 44.

East Counties Railway v. Brookes, 2 Eng. L. and Eq., 406.

16 East, 8; Angel & Ames, ch. 10, sec. 9; 14 Eng. C. L. R., 159.

Merls v. Tariff. Manuf. Co., 10 Conn., 384.

Williams v. Beaumont, 10 Bingham, 260, 270.

Goodspeed v. E. Haddam Bk., 22 Conn., 530, 538.

Trenton M. L. I. Co. v. Perine, 3 Zebraskie, 402.

2. That there is sufficient proof of the publication and printing by the corporation.

Clark v. Corp. Washington, 12 Wheat., 40.

Bank U.S. v. Dandridge, 12 Wheat., 64.

Bank Columbia v. Patterson, 7 Cranch, 299.

Union Bank v. Ridgeley, 1 H. and G., 325.

3. That the publication was not in form or substance a privileged communication.

4. The measure of damages was rightly assigned by the court. 14 Howard, 468.

5. (a) The jurisdiction is sufficiently alleged.

(b) The question cannot now be raised on the record.

(c) If it could, the facts show jurisdiction as well as the averment.

Mr. Justice CAMPBELL delivered the opinion of the court.

The plaintiff, (Quigley,) a citizen of Delaware, complained of the defendants, 'a body corporate in the State of Maryland, by a law of the General Assembly of Maryland,' for the publication of a libel by them, in which his capacity and skill as a mechanic and builder of depots, bridges, station-houses, and other structures for railroad companies, had been falsely and maliciously disparaged and undervalued. The defendants pleaded the general issue. On the trial of the cause, it appeared that in 1854, the president and directors, then in charge of the affairs of the defendants, instituted and inquiry into the administration and management of a person who had been the superintendent of their railroad for ten years. Among other subjects, the nature of his connection and dealings with the plaintiff, who had likewise been in the service of the corporation as 'general foreman of all their carpenters,' engaged the attention of the committee of investigation. The president of the company, who conducted the inquiry before this committee on behalf of the corporation, seems to have been convinced that the superintendent had exhibited partiality for the plaintiff, and had allowed him extravagant compensation for service, and the privilege of free transit over the road for himself, his workmen, and freight, to the detriment of the company, and in breach of his duty as superintendent. The superintendent defended himself against these and other imputations, and produced testimony to the skill and fidelity of the plaintiff while in the service of the company; also, to the value of his services, and to the effect that no unusual or improper favor had been extended to him.

The president of the company, in the course of the investigation, addressed a letter to an architect, who had some acquaintance with the plaintiff, to request his opinion of his skill as a mechanic, and whether the services of the plaintiff could have had any peculiar value to a railroad company. The reply of this architect was very pointed and depreciative of the plaintiff, affirming that 'he was not entitled to rank as a third-rate workman,' and 'was unable to make the simplest geometrical calculations.' All the testimony collected by the committee, as produced by the superintendent, was carefully reduced to writing, and printed; first, for the use of the president and directors, and afterwards was submitted to the company at their meeting on the 8th of January, 1855, with a report, which exonerated in a great measure the superintendent from any mal-practice in consequence of his relations with the plaintiff. The investigation was searching, and testimony, which, with the report of the committee, fills two printed volumes, was submitted to the company. The letter of the architect, in answer to the letter of the president, is printed in one of these volumes, and this publication is the libel complained of. Several of the directors testify they were not aware of the publication, and evidence was adduced that the plaintiff had declared that the investigation had resulted in increasing his business. A verdict was returned in favor of the plaintiff. The defendants are a company incorporated by the Legislatures of Delaware and Pennsylvania, as well as of Maryland, to construct a railroad to connect the three cities which contribute to form its name, and a portion of their directors and stockholders are citizens of Delaware.

The defendants contend that they are not liable to be sued in this action; that theirs is a railroad corporation, with defined and limited faculties and powers, and having only suel incidental authority as is necessary to the full exercise of the faculties and powers granted by their charter; that, being a mere legal entity, they are incapable of malice, and that malice is a necessary ingredient in a libel; that this action should have been instituted against the natural persons who were concerned in the publication of the libel. To support this argument, we should be required to concede that a corporate body could only act within the limits and according to the faculties determined by the act of incorporation, and therefore that no crime or offence can be imputed to it. That although illegal acts might be committed for the benefit or within the service of the corporation, and to accomplish objects for which it was created by the direction of their dominant body, that such acts, not being contemplated by the charter, must be referred to the rational and sensible agents who performed them, and the whole responsibility must be limited to those agents, and we should be forced, as a legitimate consequence, to conclude that no action ex delicto or indictment will lie against a corporation for any misfeasance. But this conclusion would be entirely inconsistent with the legislation and jurisprudence of the States of the Union relative to these artificial persons Legislation has encouraged their organization, as they concentrate and employ the intelligence, energy, and capital of society, for the development of enterprises of public utility. There is scarcely an object of general interest for which some association has not been formed, and there are institutions whose members are found in every part of the Union, who contribute their efforts to the common object. To enable impersonal beings-mere legal entities, which exist only in contemplation of law-to perform corporal acts, or deal with personal agents, the principle of representation has been adopted as a part of their constitution. The powers of the corporation are placed in the hands of a governing body selected by the members, who manage its affairs, and who appoint the agents that exercise its faculties for the accomplishment of the object of its being. But these agents may infringe the rights of persons who are unconnected with the corporation, or who are brought into relations of business or intercourse with it. As a necessary correlative to the principle of the exercise of corporate powers and faculties by legal representatives, is the recognition of a corporate responsibility for the acts of those representatives.

With much wariness, and after close and exact scrutiny into the nature of their constitution, have the judicial tribunals determined the legal relations which are established for the corporation by their governing body, and their agents, with the natural persons with whom they are brought into contact or collision. The result of the cases is, that for acts done by the agents of a corporation, either in contractu or in delicto, in the course of its business, and of their employment, the corporation is responsible, as an individual is responsible under similar circumstances. At a very early period, it was decided in Great Britain, as well as in the United States, that actions might be maintained against corporations for torts; and instances may be found, in the judicial annals of both countries, of suits for torts arising from the acts of their agents, of nearly every variety. Trespass quare clausum fregit was supported in 9 Serg. and R., 94; 4 Mann. and G., 452; Assault and Battery, 4 Gray Mass. R., 465; 6 Ex. Ch., 314. For damages by a collision of rail-cars and steamboats, 14 How., 465; 19 How., 543 For a false representation, 34 L. and Eq. R., 14; 11 Wheat., 59.

The case of the National Exchange Co. of Glasgow v. Drew, (2 Macqueen H. of L. Cas., 103,) was that of a company in failing circumstances, whose managers sought to appreciate its stock by a fraudulent representation to the company, and a publication of the report as adopted by it, that its affairs were prosperous. Two of its stockholders were induced to borrow money from the company to invest in its stock. The question in the cause was, whether the company was responsible for the fraud. In the House of Lords, upon appeal, Lord St. Leonards said: 'I have come to the conclusion, that if representations are made by a company fraudulently, for the purpose of enhancing the value of stock, and they induce a third person to purchase stock, those representations so made by them bind the company. I consider representations by the directors of a company as representations by the company, although they may be representations made to the company.' * *  * The report 'becomes the act of the company by its adoption and sending it forth as a true representation of their affairs; and if that representation is made use of in dealing with third persons, for the benefit of the company, it subjects them to the loss which may accrue to the party who deals, trusting to those representations.'

It would be difficult to furnish a reason for the liability of a corporation for a fraud, under such circumstances, that would not apply to sustain an action for the publication of a libel.

The defendants are a corporation, having a large capital distributed among several hundred of persons. Their railroad connects large cities, and passes through a fertile district. Their business brings them in competition with companies and individuals concerned in the business of transportation. They have a numerous body of officers, agents, and servants, for whose fidelity and skill they are responsible, and on whose care the success of their business depends. The stock of the company is a vendible security, and the community expects statements of its condition and management. There is no doubt that it was the duty of the president and directors to investigate the conduct of their officers and agents, and to report the result of that investigation to the stockholders, and that a publication of the evidence and report is within the scope of the powers of the corporation.

But the publication must be made under all the conditions and responsibilities that attach to individuals under such circumstances. The Court of Queen's Bench, in Whitefield v. South Eas. R. R. Co., (May, 1858,) say: 'If we yield to the authorities which say that, in an action for defamation, malice must be alleged, notwithstanding authorities to the contrary, this allegation may be proved by showing that the publication of the libel took place by order of the defendants, and was therefore wrongful, although the defendants had no ill will to the plaintiffs, and did not mean to injure them.' And the court concluded: 'That for what is done by the authority of a corporation aggregate, that a corporation ought as such to be liable, as well as the individuals who compose it.'

