text:
Lansdale v. Smith/Opinion of the Court

It has been a recognized doctrine of courts in equity, from the very beginning of their jurisdiction, to withhold relief from those who have delayed for an unreasonable length of time in asserting their claims. Elmendorf v. Taylor, 10 Wheat. 168; Piatt v. Vattier, 9 Pet. 416; Maxwell v. Kennedy, 8 How. 222; Badger v. Badger, 2 Wall. 94; Cholmondeley v. Clinton, 2 Jac. & W. 114; 2 Story, Eq. Jur. § 1520. In Wagner v. Baird, 7 How. 259, it was said that long acquiescence and laches by parties out of possession are productive of much hardship and injustice to others, and is not to be excused except by showing some actual hindrance or impediment, caused by the fraud or concealment of the party in possession. The case must be one which appeals to the conscience of the chancellor.

And, contrary to the view pressed in argument, a defense grounded upon the staleness of the claim asserted, or upon the gross laches of the party asserting it, may be made by demurrer, not, necessarily, by plea or answer. A different rule has been announced by some authors, and in some adjudged cases; generally, however, upon the authority of Earl of Deloraine v. Browne, 3 Brown, Ch. 633. Lord THURLOW, who decided that case, is reported to have declared, when overruling a demurrer to a bill charging fraudulent representations as to the value of an estate, and praying an account of rents, profits, etc., that his action was based upon the ground that length of time, proprio jure, was no reason for a demurrer; that it was only a conclusion from facts, showing acquiescence, and was not matter of law; and that he could not allow a party to avail himself of an inference from facts on a demurrer. But in Hovenden v. Lord Annesley, 2 Schoales & L. 637, decided in 1806, Rord REDESDALE expressed his disapproval of the decision of Lord THURLOW, as reported by Brown, and said that it was rendered in a hurry, when the latter was about to surrender the seals, and when much injury might have been done to parties had judgments not been given before the latter retired from office. The rule, as announced in Hovenden v. Lord Annesley, was, 'that when a party does not by his bill bring himself within the rule of the court, the other party may by demurrer demand judgment, whether he ought to be compelled to answer. If the case of the plaintiff, as stated in the bill, will not entitle him to a decree, the judgment of the court may be required by demurrer, whether the defendant ought to be compelled to answer the bill.' That, the court said, was matter of the law of a court of equity, to be determined according to its rules and principles.

Such is, undoubtedly, the established doctrine of this court as announced in many cases. In Maxwell v. Kennedy, supra, the court, speaking by Chief Justice TANEY, approved the rule as announced by Lord REDESDALE. After referring to Piatt v. Vattier, supra, and to McKnight v. Taylor, 1 How. 168, and Bowman v. Wathen, Id. 189, it was said that 'the proper rule of pleading would seem to be that when the case stated by the bill appears to be one in which a court of equity will refuse its aid, the defendant should be permitted to resist it by demurrer. And as the laches of the complainant in asserting his claim is a bar in equity, if that objection is apparent on the bill itself, there can be no good reason for requiring a plea or answer to bring it to the notice of the court.' In the more recent case of Badger v. Badger, supra, the court, speaking by Mr. Justice GRIER, said that a party, who makes an appeal to the conscience of the chancellor, 'should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim; how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance; and how and when he first came to a knowledge of the matters alleged in his bill; otherwise the chancellor may justly refuse to consider his case, on his own showing, without inquiry whether there is a demurrer or formal plea of the statute of limitations contained in the answer.' Rhode Island v. Massachusetts, 15 Pet. 233.

These principles are decisive of the case before us.

By duly-recorded deed of July 18, 1818, signed by John P. Van Ness (his wife uniting in the conveyance) and by Noah Stinchcomb, the former conveyed to the latter, at a fixed annual rent, lot 3, square 455, in the city of Washington, to have and to hold, etc., unto Stinchcomb, his executors, administrators, and assigns, for the term of 90 years, renewable forever. Stinchcomb entered under the deed, made valuable improvements upon the lot, and remained in possession until the year 1833 or 1834, when Van Ness repossessed himself of the premises, in virtue of a clause in the deed in these words:

'Provided, always, that if the said rent or any part thereof     shall be in arrear and unpaid for the space of 30 days next      after the time at which the same is reserved to be paid, as      above, being first lawfully demanded, that then it shall and      may be lawful to and for the said John, his heirs and      assigns, into the demised premises or any part thereof, in      the name of the whole, to reenter, and the same to have      again, repossess, occupy, and enjoy, as in his or their      former estate, until all such arrearages of rent, with legal      interest from the time at which said rent shall have become      payable, and all and every cost, charge, and expense incurred      by reason of the non-payment of said rent shall be lawfully      satisfied and paid, or make distress therefor, at his or      their option.'