The question arises, whether the publication is excused by the relations of the president and directors, as a committee from their board, to the corporation itself. It cannot be denied that the inquiries directed by those officers were within the scope of their power, and in the performance of a moral and legal duty, and that the communication to their constituents of the evidence collected by them, and their conclusions upon the evidence, was a privileged communication in the absence of any malice or bad faith. But the privilege of the officers of the corporation as individuals, or of the corporate body, does not extend to the preservation of the report and evidence in the permanent form of a book for distribution among the persons belonging to the corporation or the members of the community. It has never been decided that the proceedings of a public meeting, though it may have been convened by the authority of law, or of an association engaged in an enterprise of public utility, could be reported in a newspaper as a privileged publication. But a libel contained in such proceedings, if preserved in the form of a bound volume, might be attended with more mischief to private character than any publication in a newspaper of the same document. The opinion of the court is, that in so far as the corporate body authorized the publication in the form employed, they are responsible in damages. The Circuit Court instructed the jury:

1. If the jury find, from the evidence in this case, that the defendants, by the president and directors of said company, published the letter from John T. Mahoney to S. M. Felton, president, &c., dated March 3d, 1854, in the declaration mentioned, and that any or all of the statements in the said letter respecting the plaintiff in his trade and occupation are false; and shall further find, that the said president and directors, at the annual meeting of the stockholders of said company, held 8th January, 1855, reported to the said stockholders their action in the premises, and that the proceedings of the committee of investigation (which contained the said letter) were then being printed, and, as soon as printed, would be distributed to the stockholders, and that said report was accepted by the stockholders; and if the jury shall further find, that, after the meeting of the stockholders had adjourned, the president and directors of said company distributed the book containing the said letter among the stockholders of this company, or any of them, then the jury may find for the plaintiff.

2. And if the jury find for the plaintiff under the first instruction, they are not restricted in giving damages to the actual positive injury sustained by the plaintiff, but may give such exemplary damages, if any, as in their opinion are called for and justified, in view of all the circumstances in this case, to render reparation to plaintiff, and act as an adequate punishment to the defendant.

The first instruction is erroneous, because the publication to which the court referred as blameworthy, and to authorize the jury to find a verdict against the defendant, took place after the commencement of this suit.

The second instruction contains the same error, and is objectionable for the additional reason that the rule of damages is not accurately stated to the jury.

In Day v. Woodworth, 13 How. S.C.. R., 371, this court recognised the power of a jury in certain actions of tort to assess against the tort-feasor punitive or exemplary damages. Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations. Nothing of this kind can be imputed to these defendants.

The letter of Mahoney was reported to the company with other evidence that rendered it innocuous, and its statements were never adopted by them. The plaintiff has repeatedly affirmed that he had derived an advantage from the investigation by the company, and, upon reading all the evidence, as reported and published, we do not perceive how an impression unfavorable to him could have been made by it upon any candid mind. The circumstances under which the evidence was collected, and the publication made, repel the presumption of the existence of malice on the part of the corporation, and so the jury should have been instructed.

The averments in the declaration of the facts proper to give the Circuit Court jurisdiction over the parties, are identical with those which were fully considered by this court, and received the sanction of two-thirds of the judges in Marshall v. The Baltimore and Ohio R. R. Co., 16 How., 314. A repetition of the discussion that took place and was reported with that case is deemed to be unnecessary.

The only plea filed in this cause is the general issue. That plea raises an issue upon the merits of the complaint, and leaves the jurisdictional allegations without a traverse.

No question involving the capacity of the parties in the cause to litigate in the Circuit Court can be raised before the jury under such pleadings. Conard v. Atlantic Insurance Co., 1 Pet., 386; Evans v. Gee, 11 Pet., 80; Owings v. Wickliffe, 17 How., 47. The testimony that the States of Delaware and Pennsylvania had respectively granted a corporate character to the same corporators that form the corporation in Maryland, for the extension of the railroad through those States, to connect the cities that appear in the name of the corporation, and the testimony that some of the directors of the several corporations reside in Delaware, in the condition of the pleadings, was immaterial and irrelevant.

For the errors we have noticed, the judgment of the Circuit Court is reversed, and the cause remanded.

In the judgment of this court, so far as it directs a reversal of that of the Circuit Court, I fully concur. But, in my view, the decision has performed but half its proper office, by omitting to order a dismission of this case by the Circuit Court.

It is not designed here to repeat the arguments or the authorities so often and so unavailingly adduced, in opposition to the cognizance of the Federal court of controversies in which corporations are parties.

Some cursory recapitulation will, however, be attempted of previous decisions made here, as evincing the progress of relaxation and inconsistency from the first departure, from what, by me at least, are deemed sound, legal, and constitutional principles, down to the remarkable instance exemplified in the case before us.

The first step in this progress was the decision that a corporation might be made a party in the Federal courts, by entirely destroying the existence of such a body; and by this process it was pretended that it was made capable of suing and being used, and by imposing liabilities on private natural persons, who, by the very nature and character of the corporate body, and by the terms of its organization, possessed not one of its powers, and could exercise not one of its functions. Vide 5 Cranch, 61; The Bank of the United States v. Deveaux. Next, and in order to cover this glaring irregularity, it seemed necessary to transform a corporation into a quasi, or into so much of a citizen as would authorize its pleading and being impleaded in the Federal courts, although the Constitution and the laws of the United States do not recognise nor make mention of any particular part or fraction of a citizen, but confine the cognizance of the courts to controversies between citizens of different States, sustaining their full natural, political, and social relations. This was the object attempted in the case of the Cincinnati Railroad Company and Letson, in the 2d of Howard. It then became necessary to give to this citizen corporation a local habitation or residence, in order to fix his origin and position, on which it was, and is yet, perhaps, conceded, that his admission into the courts of the United States was dependent; and this court, to accomplish this purpose, seems to have settled upon one or the other of the following conclusions, or perhaps in part on both: that either the locality within which this citizen may be fabricated, or that within which his agents or factors (viz: the president and directors) hold their place of business, determines his political position, his capacities and responsibilities, although it is palpable this latter conclusion abrogates completely the previous doctrine of this court, that the rights and powers of a corporation remain and inhere in the individuals interested in the company, and do not appertain regularly to the associated or organized body. From these anomalous conclusions have arisen the curious formula in pleading, by which access has been sought and permitted in the courts of the United States-as for instance, a certain company, a body corporate, created by some stated authority, but without averring citizenship or residence on the part of that body, but leaving these to be implied by the court, sues or is sued. In the case under review, the party defendant below is averred to be the Philadelphia, Wilmington, and Baltimore Railroad Company, a body corporate in Maryland, incorporated by a law of Maryland. Here, then, is averred neither citizenship, nor an identity with, nor an equivalent for citizenship, nor residence, nor commorancy anywhere, on the part of the defendant. The corporate body is stated to be in Maryland, but whether in its organized constitution, or by the citizenship of its president and directors, or by its individual members, or whether in either character it is or is not of Maryland, is left to the court to supply; and this, too, in defiance of the unbroken chain of decisions from 3 Dallas, 382, down to 6 Wheaton, p. 450, comprising twelve distinct cases, ruling, in totidem verbis, that under the second section of the third article of the Constitution, not only must the parties to suits in the Federal courts be citizens and inhabitants of different States, but that this character must be averred expressly, and must appear upon the record, and cannot be inferred from residence or locality, however unequivocally stated; and that the failure to make the required averment will be fatal to the jurisdiction of a Federal court, either original or appellate, and is not cured by the want of a plea or of a formal exception in any form, and that even the party who is guilty of the irregularity may avail himself of it upon appeal.