Stinchomb died on the eleventh day of February, 1841, without, so far as the bill discloses, making any effort to repossess himself of the property. Van Ness died in 184_, and, upon the division of his estate, the lot in question was assigned to Matilda E. Van Ness, one of his heirs at law, by whom it was subsequently conveyed to William G. Deal and others. The present defendants hold the premises by virtue of the before-mentioned assignment and the deed of Matilda E. Van Ness and her assigns. The complainant, as administrator of Stinchcomb, having offered, and now offering, to pay all rents, interest, charges, and costs, which may have accrued upon the property, asks a decree permitting her to redeem the same, and ordering an account which will show, as well the principal and interest of rents in arrear due defendants, as the rents and profits received by the latter since they entered into possession, setting off the one against the other. Such is, substantially, the case made by the bill; and such is the relief asked, notwithstanding suit was delayed until after the expiration of about 45 years from the re-entry of Van Ness, 'as in his * *  * former estate,' and until more than 30 years had elapsed after his death and the assignment of the lot in question to one of his heirs at law.

The case is plainly one of gross laches on the part of Stinchcomb and those claiming under him. His right under the deed of 1818, to repossess himself of the premises by paying rents and charges in arrear, accrued the moment Van Ness re-entered in 1833 or 1834. But this right could not last forever. Its assertion could not be safely neglected for an unreasonable length of time. The bill discloses no plausible, much less sufficient, explanation of the long delay ensuing, after 1833, without any movement upon the part of Stinchcomb, his representatives or heirs, to recover the property, by discharging the rents and charges in arrear, and re-entering, as might have been done, in pursuance of the provisions of the deed of 1818. On the contrary, the facts set out in the bill justifies the conclusion either that Stinchcomb elected, in his life-time, to abandon all claim upon the property and leave Van Ness in possession, as in his former estate, or that his claim was, in some way satisfactorily arranged or discharged. The complainant and those whom she represents have slept too long upon their rights. The peace of society and the security of property demand that the presumption of right, arising from a great lapse of time without the assertion of an adverse claim should not be disturbed. In such cases, sound discretion requires that the court should withhold relief.

Some reference has been made to the decisions of the supreme court of Maryland, the laws of which state, as they existed on the twenty-seventh day of February, 1801, except as since modified or repealed by congress, continue in force in this district. It is only necessary to say that the principles to which we have referred have been steadily upheld by the supreme court of Maryland, not upon the ground of any changes in the law of that state since 1801, but in deference to the established doctrines governing courts of equity in giving relief to those who seek the enforcement of antiquated demands. Hepburn's Case, 3 Bland, Ch. 110; Hawkins v. Chapman, 26 Md. 100; Nelson v. Hagerstown Bank, 27 Md. 74; Syester v. Brewer, Id. 319; Frazier v. Gelston, 35 Md. 314.

For the reasons given, we are of opinion that the court below properly sustained the demurrer, and dismissed the bill for want of equity. The decree is affirmed.

title: Lansdale v. Smith/Opinion of the Court


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

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


text:
King v. Cornell

''Wm. M. Evarts, C. F. Southmayd, and Jos. H. Choate'', for appellant.

Samuel H. Wilcox, for appellees.

WAITE, C. J.