This case is marked by peculiarities, which, if they can, consistently with the rules of pleading and evidence, be regularly brought into view, will show more clearly than has hitherto been done the effects of the anomalous proceedings above adverted to. It is ruled by all the cases, that where want of jurisdiction in the Federal courts is apparent on the face of the pleadings, the courts, original and appellate, are bound to take notice of this defect, and that there can be no requisition on parties to show it either by averment or proof. The establishment of this principle certainly dispenses with the necessity for proofs in such a case, for why undertake to establish by proof that which is admitted? Moreover, the character of the defect partakes more, perhaps, of matter of law than of fact. Hence it may be questionable, how far the introduction of any evidence, and still more of cumulative evidence, is or was admissible to show this admitted or patent defect, which it has been so often ruled that the court must take notice of without plea or demurrer. But we see by the record, that evidence, extensive and documentary, was introduced as to this point, and read without objection. And to what conclusions does this evidence, if admissible, inevitably lead? According to the decisions previously made here with respect to corporations according, too, to the argument of counsel for the defendant in error-the Baltimore Railroad Company was created separately and exclusively by the State of Maryland, and its attributes of suing or being sued, and every other attribute or function, was imparted and perfected by that separate authority, which was limited by the power of Maryland. So, too, the Philadelphia Railroad Company was separately and independently created by Pennsylvania; and, in like manner and with like effect, the Delaware Railroad Company, by the State of Delaware. Neither of the States just mentioned had the power to create a citizen of another State, nor to create or invest any attribute or right of citizenship beyond its own jurisdiction. It follows, then, that the incorporation of these companies was in each a separate, independent, and distinct and complete act, operating only within the sphere of the legitimate authority that performed it, and any right or attribute of citizenship it could confer, would be imparted to its own subjects alone; it could not determine the polity of other communities, or the rights of their people. But, by some professional magic, these three separate creations, which, if invested with any of the qualities of citizenship, were necessarily circumscribed as to these by the authority of their respective States, are here converted into one. These three quasi citizens of different States are transformed into one; and, although three-fold in form, less than one; and by this transformation are brought into tribunals where real citizens are not permitted to litigate without averring, and if denied, not without proving the truth and reality of their character in obedience to the command of the Constitution. In the present instance, this may subserve the convenience of the individual, but in another aspect the mischiefs incident to such a relaxation would be apparent and serious. It would be putting it in the power of separate corporations, deriving their origin from distinct sources by claiming a joint name or title, to select at will, for its purposes, a forum within that jurisdiction, within which either corporate body was created. The averments of citizenship and residence being dispensed with by this court, no check is left to such a combination and irregularity; and by this practice there is extended to artificial bodies, which are not, and cannot, from the nature of things, be citizens, privileges which belong by the Constitution to citizens only, and upon proof, if required, of the reality of their character as such.

It has just been remarked that the arguments against the jurisdiction of the Federal courts over corporate bodies may be found in some of the opinions delivered in the case of Marshall against the Baltimore and Ohio Railroad Company, and it is said that these arguments it is unnecessary to repeat, and it is seen that they have not been deemed of sufficient cogency to prevent a concurrence in proceedings and pretensions which those arguments were urged to condemn.

The relevancy or the justice of the above declaration I confess myself somewhat at a loss to comprehend. If it be intended by way of recantation, prompted by a conviction of the unsoundness of those arguments, and as a criticism upon those who are unable to chime in with the notes of such a palinodia, it would seem to me that a direct avowal of that conviction, and of the consequences to which it had led, would have been nothing more than justice to all. If, on the other hand, the soundness of those arguments is still regarded as a regular deduction from constitutional principle, and from fealty to the Constitution, then a relinquishment of those arguments, or the failure to assert them on every occasion similar to that first calling them forth, however, justifiable in the view of others, would in myself, by myself, be felt as a compromise of a sacred and solemn duty. The vindication of truth, whenever we shall be called on to speak or to act, can never, in my opinion, be properly shunned; I, therefore, am bound to reassert all which I have endeavored earnestly, however feebly, to maintain, and which I still believe.

I am further of the opinion, that apart from any question as to the peculiar jurisdiction of the Federal courts, this action could not be maintained in any forum possessing even general legal powers. It is to be borne in mind, that the proceedings in this case are not founded upon any express or peculiar right or authority vested by statute or other special and competent power, but are claimed as the legitimate consequences inherent in, and flowing from, the nature and constitution of corporations aggregate. By those who affirm this doctrine it is indispensable that they should show as inherent in, and consistent with, the constitution of such corporations, the attributes and qualities to which proceedings like the present are calculated to apply, and with which they can, by any rational or logical comprehension, be made applicable. The metamorphosis which would transmute an aggregate corporation into a natural person, must necessarily transfuse into this new creation the capabilities and qualities of the being into which it is changed. Upon any other hypothesis, the fact of identity could not be. Natural persons are capable of the passions of love and hate; can contend in mortal combat by duel or otherwise; can go into the field in command of armies; can sit upon the bench of justice, or in the legislative or executive departments of the Government. According to this transmutation theory, all these qualities are imparted to its new promethean experiment, who, of course, could he be only apprehended or laid hold of, might, like his prototype-or, more properly, his other self-be subjected for the misuse of those qualities to the extremest penalties of the law, the scaffold or the gallows. To my apprehension, this theory involves the confounding of all political, legal, moral and social distinctions. By that apprehension, derived from the definitions of corporations aggregate, as given by Brooke, Coke, and Blackstone, and by the express language of this tribunal in the earlier cases decided by it, these bodies are regarded as merely artificial-a species of fictiones juris, created for particular objects, and vested certainly with no greater or higher attributes than the creator of those bodies has power to bestow. Man can have no power to confer mind, passion, or moral perception, nor moral powers, upon a mere fabrication of his own-a mere piece of parchment or paper. No quo animo, therefore, can be affirmed of a fiction to which no animus, or passion, or moral quality, can be imparted.

It has ever been admitted, that into slander or libel, malice essentially enters. Slander or libel is an injury inflicted with a wicked or malevolent motive. Reason and common sense would hence conclude, that where there could be motive of no kind whatsoever, there could be no malice, and therefore no offence, of which malice is the essential, the leading and distinguishing characteristic.

In several of the English cases it has been ruled, that trover and trespass quare clausum fregit may be maintained against a corporation; and this, with respect to the latter action, is going a great way, as it is not very easy to explain in what mode a mere fiction or legal faculty can act vi et armis; yet a conceivable distinction may be taken between acts injurious in their effects and viewed as mere facts, and performed independently of or without motive, and for which the actor is bound to make reparation, and conduct the character of which lies exclusively in the motive, and which, apart from such motive, can neither exist nor be conceived.

In conformity with these conclusions is the opinion of Aldersen Baron, as late as the year 1854. (Vide 10 Exchequer Rep. 356; Stevens v. Midland Counties Railway Co.)

But a precedent for the affirmation of such a legal, physical, and moral anomaly as an act to be characterized and appreciated by a quality which by no possibility can appertain to it, is relied upon in this case; and so far as that precedent is comprehended, it seems designed, at any rate, for an application like the one made of it in this cause. It is believed, however, to be a solitary precedent; and as the force of that precedent (owing, perhaps, to no fault in his Lordship's reasoning, but in those who are incapable of understanding his logic) is not very clearly apprehended; and as it most certainly contravenes the course of decision for centuries, the presumption of not yielding implicitly to the ruling of a Lord Chief Justice may perhaps be pardoned. This precedent is found in the case of Whitfield et al. v. The Southeastern Railway Company, just cited from the bench. That was an action for a libel, and the declaration was demurred to, for the reason that malice could not be affirmed of a corporation aggregate.

His Lordship says: 'The demurrer to the declaration in this case can only be maintained on the ground that the action will not lie without proof of express malice, as contradistinguished from legal malice.'

How is this expression of his Lordship to be understood? The averment of malice, and the application of that averment to the defendants, was a question arising upon the pleadings, and upon the character or capacity of the party complained of, as disclosed upon the face of the declaration. Whether malice, either express or implied, could be imputed to the plaintiff, could have no influence a priori; if malice was alleged, it opened at once the only legitimate question arising upon the demurrer, viz: could the defendants be guilty of malice? The character or the degree of malice was a question arising upon the proofs, and was the proper subject for the instructions from the judge. It would be difficult to find a precedent in pleading, wherein a distinct averment as to express or implied or legal malice was made.

His Lordship proceeds: 'But if we yield to the authorities which say that in an action for defamation malice must be alleged, notwithstanding authorities to the contrary.' And here, with a willingness always to be instructed, I would gladly learn what authorities those are to which reference is thus made; for within the sphere of my own inquiries, going as far back as Owen, 51; Noy, 85; 1 Saunders, 242; 4 Bur., 2423; 3 Taunton, 246; and coming down to 8 Adolph. and Ell., 652; 1 Maule and Selwin, 639, it is held, without a dissentient, that the declaration must show a malicious intent in defendant; and although the word maliciously is not absolutely necessarily requisite, yet words of equivalent import must be used; and it is said that the usual and better form of pleading is, falsely and maliciously. (Vide 1 Rep., 273.)

His Lordship further proceeds, or is made to say: 'This allegation may be proved, by showing that the publication of the libel took place by order of the defendants, and was therefore wrongful, although the defendants had no ill will to the plaintiffs, and did not mean to injure them. Therefore, (note the conclusion,) 'The ground on which it is contended that an action for a libel cannot be maintained against a corporation aggregate fails.' He who can connect this corollary with the premises surpasses any ingenuity of mine.

'This allegation may be proved.' What allegation, we ask? Why, the libel, a malicious publication, 'by showing that it took place by order of the defendants, although the defendants had no ill will to the plaintiffs, and did not intend to injure them.' Thus it is said to be the law, that a libel may exist without an unfriendly intention; and with equal reason might it be alleged or imputed where the intention was amicable.

I give the concluding reasons ascribed to his Lordship for his decision. They are as follows:

'I may mention, that corporations aggregate are now so common, that I believe that a public journal is conducted by a corporation aggregate limited. Therefore, it seems to us, that for what is done by the authority of a corporation aggregate, that a corporation aggregate ought, as such, to be liable as well perhaps as the individuals. Therefore, we think there ought to be judgment for the plaintiffs.'

The connection between the number of aggregate corporations and their capacities or liabilities, and the dependence in any degree of the one upon the other, I leave to those who have been favored with greater perspicacity than has been given to me. I am wholly unable to perceive them.

In fine, with due respect for others, and with becoming diffidence of myself, I am constrained to say, of the opinion in the case of Whitfield v. The Southeastern Railway Company, as it has been brought to the view of this court, that in its arguments and conclusions it is confused and obscure; and is incongruous and contradictory, both in its reasoning and its conclusions. In the line of English adjudications it presents itself as solitary and eccentric, and in opposition to the most inveterate, the clearest, and reiterated distinctions announced by the sages of the law distinctions having their foundation in reason and in the essential character of the subjects to which those distinctions have been applied. I cannot yield to that opinion my assent. I think, therefore, that for either of the objections before assigned there should be added to the reversal of the judgment of the Circuit Court an order for a dismission of the suit.


text: Talk:Philadelphia Wilmington and Baltimore Railroad Company v. Quigley/Opinion of the Court

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


text:
Campbell v. Boyreau

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

The case having been decided by this court upon a point of practice, it is necessary to state only so much of its as to show how the point of practice arose.

It was a suit in the nature of an ejectment, brought by Boyreau to recover all the undivided half of an undivided eighteenth part of that certain tract of land, rancho, or farm, known as the 'Rancho San Leandro,' situate in the county of Alameda, State aforesaid, bounded as follows: on the north by the San Leandro creek; on the west by the bay of San Francisco; on the south by the San Lorenzo creek; and on the east by a line commencing on the southern bank of the San Leandro creek, at a point on said bank, from whence a line bearing south, 29 degrees east, will strike the eastern bank of a lagoon, situated about six or seven chains south of said creek, thence running on said line about two hundred and sixty-two (262) chains, parallel with a ridge of hills running from the San Leandro creek to the San Lorenzo creek, at a point at the base of the foot hills on the said creek.

Upon the trial, the whole case was submitted to the court, a jury being expressly waived by agreement of parties; and the evidence and arguments of counsel being heard, the court proceeded to find a long history of facts, which is set forth in the record. The copy of the grant offered in evidence excluded land on the east occupied by the Indians, and the court, in its finding, ran the east line in such a way as to exclude two of the defendants, who were pronounced not guilty. All the evidence necessary for the court to make up its opinion upon this point, and also upon other facts in the case, would seem to belong more appropriately to a jury. The second bill of exceptions contained the elaborate opinion of the court, in which questions of fact and questions of law were all decided.

The case was argued for the defendant in error in this court by Mr. Brent and Mr. Crittenden, who, upon the point in question, contended that the finding by the court of the facts was as binding on the plaintiffs in error as if the facts were stated in a special verdict.

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

title: Campbell v. Boyreau


text:
Page:Copyright, Its History And Its Law (1912).djvu/180

 despite the ad interim registration. When an American-made edition with notice of copyright can be published in America simultaneously with its publication abroad, ad interim protection is of course rendered unnecessary; and such simultaneous publication is the simplest and best practice for publishers to adopt.

It may also be emphasized here that the notice of copyright can be omitted only from foreign-made copies and must be included in the American-made edition. The American publisher desiring to reprint a book published abroad in the English language within sixty days after publication, without consent of the copyright proprietor, must therefore assure himself, by inquiry from the Copyright Office, whether the work has been registered ad interim. The printing of an American copyright notice on the foreign edition in anticipation of the publication of an American-made edition and the deposit of copies thereof within the statutory requirements is a questionable practice, as a failure to publish American-made copies in the United States, because of defective publishing arrangements or a printers' or binders' strike, would make such notice a false notice of copyright. The copyright term in the case of such foreign work in the English language dates, it would seem, from the date of publication abroad rather than from the date of publication of the American-made edition ; but this would be of importance only toward the expiration of the original term and in connection with the renewal term.

Ad interim protection seems to be confined exclusively to a book as such, and therefore does not apply to articles in periodicals.

It should be noted that an American author publishing his work abroad is not benefited by either of these provisions respecting foreign works. The pro


text: Talk:Campbell v. Boyreau

title: Talk:Campbell v. Boyreau


text:
Campbell v. Boyreau/Opinion of the Court

This is an action of ejectment (although the pleadings are not in the form prescribed by the common law) to recover a tract of land called San Leandro, situated in California. It was brought in the Circuit Court of the United States for that district. The parties agreed to waive a trial of the facts by a jury, and that the facts as well as the law should be decided by the court, upon the evidence adduced by the parties.

In pursuance of this agreement, evidence was offered on both sides; and the court proceeded to decide the facts in dispute, and then proceeded to decide the questions of law arising on the facts so found by the court; and finally gave judgment against the plaintiffs in error, who were defendants in the court below. And this writ of error is brought to revise that judgment.

It appears by the transcript that several exceptions to the opinion of the court were taken at the trial by the plaintiffs in error-some to the admissibility of evidence, and others to the construction and legal effect which the court gave to certain instruments of writing. But it is unnecessary to state them particularly; for it has been repeatedly decided by this court, that, in the mode of proceeding which the parties have seen proper to adopt, none of the questions, whether of fact or of law, decided by the court below, can be re-examined and revised in this court upon a writ of error.

It will be sufficient, in order to show the grounds upon which this doctrine has been maintained, and how firmly it has been settled in this court, to refer to two or three recent cases, without enumerating the various decisions previously made, which maintain the same principles. The point was directly decided in Gould and others v. Frontin, 18 How., 135; which, like the present, was a case from California, where a court of the United States had adopted the same mode of proceeding with that followed in the present instance. And the decision in that case was again reaffirmed in the case of Suydam v. Williamson and others, 20 How., 432; and again in the case of Kelsey and others v. Forsyth, decided at the present term.

Indeed, under the acts of Congress establishing and organizing the courts of the United States, it is clear that the decision could not be otherwise; for, so far as questions of law are concerned, they are regulated in their modes of proceeding according to the rules and principles of the common law, with the single exception of the courts in the State of Louisiana, of which we shall presently speak. And by the established and familiar rules and principles which govern common-law proceedings, no question of the law can be reviewed and re-examined in an appellate court upon writ of error, (except only where it arises upon the process, pleadings, or judgment, in the cause,) unless the facts are found by a jury, by a general or special verdict, or are admitted by the parties, upon a case stated in the nature of a special verdict stating the facts, and referring the questions of law to the court.

The finding of issues in fact by the court upon the evidence is altogether unknown to a common-law court, and cannot be recognised as a judicial act. Such questions are exclusively within the province of the jury; and if, by agreement of parties, the questions of fact in dispute are submitted for decision to the judge upon the evidence, he does not exercise judicial authority in deciding, but acts rather in the character of an arbitrator. And this court, therefore, cannot regard the facts so found as judicially determined in the court below, nor examine the questions of law, as if those facts had been conclusively determined by a jury or settled by the admission of the parties. Nor can any exception be taken to an opinion of the court upon the admission or rejection of testimony, or upon any other question of law which may grow out of the evidence, unless a jury was actually impanelled, and the exception reserved while they were still at the bar. The statute which gives the exception in a trial at common law gives it only in such cases. And as this court cannot regard the facts found by the judge as having been judicially determined in the court below, there are no facts before us upon which questions of law may legally and judicially have arisen in the inferior court, and no questions, therefore, open to our revision as an appellate tribunal. Consequently, as the Circuit Court had jurisdiction of the subject-matter and the parties, and there is no question of law or fact open to our re-examination, its judgment must be presumed to be right, and on that ground only affirmed.

The cases referred to in the argument, which were brought up by writs of error to a Circuit Court of Louisiana, do not apply to this case. The act of Congress of May 26, 1824, (4 Stat., 62,) adopted the practice of the State courts in the courts of the United States. And a writ of error to a Circuit Court of that State, therefore, is governed by different principles from a like writ to the Circuit Court of any other State. And as, by the laws of Louisiana, the facts, by consent of parties, may be tried and found by the court without the intervention of a jury, this court is bound, upon a writ of error, to regard them as judicially determined, and treat them as if they had been found by the special verdict; and the questions of law which arise on them are consequently open to the revision of this court.