title: King v. Cornell


text: Talk:King v. Cornell

title: Talk:King v. Cornell


text:
King v. Cornell/Opinion of the Court

This is a suit begun in the supreme court of New York by a citizen of that state against other citizens of the same state and Henry Seymour King, an alien, and a subject of the queen of the united kingdom of Great Britain and Ireland. King, the alien, claiming that there could be a final determination of the controversy, so far as it concerned him, without the presence of the other defendants as parties in the cause, filed in the state court his petition for a removal to the circuit court of the United States. In the circuit court a motion was made to remand the cause, which was granted, and, from an order to that effect, this appeal has been taken. It is conceded that the case was not removed under the second section of the act of March 3, 1875, c. 137, (1 Supp. Rev. St. 174), and that the jurisdiction of the circuit court rests solely on the second subdivision of section 639 of the Revised Statutes. It was said at the last term, in Hyde v. Ruble, 104 U.S. 407, that this subdivision was repealed by the act of 1785; but as that was a case between citizens of different states, and no question arose as to the right of alien defendants to a removal when there could be a final determination of the controversy, so far as it concerned them, without the presence of the other defendants, we have now considered the matter in that aspect. While repeals by implication are not favored, it is well settled that where two acts are not in all respects repugnant, if the later act covers the whole subject of the earlier, and embraces new provisions which plainly show that the last was intended as a substitute for the first, it will operate as a repeal. This subject was fully considered in U.S. v. Tynen, 11 Wall. 92, where the early authorities are cited and reviewed at considerable length. This rule, we think, is decisive of the present case. Section 639, in its first subdivision, provided for a removal by the defendant, where the suit is against an alien, or is by a citizen of the state in which the suit is brought against a citizen of another state. The petition for removal was to be filed by the defendant at the time of entering his appearance in the state court. This is a reproduction of the provisions of section 12 of the judiciary act of 1789, c. 20, (1 St. 79.)

The second subdivision related to suits against an alien and a citizen of the state in which the suit was brought, and to suits by citizens of such state against a citizen of the same and a citizen of another state. In such suits the defendant, who was an alien, or a citizen of another state, might have a removal, if the suit, so far as it related to him, was brought for the purpose of restraining or enjoining him, or was one where there could be a final determination of the controversy, so far as it concerned him, without the presence of the other defendants as parties in the cause. The petition for such a removal could be filed at any time before trial or final hearing, and the removal did not take away or prejudice the right of the plaintiff to proceed at the same time with the suit in the state court, as against the other defendants. This subdivision is a substantial reproduction of the act of July 27, 1866, c. 288, (14 St. 306.) The act of 1866 was amended by the act of March 2, 1867, c. 196, (14 St. 558,) so that in a suit between a citizen of the state in which the suit was brought and a citizen of another state, the citizen of the other state, whether plaintiff or defendant, might obtain a removal if he had reason to and did believe that from prejudice or local influence he would not be able to obtain justice in the state court. Here, too, the petition for removal could be filed at any time before trial or final hearing. This act of 1867 appears as the third subdivision of section 639.

The twelfth section of the act of 1789 remained in force, without amendment or material alteration, except by the acts of 1866 and 1867, until the revision of the statutes in 1873. Then the whole legislation was embodied in section 639 of the Revised Statutes, which was subdivided so as to present the different grounds of removal, depending on citizenship, separately.

In this condition of the law, only aliens and citizens of states other than that in which the suit was brought could obtain a removal in any case. Save in cases of local prejudice, only defendants could petition, and in cases of local prejudice no provision was made for aliens. No provision was made in any law for the removal of cases arising under the constitution or laws of the United States, if the necessary citizenship of the parties did not exist. In 1875 the subject of removals seems to have been brought specially to the attention of congress, and the act of that year passed. Many important new provisions were introduced, and the new act was evidently intended as a substitute for much that had been enacted before. Removals of suits arising under the constitution and laws of the United States were authorized without regard to the citizenship of the parties, and instead of confining the privileges of removal to defendants or citizens of states other than that in which the suit was brought, either party was allowed to move in that behalf. Instead of requiring the petition for removal to be filed in some cases when the defendant entered his appearance, and in others at any time before trial or final hearing, all petitions to which that act applied were to be presented at or before the term at which the cause could be first tried. Provisions for citizens and subjects of foreign states must have been in the mind of congress at the time, because in the first clause of the second section, which relates to the removal of a controversy that is not separable, they are specially named. In the second clause, which relates to separable controversies, they are not, and, as in the localprejudice subdivision of section 639, that privilege is confined to citizens of the United States.

In the law of 1866 an alien defendant, having a separable controversy, could remove. When that law was extended in 1867 to cases of local prejudice, only citizens were included in the extension.