But the practice in relation to the decisions in that State is an exception to the general rules and principles which regulate the proceedings of the courts of the United States; nor can the laws or the practice of any other State authorize a proceding in the courts of the United States different from that which was established by the acts of 1789 and 1803, and the subsequent laws carrying out the same principles and modes of proceeding.

Upon the grounds above stated, the judgment in this case must be affirmed. But it must at the same time be understood that this court express no opinion as to the facts or the law as decided by the Circuit Court, and that the whole case is open to re-examination and revision here, if the questions of fact or law should hereafter be brought legally before us, and in a shape that would enable this court to exercise its appellate jurisdiction.


text: Talk:Campbell v. Boyreau/Opinion of the Court


text: Lessee of French v. Spencer

title: Lessee of French v. Spencer


text: Talk:Lessee of French v. Spencer

title: Talk:Lessee of French v. Spencer


text:
Lessee of French v. Spencer/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 Indiana.

It was an ejectment brought by French and wife, to recover an undivided half of three hundred and twenty acres of land in the county of Vigo, in Indiana.

Upon the trial, the evidence offered by the plaintiff was as follows:

1. Evidence that one Silas Fosgit, who had been a Canadian volunteer in the army of the United States in the last war with Great Britain, had died between the 28th of June, 1816, and the 29th day of June, 1823, and that his only heirs at law were Minerva French, (wife of said William C. French,) residing in the State of Michigan, and one Aruna Fosgit.

2. A copy of a patent, dated on the 26th of October, 1816, to Silas Fosgit, for two quarter sections of land in the district of Vincennes.

The evidence offered by the defendants was as follows:

1. The original patent above mentioned, which had been deposited by one Abraham Markle with George Horner in 1817, who delivered the same to the defendants in 1854.

2. Evidence that they were the only children and heirs at law of one William H. Spencer, sen., who died in 1852, and also that the warrant was located upon the lands in dispute, by Abraham Markle, on the 3d of June, 1816.

3. The deed or assignment from Fosgit to Spencer, duly proved. As the court considered this assignment sufficient to convey the land, it may be as well to insert it, viz:

'Whereas I, the undersigned, Silas Fosgit, late a private in the corps of Canadian volunteers, commanded by Lieutenant Colonel Joseph Wilcox, deceased, lately in the service of the United States of America, according to the provisions of an act of Congress of the United States of America, passed March 5th, 1816, entitled 'An act granting bounties in lands and extra pay to certain Canadian volunteers,' having applied for, have obtained a warrant, issued by the Secretary of the Department of War, for the location of three hundred and twenty acres of land within the Indiana Territory, agreeably to the directions of said act:

'Now, know all men by these presents, that I, the said Silas Fosgit, for and in consideration of the sum of five hundred dollars to me in hand paid by William H. Spencer, Esquire, of Genesee, in the county of Ontario, and State of New York, the receipt whereof I do hereby confess and acknowledge, have assigned and set over, and by these presents do grant, bargain, sell, transfer, assign, and set over, to said William H. Spencer, his heirs and assigns, forever, the said three hundred and twenty acres of land; to have and to hold the same, in as full and ample manner as I, the said Silas Fosgit, my heirs or assigns, might or could enjoy the same by virtue of the said warrant or otherwise. And I do, for myself, my heirs and assigns, hereby authorize and empower the said William H. Spencer, his heirs and assigns, to make location of the said lands under and by virtue of the said warrant, and agreeably to the directions of the said act; and upon location thereof being made as aforesaid, to demand and receive a patent or deed of and for the said lands, in his own name, and for his sole use, benefit, and behoof; to the which end and intent I, the said Silas Fosgit, have and do make, ordain, constitute, and appoint the said William H. Spencer, his heirs and assigns, my true and lawful attorney and attorneys, irrevocable, to ask, require, demand, and receive the said deed or patent of and for the said land, and also to make location thereof, and one or more attorney or attorneys under him to constitute; and whatsoever the said William H. Spencer or his attorney or attorneys shall lawfully do in the premises, I, the said Silas, do hereby allow and confirm.

'In testimony whereof, I have hereunto set my hand and seal, this 28th day of June, 1816.

'SILAS FOSGIT. [SEAL.]

'In presence of—

GEORGE HORNER.'

The counsel for the plaintiff objected to the reading of this deed in evidence, for the following reasons, viz:

1. Because said writing is upon its face void, as being in violation of the acts of Congress touching the subject of bounties in lands for military services, and against the public policy of the United States on that subject.

2. Because said writing, on a fair legal construction of its terms, conveys no legal title (and, indeed, no title at all, of any kind) to the lands in question.

3. Because said writing is irrelevant, and incompetent as evidence in this cause.

But the court allowed it to be read, and instructed the jury that if furnished a conclusive defence to the action. Whereupon the plaintiff objected, and brought the case up to this court.

It was argued by Mr. Thompson for the plaintiff in error, and by Mr. Bennett for the defendants in error.

The counsel for the plaintiff in error contended that the warrant was not assignable by the acts of Congress, under which it was issued; that the deed was not, in point of fact, an assignment of the warrant; that the warrant had been located on the 3d of June, twenty-five days before the paper was executed; that the paper did not amount to a conveyance of land; that it did not purport so to be; and that, if it were intended to be a deed of conveyance, it was void for uncertainty in the designation and description of the land. Upon the point whether the assignment related back to the date of the entry, the counsel for the plaintiff remarked:

But if it had been designed as a deed of conveyance, it did not convey the legal estate to Spencer, for Fosgit, at that time, had no such estate to convey. He could convey no higher estate than he had, and, if he had none in the particular land, he could convey none.

Coke, sec. 446.

Hillard's Ab., 309, sec. 25.

The patent was not issued until October 26, 1816-four months after this paper was executed-and, until then, the legal title was in the United States.

Foley v. Harrison, 15 How., 447.

Dubois v. Newman, 4 Wash. C. C. R., 77.

Wilcox v. Jackson, 13 Pet., 516.

Green v. Liter, 8 Cranch, 229.

Irvine v. Marshall & Barton, 20 How., 558.

If the legal title was in the United States till October 26, 1816, this paper could not have conveyed such a title to Spencer, on the 28th of June before that, as would have availed him then, or his heirs now, in an action of ejectment.

Baynel v. Broderick, 13 Pet., 436.

It is of no avail to say that, the moment the entry was made, the title so vested in Fosgit as that he could convey. What title? Not the legal title, certainly, for that, upon the authority of the foregoing cases, was in the United States. The most that could be claimed for him would be a mere equity; and it might well be questioned, if it were necessary in this action, whether he had even an equitable title to any particular land. The language of the act granting these bounty lands is, that the party 'shall be entitled to three hundred and twenty acres,' &c. This grants nothing; no title passes by it. He shall be entitled to it when he shall get a warrant, select the land, have the selection confirmed, and get a patent. All this has to be done before he can have any title at all, and, until it is done, the title remains in the Government. If, therefore, he could sell or assign anything before all this was done, it could not be any title in the land, whatever else it might be.

If, then, this instrument is a deed of conveyance at all, it conveys at most but an equity, which does not avial the defendants in this action. If that were conceded to be its import, it would amount to nothing more than an executory contract to convey the legal estate, at some future time.

But, again, if it is conceded to be a deed of conveyance, it is a quit-claim merely, by which Fosgit parted only with the equitable estate he possessed at its date. Therefore, the Circuit Court erred in deciding that the subsequent legal estate which Fosgit acquired by the patent had relation back to the date of this instrument, and ripened the equity which Spencer acquired thereby into a legal title. A subsequently-acquired estate does not pass where there are no covenants of title.

Van Renssellear v. Kearney, 11 How., 297.

Pelletren v. Jackson, 11 Wend., 116.

Jackson v. Waldron, 13 Wend., 212.

The United States never parted with the legal title to this land till the patent was issued, October 26, 1816. By that act, the title passed to Fosgit, and consequently must remain in his heirs, unless conveyed away by him or them. It is not pretended that this has been done by the heirs, and Fosgit himself could not have done it, before he had it, except by deed with warranty of title. He made no such deed.

It is, however, insisted that it is to be presumed, from lapse of time, that the legal estate has been conveyed to Spencer. This abandons the ground that the instrument of June 28, 1816, is a conveyance, and treats it as an executory contract to convey, and yields the point upon which the case was decided in the Circuit Court.

This presumption, that a deed was executed by Fosgit to Spencer, does not arise in the case as it now stands. The case turned, in the court below, upon the single question of the validity and effect of the paper of June 28, 1816; and both the instruction of the court and the bill of exceptions show this. It will be an easy matter to show that no such presumption can be indulged in this case, if that question shall ever arise. There is nothing to base it upon. It is not shown that twenty years have elapsed since Fosgit was in a condition to execute the agreement to convey.

3 Phill. on Ev., Cow. and Hill's Notes, 505, and cases cited.

Nor that he ever knew that the legal estate had passed to him by the issuance of the patent, or that, after his death, his heirs ever knew it. The disability and ignorance of the party always repel presumptions.

3 Phill. on Ev., C. and H.'s Notes, 497.

3 John. C. R., 129.

Hurst's Lessee v. McNeil, 1 Wash. C. C. R., 70.

Henderson v. Hamilton, 1 Hall's Rep., 314.

And, besides all this, there is no pretence of twenty years possession, claiming under adverse title.

3 Phill. on Ev., C. and H., 496, and authorities cited.

3 Green R., 120.

But, until this question shall properly arise, it will be premature to discuss it.

The counsel for the defendants in error made the following points upon the leading questions decided by this court:

I. By the issuing and location of his warrant for three hundred and twenty acres, Fosgit had title to the land, under the act 'granting bounties to the Canadian volunteers;' and his deed to Spencer, who paid him five hundred dollars for it, was valid and effectual, as between the parties, to convey his right and title, even if no patent had ever issued. And the law was so held at the time. (No patent was required under this act; the grant, the warrant, and location, made the title perfect.)

Statutes, vol. 3, p. 256.

Laws of Indiana, 1807, 539, ch. 38.

13 Peters, 498; 2 Wheaton, 196.

3 Ohio R., 107; 16 J. R., 172, 178.

8 J. R., 315, 60, 81; 10 J. R., 456.

3 Stat. at Large, 641.

II. The patent was merely a formal (and unnecessary) evidence of this title, and, when issued, related back to the date of the act, (or the entry upon the land,) and would inure to the benefit of a bona fide purchaser.

3 Caines R., 62; 2 J. R., 80.

12 J. R., 140; 3 McLean's R., 109.

10 How., 372, 373; 5 Port., 237, 245.

III. Fosgit and his heirs are estopped from disputing Spencer's title.

1. By the deed.

11 How., 322, 323, 325; 6 Ind. R., 128.

7 How., 430; 9 Wend., 229.

1 Barb., 610; 4 Denio, 480.

3 Comstock, 276; 18 How., 82, 85.

The recitals in the deed to Spencer are equivalent to an assertion that Fosgit had title to the three hundred and twenty acres of land which he conveyed to Spencer. By this, Fosgit and his heirs and bound as much as if the deed contained a covenant of warranty.

11 How., 322, 323, 325; 18 How., 82, 85.

A deed, with covenants, would have passed an after-acquired title. This deed is just as effectual, for it estops the plaintiff from asserting an after-acquired title against defendants.

2. By receiving and retaining the five hundred dollars paid by Spencer for the land.

7 Harris, 430; 8 Wend., 480.

2 Hill, 64; 1 Denio, 169.

2 Denio, 139; 3 J. Ch. R., 23.

3. By the irrevocable power of attorney given to Spencer, that he might require and receive any further deed or patent necessary to secure his title for his 'sole use and benefit.' This patent, when obtained, was to be for Spencer's benefit. Attempting to use it for Fosgit's was a fraud, and the doctrine of estoppel applies. The instructions of the court were therefore right.

6 Indiana R., 128, 289; 7 do., 301.

IV. The deed was not in violation of any act of Congress. The act 'granting land to the Canadian volunteers' did not forbid a transfer of the warrant or a sale of the land.

Statutes, vol. 3, p. 256.

The act afterwards passed do not include the Canadian volunteers, but are confined to enlisted soldiers. This is conceded as to all acts framed before April 16, 1816. That act could not defeat the vested rights acquired under the act of March 5, 1816.

7 John., 477; 7 Barb., 445.

The act of 16th April, 1816, does not embrace the Canadian volunteers. A special act providing for a particular case is not changed by general words in another act; effect should be given to both. It applies only to soldiers enlisted during the late war.

3 Stat. at L., 287, sec. 5.

A prohibition against assigning the warrant, or selling the land, after the grant was made, would have been void.

It would have improperly interfered with private property and vested rights.

Congress settled this question by the act of 3d March, 1821.

3 Stat. at L., 641; 1 Indiana R., 342.

This act, in effect, declared the opinion of the Attorney General wrong. It confirmed all assignments or sales of the Canadian volunteers. It was a declaratory act of what the law was, and was as valid and effectual as to sales made before or after its passage.

If this act cannot have a retrospective effect, how can the act forbidding the sales or assignments, passed after the grant was made? If both relate back, or if neither relate back, defendants' rights are protected. But the act forbidding a transfer applies only to enlisted sailors.

Besides, Fosgit, by his agent, Markle, had located the land. He did not sell the warrant to Spencer, but the 'three hundred and twenty acres of land;' and there is no act of Congress preventing any man from selling his land which he has selected and located, and a right to take and hold, and which he has taken possession of. Congress has no power to pass such an act, nor is there any decision to be found that a patent, when afterwards issued, in such a case, would not inure to the benefit of a bona fide purchaser.

36 Maine, 448.

Mr. Justice CATRON delivered the opinion of the court.

Silas Fosgit obtained a warrant for three hundred and twenty acres of land as a Canadian volunteer in the war of 1812 with Great Britain. This warrant he caused to be located in the Indiana Territory, June 3, 1816, on the land in dispute. On the twenty-eighth day of that month he conveyed the land to William H. Spencer, who died in possession of the same; it descended to his children and heirs, who continued in possession, and are sued in this action by one of the two heirs of Fosgit, who died about 1823. A patent was issued by the United States to Fosgit, dated in October, 1816. The deed from Fosgit to Spencer was offered in evidence in the Circuit Court, on behalf of the defendants, and was objected to:

1st. Because it is void on its face, being in violation of the acts of Congress touching the subject of bounty land for military services, and against the policy of the United States on that subject.

2d. Because said writing, on a fair legal construction of its terms, conveys no legal title (and indeed no title at all, of any kind) to the lands in question; and

3d. Because said writing is irrelevant, and incompetent as evidence in this cause.

The court overruled the objections, and permitted the defendants to give the writing in evidence, and instructed the jury that it was a complete defence to the action; to all of which the plaintiff excepted.

1. Was the writing void because it was in violation of acts of Congress touching the sale of bounty lands before the patent had issued? This depends on a due construction of the act of 1816. It gave to each colonel nine hundred and sixty acres; to each major eight hundred acres; to each captain six hundred and forty acres; to each subaltern officer four hundred acres; to each non-commissioned officer, musician, and private, three hundred and twenty acres; and to the medical and other staff in proportion to their pay, compared with that of commissioned officers. Warrants were ordered to be issued by the Secretary at War, subject to be located by the owner, in quarter sections, on lands within the Indiana Territory, surveyed by the United States at the time of the location. And three months additional pay was awarded to this description of troops.

By the acts of 1811, ch. 10, 1812, ch. 14, sec. 12, and that of May 6, 1812, ch. 77, sec. 2, it was provided that each private and non-commissioned officer, who enlisted in the regular service for five years, and was honorably discharged, and obtained a certificate from his commanding officer of his faithful service, should be entitled to a bounty of one hundred and sixty acres of land; and that the heirs of those who died in service should be entitled to the same, to each of whom by name a warrant was to issue. The act of May 6, 1812, provided for surveying, designating, and granting these bounty lands; the fourth section of which declares that no claim for military land bounties shall be assignable or transferable until after the patent has been granted; and that all sales, mortgages, or contracts, made prior to the issuing of the patent, shall be void; nor shall the lands be subject to execution sale till after the patent issues.

It is insisted that this provision accompanies and is part of the act of 1816, and several opinions of Mr. Attorney General Wirt are relied on to sustain the position that the acts granting bounty lands are in pari materia, and must be construed alike. He gave an opinion in 1819, (2 L. L., and Opinion 6,) that a land warrant issued to a Canadian volunteer was not assignable on its face, or in its nature, and consequently that the patent must issue in the name of the soldier. But he did not decide, nor was he called on to do so, that, after the warrant had been located and merged in the entry, that the equitable title and right of possession to the land could not be transferred by contract.