In the act of 1875 the removal in cases of separable controversies was not confined to defendants, but either party could apply. Congress then, as it seems to us, manifested its intention to exclude aliens from the privileges of such a removal, just as it did in 1867, in cases of local prejudice. The whole subject was evidently up for consideration. The first and second subdivisions of section 639 were thoroughly revised and radically modified. There cannot be a shadow of doubt that, except as to aliens in the second subdivision, both these subdivisions were repealed, and we cannot believe, if congress had intended to continue in force that part of the second subdivision which allowed an alien defendant to remove a cause, so far as it related to him, and gave his adversary no corresponding right, it would have been left to inference alone. So thorough a revision implies, as we think, an intention to make the new law a substitute for all that those subdivisions contained. The last clause relating to separate controversies needed only the addition of the word 'alien' to make it cover everything in the second subdivision. Had it been added, the law would have been uniform, and allowed removals by both parties in all cases where the right was dependant on citizenship. With it out, if we hold that the old law is unrepealed, an alien defendant will be allowed to remove his separate controversy as against a citizen, while the citizen will not have the same privilege against him. This, we are satisfied, it was not the intention of congress to do. It follows that the whole of the second subdivision of section 639 was repealed by the act of 1875, and that the cause was not removable on the separate petition of the alien. This makes it unnecessary to consider whether there was in the suit such a separate controversy as would have entitled him to a removal if the law had been otherwise.

The order of the circuit court remanding the cause to the state court is affirmed.

title: King v. Cornell/Opinion of the Court


text: Talk:King v. Cornell/Opinion of the Court


text:
Hemingway v. Stansell

GRAY, J.

title: Hemingway v. Stansell


text: Talk:Hemingway v. Stansell

title: Talk:Hemingway v. Stansell


text:
Hemingway v. Stansell/Opinion of the Court

This is an appeal by 'William L. Hemingway, treasurer of the state of Mississippi, and Sylvester Gwinn, auditor of said state, and ex officio the levee board of Mississippi, district No. 1,' from a final decree of the district court of the United States for the northern district of Mississippi upon a bill in equity for the specific performance of a contract, filed in that court on the twenty-third of February, 1873, by Hiram A. Partee, a citizen of Tennessee, and Jephthah W. Stansell, a citizen of Arkansas, copartners under the name of Partee & Stansell, (of whom the appellee is the survivor,) against the levee board of Mississippi, district No. 1, and the five persons constituting that board. By an act of the legislature of the state of Mississippi of March 17, 1871, entitled 'An act to redeem and protect from overflow from the river Mississippi certain bottom lands herein described,' this board, consisting of commissioners to be appointed by the supervisors of Tunica and four other counties respectively, was incorporated for the purpose of constructing, repairing, and maintaining levees along a part of the Mississippi river. Its domicile was fixed at the county seat of Tunica county, in the northern district of Mississippi, and it was authorized to appoint a secretary and treasurer, and to let out and contract for the construction of the works, and to issue negotiable bonds to the amount of $1,000,000, and to sell and negotiate them in any market, but not at a greater rate of discount than 10 per cent.

This suit was brought upon a contract made by the board with the plaintiffs for the construction of certain levees. While it was pending, on the eleventh of April, 1876, the legislature of Mississippi passed an act entitled 'An act to abolish the levee board of district No. 1, and to pay the debts of said board;' and enacting that the offices of commissioners, secretary, and treasurer of levee district No. 1, as existing under the statute of 1871, be abolished, and that the auditor of public accounts and the treasurer of the state be constituted and appointed the levee board of district No. 1, ex officio, and discharge all the duties of the levee board, and of the secretary and treasurer of the same; 'it being the intent and purpose of this act to substitute the auditor of the state and the treasurer thereof, ex officio, as such commissioners, secretary, and treasurer, in place and stead of the board of levee commissioners, secretary, and treasurer of levee district No. 1, now in office;' and that 'the auditor and treasurer shall have full power to settle up, under the laws now in force, the unfinished business of the said levee board of district No. 1, and to pay any outstanding liabilities of the same in such funds as may be applicable to the same.' The defendant thereupon moved to dismiss the bill, because by this statute the levee board had been abolished, and was no longer capable of suing or being sued. The court overruled this motion, and allowed the plaintiffs to file a bill of revivor against the auditor and treasurer, (both of whom resided at Jackson, in the southern district of Mississippi,) as constituting the levee board of district No. 1, and, after due pleadings and proofs, entered the final decree against the levee board, from which this appeal is taken. The appellee now moves to dismiss the appeal, because it is the appeal of Hemingway and Gwinn only, and not of the levee board. But we are of opinion that this motion, and the motion made in the court below to dismiss the bill, are equally groundless.