The act of 1816 involves considerations, different from the previous provisions, for the protection of the enlisted common soldier. A class of active, efficient, American citizens, who had emigrated to Canada, were compelled to leave there on the war of 1812 breaking out; they returned to their own country, and went into its service; and when the war was ended, both officers and soldiers were compensated in lands and money for this extraordinary service. The act of Congress orders the warrants to be delivered to the respective owners, to be located by them; whereas the common soldier, provided for in the acts of 1811 and 1812, did not receive his warrant, but the Government bound itself to locate the land at its own expense. Congress may have thought it not at all necessary to guard the Canadian volunteers against being overreached by speculators, and deprived of their bounty lands. This, however, is mere conjecture. The act of March 5, 1816, has no reference to, or necessary connection with, any other bounty-land act; it is plain on its face, and single in its purpose. And, then, what is the rule? One that cannot be departed from without assuming on part of the judicial tribunals legislative power. It is, that where the Legislature makes a plain provision, without making any exception, the courts can make none. McIver v. Reagain, 2 Wheaton, 25; Patton v. McClure, Martin and Yerger's Ten. R., 345, and cases cited; Cocke & Jack v. McGinnis, ib., 365; Smith v. Troup, 20 Johns., 33. We are therefore of the opinion that Fosgit could sell and convey the land to Spencer after the entry was made.

2. The next ground of objection to the deed is, that it conveys no title when fairly construed. It has a double aspect, obviously, for the reason that the parties to it did not know, at the time it was executed, whether or not the land had been located by Fosgit's agent. The issuing of the warrant is recited in the deed, and the quantity of land it calls for; and then the grantor says: 'For the consideration of five hundred dollars, I have assigned and set over, and by these presents do grant, bargain, sell, transfer, assign, and set over, to said William H. Spencer, his heirs and assigns, forever, the said three hundred and twenty acres of land; to have and to hold the same in as full and ample a manner as I, the said Silas Fosgit, my heirs or assigns, might or could enjoy the same, by virtue of the said land warrant or otherwise.' Then follows an irrevocable power from Fosgit to Spencer, his heirs or assigns, to locate the warrant, obtain a patent, &c.

The warrant having been located on land already surveyed, it could easily be identified. The description is to the same effect as if the deed had said, I convey the land covered by my warrant of three hundred and twenty acres.

We are therefore of the opinion that the deed was a valid conveyance of Fosgit's interest in the land sued for at the time the deed was executed.

The third exception to the deed is covered by the foregoing answers.

3. The charge of the court to the jury held, as a matter of law, that the deed was a complete defence to the action, and that the patent issued to Fosgit related back to the location of the warrant, and constituted part of Spencer's title.

This consideration involves a question of great practical importance to States and Territories where entries exist on which patents have not issued, as sales of such titles are usual and numerous. The incipient state of such titles has not presented any material inconvenience, as it is usually provided by State laws that suits in ejectment may be prosecuted or defended by virtue of the title.

In Indiana, it is provided by statute that 'every certificate of purchase at a land office of the United States shall be evidence of legal title to the land therein described.' That is to say, for the purposes of alienation and transfer, and for the purposes of litigating rights of property and possession, a certificate of purchase shall be treated as a legal title; and to this effect it is competent evidence in an action of ejectment. Smith v. Mosier, 5 Black. R., 51.

After the patent issued, this title was exclusively subject to State regulations, in so far as remedies were provided for its enforcement or protection; and therefore no objection can be made to any State law that does not impugn the title acquired from the United States.

Whether the patent related back in support of Spencer's deed is not a new question in this court. It arose in the case of Landes v. Brant, (10 How., 372,) where it was held that a patent issued in 1845 'to Claymorgan and his heirs,' by which the heirs took the legal title, related back and inured to the protection of a title founded on a sheriff's sale of Claymorgan's equitable interest, made in 1808. There, as here, the contest was between the grantee's heirs and the purchaser of the incipient title. The court holding, that when the patent issued, it related to the inception of title, and must be taken, as between the parties to the suit, to bear date with the commencement of title.

It is also the settled doctrine of this court, that an entry in a United States land office on which a patent issues, (no matter how long after the entry is made,) shall relate to the entry, and take date with it. (Ross v. Barland, 1 Peters, 655.) The fiction of relation is, that an intermediate bona fide alienee of the incipient interest may claim that the patent inures to his benefit by an ex post facto operation, and receive the same protection at law that a court of equity could afford him.

4. We hold that, on another ground, the instruction was clearly proper.

Here, the after-acquired naked fee is set up to defeat Fosgit's deed, made forty years ago in good faith, for a full consideration, and to oust the possession of Spencer's heirs, holding under that deed. The rule has always been, that where there was a warranty or covenants for title, that would cause circuity of action if the vendee was evicted by the vendor, then the deed worked an estoppel. But the rule has been carried further, and is now established, that where the grantor sets forth on the face of his conveyance, by averment or recital, that he is seized of a particular estate in the premises, and which estate the deed purports to convey, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was seized and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after-acquired title, as between parties and privies. Van Rensselaer v. Kearney, 11 How., 325; Landes v. Brant, 10 How., 374.

It follows that the heir of Fosgit is estopped by her father's deed from disturbing the title or possession of Spencer's heirs.

It is ordered that the judgment of the Circuit Court be affirmed.


text: Talk:Lessee of French v. Spencer/Opinion of the Court


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Smith v. Orton

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

It was before this court at a prior term, and is reported in 18 Howard, 263. It is proper to remark that the bill, in this case, set forth that the controversy in the State court, which was referred to in 18 Howard, had become terminated.

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

It was argued by Mr. Doolittle for the appellant, upon which side there was also a brief by Mr. Brown, and by Mr. Gillet for the appellee, upon which side there was also a brief by Mr. Mariner.

Mr. Justice CATRON delivered the opinion of the court.

title: Smith v. Orton


text: Talk:Smith v. Orton

title: Talk:Smith v. Orton


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Smith v. Orton/Opinion of the Court

The bill was demurred to, and the demurrer sustained below, and the facts appear only on the face of the bill. Davis held the legal title to the two lots (Nos. 7 and 8) in dispute, lying in or near the city of Milwaukee, in the State of Wisconsin. Davis held the legal title as trustee for Otis Hubbard. In June, 1851, Hubbard, for a good and valuable consideration, conveyed the premises to Joachim Gruenhagin, by a deed in fee, by which the grantee became seized of the entire interest of Hubbard. In December, 1852, Gruenhagin, for a good and valid consideration, conveyed the premises to James S. Brown; and in January, 1853, Brown, for a valuable consideration, conveyed to the complainant, Smith. The complainant afterwards also got deeds from Davis and Knab.

Hubbard had sold two other lots in Milwaukee to one Schram, the title to which was outstanding in the names of persons residing beyond the State of Wisconsin. Schram required security for the title from Hubbard.

Butler, a relation of Hubbard, got Knab to give a bond for title, binding himself jointly with Butler, as security to Schram.

To secure himself against loss for his undertaking to Schram, Knab required of Hubbard security to indemnify him, should Hubbard be unable to make a title to the lots sold to Schram; and Hubbard got Davis, who held the legal title to the lots, to convey them to Knab as security, and for no other consideration.

On the same day (22d of July, 1848) that the title bond to Schram was made, Knab executed to Butler a bond covenanting that if Butler would procure the deed from the trustees of Hubbard, and comply with the bond to Schram, he (Knab) would convey the lots to Butler, for which he held Davis's deed; Butler failed to procure the deed, and Hubbard did so himself.

In March, 1851, Butler assigned Knab's bond to Orton, the respondent.

Hubbard never received any consideration whatever for the lots thus transferred; and it is alleged that the bond from Knab to Butler was a secret and fraudulent contrivance on the part of Butler, to cheat Hubbard and obtain his property, and that he was defrauded thereby.

Smith obtained a deed for the lots from Davis, and also one from Knab; but as Davis had no interest, having long previously conveyed to Knab, nothing passed by his deed, unless, as is assumed by the bill, an equity of redemption resulted to Davis.

And, as Orton had filed a bill in a State court against Knab, which was pending when Smith took his deed from Knab, and as Knab was not allowed to disavow his own bond, Orton got a decree against Knab for a conveyance of the legal title, (which conveyance was regularly made,) and therefore the deed from Knab to Smith was of no value. Having been made whilst the suit was pending, it could only have any useful effect on the contingency of Knab's successful defence.

Orton having succeeded, his decree related to the commencement of the suit, and gave him the elder and better legal title, Smith's deed being 'subservient to the rights of the parties in litigation.' (1 Story's Com. Eq., S. 406.)

Orton has the legal title, beyond dispute. Smith is asserting Hubbard's equity and Davis's right of redemption; and prays by his bill, among other things, 'that Orton be decreed to release to him (Smith) all claim or interest in said lots.'

Neither party has, or ever had, actual possession of the premises; nor is this of any consequence, as the contest is for the legal title.

Butler certainly had neither a legal nor equitable interest in the property when he sold to Orton. He held Knab's title bond, with full knowledge that Knab held as trustee for Hubbard. And this bond was assigned to Orton, who, according to the allegations of the bill, took it with Hubbard's equity inhering to it.