The statute of 1876, while it abolished the offices of the commissioners who previously constituted the corporation of the levee board, did not dissolve or extinguish the corporation, but merely substituted the state treasurer and the auditor of accounts as the members of that corporation. The suit might, therefore, be prosecuted against the levee board as a corporation, notwithstanding the change in its members; and a bill of revivor having been allowed to be filed for that purpose, it need not be considered whether any revivor is requisite. The fact that the new members reside in another district is immaterial. A court which has once acquired jurisdiction of a suit does not lose it by a change of domicile of the parties, and may, when the suit is of a nature that survives, bring in the representatives or successors of a party who has died or ceased to exist, without regard to their domicile.

The levee board, being the defendant in the suit, might appeal from the final decree; and the appeal taken by Hemingway and Gwinn, describing themselves not only by their individual names, and as treasurer and auditor respectively, but also as ex officio the levee board, is the appeal of the board. It follows that the motion to dismiss the bill because of the passage of the statute of 1876 was rightly denied by the court below, and that the motion to dismiss the appeal must be overruled by this court. The evidence shows that the board, under the authority conferred by its act of incorporation, advertised for written bids for contracts to do the work; that the plaintiffs made a bid accordingly for the work on certain parts of the levees at specified prices by the cubic yard, payable in bonds at 90 cents to the dollar, or 10 per cent. discount; that this bid was accepted by the board, and on the twenty-eighth of September, 1871, a contract in writing was signed by the parties, by which the plaintiffs agreed to do the work according to the specifications, and to the satisfaction and acceptance of the chief engineer of the board. The board agreed to pay them in bonds the prices named in the bid,-four-fifths on monthly estimates by its engineer of the relative value of the work done, and the rest on the final completion of the work, the engineer's acceptance thereof, and estimate of the quantity, character, and value of the work done, and the plaintiffs' release, under seal, of all demands arising under the contract; and it was mutually agreed that the decision of the chief engineer should be final and conclusive in any dispute which might arise between the parties to this contract. It further appears that afterwards, and to carry out the intention of the parties at the time of signing the contract, the board, at the plaintiffs' request, caused to be interlined therein, after the word 'bonds,' the words 'at the rate of 90 cents on the dollar,' and that monthly, during the progress of the work, four-fifths of the engineer's estimates of the amount of work done were paid for, at the prices stipulated in the contract, in bonds at that rate.

The board, in its answer and by a cross-bill, contended that the plaintiffs had been largely overpaid, because the prices agreed on greatly exceeded the prices at which the work could be done, and was done by subcontractors, for cash; and because the issue of bonds at 90 cents on the dollar in payment of those prices was in effect a negotiation of the bonds at a greater rate of discount than 10 per cent. But the board had authority to make contracts, and consequently to agree upon the compensation for the work. Being authorized to issue bonds, it might issue them directly to the plaintiffs; and the prices agreed to be paid, as well as the rate at which the bonds should be taken, corresponded to the original bid made by the plaintiffs and accepted by the board, as well as to the terms deliberately adopted in the formal contract. The suggestion that this course was pursued with the purpose of fraudulently evading the restriction of the statute is unsupported by proof; and there is no evidence that the funds necessary to repair the levees could have been obtained in any other manner. This position of the levee board, therefore, cannot be maintained, and to that extent the decree of the district court must be affirmed.

But the remaining question in the case presents greater difficulties. The facts, as disclosed by the record, appear to us to be as follows: After the plaintiffs had completed the work, W. R. Kirkpatrick, the chief engineer of the board, who had superintended the work, made a final estimate of its quantity, character, and value. The board, being dissatisfied with his estimate, discharged him, and caused the work to be remeasured by B. Mickle, a special engineer, (afterwards appointed chief engineer,) whose estimate showed a much smaller sum to be due to the plaintiffs. The board thereupon refused to pay the amount due according to Kirkpatrick's estimates, and, after some controversy and negotiation, settled the claim by paying the plaintiffs $47,800, the amount found due by Mickle, and the plaintiffs signed and gave them a receipt in these terms: 'Memphis, June 18, 1872. Received of A. R. Howe, Treasurer Mississippi Levee Board District No. 1, $47,800, on account of work on levee, the same being in full of all demands to date.' The plaintiffs in their bill allege that this receipt was fraudulently and oppressively extorted by the levee board, and was signed by the plaintiffs under protest. But the only evidence to support their allegation is the testimony of Stansell himself, and he on cross-examination admitted that he did not know much about the matter, as Partee attended to the money transactions of the firm; and his testimony is met and controlled by the explicit denial in the answer of the board upon the oath of two of its members, as well as by the recitals of an agreement under seal, made between the board of the first part and the plaintiffs of the second part on the fourth of October, 1872, the important portions of which are as follows:

'Whereas, said party of the first part have heretofore made     full and complete settlement for all work done on said levee      by said party of the second part, as evidenced by their      receipt acknowledging the same; and said party of the second      part do now come forward and complain that injustice was done      them in said settlement; and it being the desire of the party      of the first part to do full justice to all men,-it is hereby      agreed that the party of the second part shall designate an      engineer, who shall proceed with the chief engineer of this      board to measure all work done by said party of the second      part on said levee, and render to the parties to this      agreement an estimate of the amount due to the party of the      second part for such work, according to the contracts entered      into for the completion of the same. And it is further agreed     that, should said estimate exceed the estimate made by the special engineer of this board in the month of      June, 1872, the party of the first part shall pay to said      Partee & Stansell, party of the second part, the amount of      such excess, and all the expenses of this measurement shall      be borne by the board. But if the said estimate shall be less     than the estimate of the said special engineer in June, 1872,      then said party of the second part shall refund to said party      of the first part the amount of such deficit, and pay all the      expenses of this measurement.' 'It is further agreed that the      party of the second part shall designate an engineer, which      engineer shall suggest a third engineer, who shall be      acceptable to the chief engineer of this board, and the said      engineers so selected shall, with the chief engineer of this      board, constitute a board of arbitrament for the adjustment      of all questions of difference, the agreement of any two to      be final. In the adjustment of questions pertaining to this     measurement, the contractors shall have the privilege of      introducting all proper evidence, oral or written, of notes,      profiles, or other evidence; which testimony may be rebutted      by the president of the board,-this testimony being allowed      to give the engineer information as to the fills or any other      fact not perceptible to the engineers; to which testimony the      engineers shall give such weight as they may think the same      entitled to receive.'

On the twelfth of December, 1872, the parties signed a further agreement, stating that Mickle on the part of the levee board, George B. Fleece on the part of the plaintiffs, and R. L. Cobb, designated by Fleece with the consent of Mickle, constitute the board of arbitrament referred to in the agreement of October 4, 1872; and establishing rules to govern that board in adjusting all matters brought before them, one of which rules was as follows:

'Inasmuch as by the terms of said agreement the first party     can only rebut the testimony introduced by the second party,      it is agreed that the said second party shall, before further      proceeding with the measurement, notify the first party in      writing what points they expect to prove and the character of      the evidence proposed, so that the said first party may be      ready with the rebutting evidence.'

On the same day, the plaintiffs gave notice in writing to the levee board that they would introduce proof before the board of arbitration upon twelve different matters, including these three:

'(4) The clause in the contract touching shrinkage, its     meaning, and the adjudication of that question by the chief      engineer of your board prior to and about simultaneous with      the signing of the original contract.' '(9) The damage done      to us by the repeated refinishing of work under orders of      your engineers.' '(11) The delay of a final estimate, of      various payments, and the damage to us arising therefrom.'

On the next day, Mickle wrote a letter to Fleece, beginning thus:

'In arranging the preliminaries to our organization as a     board of arbitrament on the question of difference between      the levee board of this district and Messrs. Partee and      Stansell, I am notified that claims will be made and      testimony offered clearly in contravention of the terms of      the agreement from which our authority is to emanate, and as      such proceeding would render our decision unsatisfactory and      void, I cannot proceed further in the matter unless it is      distinctly understood that the following provisions of the      contracts and agreements entered into by the said parties,      and on which our authority is understood to be based, shall      be strictly observed.'

He proceeded to point out that the agreement of October 4, 1872, did not permit any evidence to be introduced except in relation to the measurement of levees; and also stated the substance of the following provisions in the specifications annexed to the original contract:

'Nothing will be paid for settling, but its cost will be     included in the price paid for the levee, as estimated up to      true grade. If the levee be found deficient in height,     slopes, or base, or not to have the full settling on top and      slopes, the contractor must go over it immediately and      correct all deficiencies, when the engineer in charge will      run a test-level over it to see that all is right.' 'All      damage or injury to the work, resulting from flood or other      cause, shall be sustained by the contractor until finished      and received by the chief engineer; and no work shall be      received until fully and completely finished in accordance      with the above specifications.'