What effect Orton's decree against Knab may have to protect Orton under the legal title, on a plea of bona fide purchaser of an equity, we decline to decide; nor will we discuss the question, as this cause may again come before this court, and involve that question.

The remaining question for consideration is, whether Smith can be heard in a court of equity, being an assignee of an equitable interest in contestation.

Gruenhagin purchased and took a deed for Hubbard's equity, and was clothed with his interest before any litigation was instituted affecting the title. And as neither Gruenhagin, Brown, nor Smith, were parties to the suit of Orton against Knab, the decree against Knab did not in any wise impair the equity obtained from Hubbard, who likewise was no party to that suit, and who had conveyed to Gruenhagin before it was commenced.

Hubbard's equitable title being distinct from the legal title in controversy between Orton and Knab, no reason existed why it should not be the subject of a bona fide sale, and transfer by deed, in like manner that a mortgagor's equity may be sold and conveyed. After a mortgage debt is discharged, the mortgagor or his assignee may compel the mortgagee or his assignee to surrender the legal title. And that is substantially the case the bill makes; for after Hubbard satisfied Schram's bond made for title by Knab and Butler, Knab held the naked legal title, with an undoubted right in Hubbard to call for its surrender. And his assignee stands on the same footing. (4 Kent's Com., 157.) And so the statutes of Wisconsin in effect provide. (Revised Statutes of 1849, ch. 59, sec. 7; ch. 77, secs. 6 and 7.)

We are of the opinion that the court below erred in sustaining the demurrer to the bill, and order the decree to be reversed, and remand the cause, with directions that the District Court proceed in it according to the 34th rule of this court, governing chancery proceedings.

title: Smith v. Orton/Opinion of the Court


text: Talk:Smith v. Orton/Opinion of the Court


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Allen v. Newberry

THIS was an appeal from the District Court of the United States for the district of Wisconsin, sitting in admiralty.

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

It was argued by Mr. Haven for the appellants, and by Mr. Russell for the appellee.

The question of jurisdiction was not discussed in the argument, and it is not necessary to report the arguments upon the merits.

Mr. Justice NELSON delivered the opinion of the court.

title: Allen v. Newberry


text: Talk:Allen v. Newberry

title: Talk:Allen v. Newberry


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Allen v. Newberry/Opinion of the Court

This is an appeal in admiralty from a decree of the District Court for the district of Wisconsin.

The libel states that the goods in question were shipped on board the Fashion at the port of Two Rivers, in the State of Wisconsin, to be delivered at the port of Milwaukee, in the same State, and that the master, by reason of negligence and the unskilful navigation of the vessel, and of her unseaworthiness, lost them in the course of the voyage.

The respondent sets up, in the answer, the seaworthiness of the vessel, and that the goods were jettisoned in a storm upon the lake.

The evidence taken in the court below was directed principally to these two grounds of defence; but, in the view the court has taken of the case, it will not be important to notice it.

The act of Congress of 26th February, 1845, prescribing and regulating the jurisdiction of the Federal courts in admiralty upon the lakes, and which was held by this court in the case of the Genesee Chief, (12 How., 443,) to be valid and binding, confines that jurisdiction to 'matters of contract and tort, arising in, upon, or concerning steamboats and other vessels' * *  * 'employed in business of commerce and navigation between ports and places in different States and Territories upon the lakes, and navigable waters connecting said lakes,' &c.

This restriction of the jurisdiction to business carried on between ports and places in different States was doubtless suggested by the limitation in the Constitution of the power in Congress to regulate commerce. The words are: 'Congress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes.' In the case of Gibbon v. Ogden, (9 Wh., 194,) it was held, that this power did not extend to the purely internal commerce of a State. Chief Justice Marshall, in delivering the opinion of the court in that case, observed: 'It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a State, or between parts of the same State, and which does not extend to or affect other States.' Again, he observes: 'The genius and character of the whole Government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, when they do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the Government. The completely internal commerce of a State, then, he observes, may be considered as reserved for the State itself.' (Ib., 195.)

This distinction in the act of 1845 is noticed by the present Chief Justice in delivering the opinion in the Genesee Chief. He observed: 'The act of 1845 extends only to such vessels when they are engaged in commerce between the States and Territories. It does not apply to vessels engaged in the domestic commerce of a State.'

This restriction of the admiralty jurisdiction was asserted in the case of the New Jersey Steam Navigation Company v. The Merchants' Bank, (6 How., 392,) the first case in which the jurisdiction was upheld by this court upon a contract of affreightment.

It was then remarked, that 'the exclusive jurisdiction of the court in admiralty cases was conferred on the National Government, as closely connected with the grant of the commercial power. It is a maritime court, instituted for the purpose of administering the law of the seas. There seems to be ground, therefore, for restraining its jurisdiction, in some measure, within the limit of the grant of the commercial power, which would confine it, in cases of contract, to those concerning the navigation and trade of the country upon the high seas, &c., with foreign countries and among the several States.

'Contracts growing out of the purely internal commerce of the State, &c., are generally domestic in their origin and operation, and could scarcely have been intended to be drawn within the cognizance of the Federal courts.'

The contract of shipment in this case was for the transportation of the goods from the port of Two Rivers to the port of Milwaukee, both in the State of Wisconsin; and upon the principles above stated, the objection to the jurisdiction of the court below would be quite clear, were it not for the circumstance that the vessel at the time of this shipment was engaged in a voyage to Chicago, a port in another State. She was a general ship, with an assorted cargo, engaged in a general carrying business between ports of different States; and there is some ground for saying, upon the words of the act of 1845, that the contracts over which the jurisdiction is conferred, are contracts of shipment with a vessel engaged in the business of commerce between the ports of different States. But the court is of opinion that this is not the true construction and import of the act. On the contrary, that the contracts mentioned relate to the goods carried as well as to the vessel, and that the shipment must be made between ports of different States.

This view of the act harmonizes with the limitation of the jurisdiction as expressed, independently of any act of Congress, in the case of New Jersey Steam Navigation Company v. The Merchant's Bank, before referred to.

We confine our opinion upon the question of jurisdiction to the case before us, namely, to the suit upon the contract of shipment of goods between ports and places of the same State.

The court is of opinion that the District Court had no jurisdiction over it in admiralty, and that the jurisdiction belonged to the courts of the State.

It may be, that in respect to a vessel like the present, having carge on board to be carried between ports of the same State, as well as between ports of different States, in cases of sale or bottomry of a cargo for relief of the vessel in distress, of voluntary stranding of the ship, jettison, and the like, where contribution and general average arise, that the Federal courts shall be obliged to deal incidentally with the subject, the question being influenced by the common peril in which all parties in interest are concerned, and to which ship, freight, and cargo, as the case may be, are liable to contribute their share of the loss.

A small part of the goods in question in this case were shipped for the port of Chicago, but are not of sufficient value to warrant an appeal to this court.

The decree of the court below dismissing the libel affirmed.

Mr. Justice WAYNE, Mr. Justice CATRON, and Mr. Justice GRIER, dissented.

Mr. Justice DANIEL concurs in the decree for the dismission of the libel in this case, but not for the reasons assigned by the court.

It being my opinion, as repeatedly declared, that the admiralty jurisdiction, under the Constitution of the United States, is limited to the high seas, and does not extend to the internal waters of the United States, whether extending to different States or comprised within single States. If there be any inefficiency in this view of the admiralty powers of the Government, the fault is chargeable on the Constitution, and on the want of foresight in those who framed that instrument, and it can be legitimately remedied by an amendment of the Constitution only.

title: Allen v. Newberry/Opinion of the Court


text: Talk:Allen v. Newberry/Opinion of the Court


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Maguire v. Card

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

It was a case in admiralty, which arose in this way:

C. K. & William Garrison supplied the steamer Goliah with coal, and then assigned the claim to Card. The lien held by the Garrisons was created by the local law of California, (sec. 317, p. 576, Compiled Laws.) The claimant excepted to the libel, on the ground that the libellant was but the assignee of those with whom the contract was made by the master of the vessel, and that he had no lien. The District Court overruled this exception, and gave judgment in favor of the libellant; and this judgment was affirmed by the Circuit Court, on appeal. The vessel was engaged in trade exclusively within the State of California.

It was argued in this court by Mr. Blair for the appellant, and Mr. Doyle for the appellee.

Mr. Blair contended that an assignee had no right to sue under the statute, and that the court below had no jurisdiction, because the assignee had no maritime contract with the ship.

Mr. Doyle stated the questions to be—

1. Had Garrison & Co. a lien, or jus in re, on the boat?

2. Was that a lien capable of being assigned?

The precise question of jurisdiction, as decided by this court, was not argued by the counsel on either side.

Mr. Justice NELSON delivered the opinion of the court.

title: Maguire v. Card