To this letter Fleece immediately replied, contending that the board of arbitrament was already organized, and declining to discuss in advance any point likely to come before it. A correspondence of six weeks ensued between Mickle and Fleece, in the course of which, after much dispute upon the question whether Cobb had been in due form accepted as one of the arbitrators, Fleece designated him anew in writing, Mickle declined to accept him, Fleece offered Mickle the choice of either of several other persons in Cobb's stead, and the correspondence ended in Mickle's insisting on the objections made in his letter of December 13, 1872, and in the plaintiffs' abandoning the arbitration.

The court below was of opinion that the receipt in full of the eighteenth of June had been wholly set aside by the agreement of the fourth of October, and that the arbitration under this agreement had failed by the fault of the defendant; and entered a decree for the plaintiffs according to the final estimate of Kirkpatrick. We cannot concur either in the reasons or in the result. In our view, the effect of the agreement of the fourth of October, 1872, was to recognize that there had been a settlement in full between the parties of the amount due from the levee board to the plaintiffs, which bound both parties as an accord and satisfaction; and to agree to open that settlement to this extent only: Three engineers, to be appointed as therein provided, should measure the work done by the plaintiffs. If their estimate should differ from the estimate of Mickle, according to which the settlement had been made, the difference should be paid by the board or refunded by the plaintiffs. The stipulation that the three engineers should 'constitute a board of arbitrament for the adjustment of all questions of difference' was necessarily limited to questions of difference in relation to the subject to be referred to them. If such measurement by the arbitrators should not modify the estimate of work done, or if the arbitration should fail without fault of the levee board, the settlement stood.

The evidence, the substance of which is above recited, satisfies us that the arbitration did not fail by any fault on the part of the levee board, but by reason of the persistent attempts of the plaintiffs, against the steady opposition of the levee board, to introduce evidence before the board of arbitrament, not limited to the question of measurement, which was the only matter to be submitted to this board, but touching other matters which had been concluded by the contracts executed and the settlement made between the parties.

The result is that the decree below must be reversed, and the case remanded with directions to enter a decree dismissing the bill.


text: Talk:Hemingway v. Stansell/Opinion of the Court


text:
Nets to Catch the Wind/Beauty

Say not of Beauty she is good, Or aught but beautiful, Or sleek to doves' wings of the wood Her wild wings of a gull.

Call her not wicked; that word's touch Consumes her like a curse; But love her not too much, too much, For that is even worse.

O, she is neither good nor bad, But innocent and wild! Enshrine her and she dies, who had The hard heart of a child.

title: Nets to Catch the Wind/Beauty


text:
Hodges v. Easton

L. S. Dixon, for plaintiffs in error.

H. M. Finch, for defendants in error.

HARLAN, J.

The foundation of this action is the alleged conversion by the plaintiffs in error, who were defendants below, of certain wheat, stored in separate bins, in the warehouse of William H. Valleau, in Decorah, Iowa. The complaint contains two counts, the first one of which proceeds upon the ground that the wheat, when so converted, was the property of the defendants in error, who were plaintiffs below. In the second count it is averred that, during the winter and spring of 1876, the First National Bank of Decorah, Iowa, discounted notes and drafts for, and loaned money to, said Valleau, upon the security of a large quantity of wheat delivered to the bank, of which he, Valleau, was then the owner and had the possession, and which was stored, in separate bins, in a warehouse in Decorah, Iowa; that thereby the wheat became the property of the bank; that subsequently, in April and May, 1876, Valleau, without repaying such loans and discounts, and without the knowledge and consent of the bank, wrongfully and tortiously took and removed the wheat from the warehouse and from the possession of the bank, shipped it to the defendants, at Milwaukee, by whom it was wrongfully and tortiously received and sold, and the proceeds converted to their own use; that no part of the moneys, so loaned and advanced, has ever been paid by Valleau, or by any one for him; that prior to this suit the bank sold, assigned, and transferred its right, title, and interest in the wheat, and all right of action to recover the same or its value, of which assignment the defendants had notice before this action; and, lastly, that prior to the commencement of the action the bank and plaintiffs had each demanded from defendants the delivery of the wheat, but they had refused to deliver it, or any part thereof, either to the bank or to plaintiffs. The answer denies, generally, 'each and every allegation, statement, matter, fact, and thing in the complaint set forth, alleged, and contained.' The record states that the jury, impaneled and sworn to try the issues, 'rendered a special verdict in answer to the questions propounded by the court.' The questions so propounded, with the answers thereto, were made the special verdict. The jury having been discharged, the plaintiffs, by counsel, moved for judgment upon the special verdict for the value of the wheat wrongfully converted by defendants, or for such damages as the court should adjudge, and for such other and further relief as might be granted in the premises. On a later day the defendants moved to set aside the special verdict and grant a new trial, upon the ground, among others, that the special verdict 'does not contain findings upon the material issues in the case.' These motions were heard together, and it was ordered by the court 'that the motion of defendants for a new trial be, and is hereby, overruled, and that the motion of the plaintiffs for judgment upon the special verdict of the jury, and facts concealed or not disputed upon the trial, be, and is hereby, granted.' The damages were assessed by the court at $12,554.89, for which sum judgment was entered against the defendants. From that judgment this writ of error is prosecuted.

Under the Code of Practice of Wisconsin the answer in this case puts in issue every material allegation in the complaint. 2 Tayl. St. Wis. 1871, p. 1439; Rev. St. Wis. 1878, § 2655. And since the practice, pleading, forms, and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts of the United States, must conform, as near as may be, to the practice, pleadings, forms, and modes of proceeding existing, at the time, in like causes in the courts of record in the state within which such circuit or district courts are held, (Rev. St. § 914,) it was incumbent upon the plaintiff-as was conceded in argument here-to prove, at the trial, among other things, that the bank had sold, assigned, and transferred all its title and interest in the wheat, and, thereby, also, its right to recover the wheat or its value. No bill of exceptions was taken showing the evidence introduced by either party, nor was there a general verdict. Having regard alone to the questions and answers propounded to the jury, it is clear that plaintiffs did not prove their case, as made by the first count, which proceeded upon the ground that the wheat was the property of the plaintiffs. no finding upon the issue, raised on finding upon the issue, raised by the second count, as to the alleged assignment by the bank to plaintiffs. No question was propounded to the jury upon that subject, nor was that point covered by the written stipulation as to the amount of freight and the value of the wheat. We infer from the oral statement of counsel for plaintiffs that, at the trial below, the assignment by the bank was conceded, and that the final judgment was based, in part, upon that concession. But in that representation, counsel who appeared in this court for defendants, but who did not participate in the trial in the circuit court,-did not feel authorized to concur. Looking, therefore, as we must, to the case as disclosed by the record, we are constrained to hold that the answers to the special questions propounded by the court, being silent as to the assignment by the bank, did not furnish a basis for judgment in behalf of plaintiffs. Without proof upon that point, plaintiffs, it is manifest, were not entitled to judgment upon the second count.

In Patterson v. U.S. 2 Wheat. 225, it was said that if it appeared to the court of original jurisdiction, or to the appellate court, that the verdict was confined to a part only of the matter in issue, no judgment could be rendered upon it. In Barnes v. Williams, 11 Wheat. 415, the claim of the plaintiff being founded upon a bequest of certain slaves, it was essential to a recovery at law that the assent of the executor to the legacy should be proved. This court, speaking by Chief Justice MARSHALL, said:

title: Hodges v. Easton


text: Talk:Hodges v. Easton

title: Talk:Hodges v. Easton


text:
Hodges v. Easton/Opinion of the Court

'Although in the opinion of the court there was sufficient     evidence in the special verdict from which the jury might      have found the fact, yet they have not found it, and the      court could not, upon a special verdict, intend it. The     special verdict was defective in stating the evidence of the      fact, instead of the fact itself. It was impossible,     therefore, that a judgment could be pronounced for the      plaintiff.'

But it is suggested that the final judgment, upon its face, shows that it was not based, exclusively, on answers to the special questions, and the stipulation by the parties as to the amount of freight and value of wheat; but, also, 'upon facts conceded or not disputed upon the trial.' Although this court is not informed by the record as to what those conceded and undisputed facts are, it is insisted that we should presume, in support of the judgment, that they were, in connection with the facts specially found, sufficient to justify the action of the court below. This position, it is contended, is sustained by numerous decisions of the supreme court of Wisconsin, upon the subject of general and special verdicts, as defined and regulated by the laws of that state in force when this action was tried.

It is not necessary, in this opinion, to enter upon an examination of those decisions, or to consider how far the local law controls in determining, either the essential requisites of a special verdict in the courts of the United States, or the conditions under which a judgment will be presumed to have been supported by facts other than those set out in a special verdict. The difficulty we have arises from other considerations. The record discloses that the defendants had a determination, by the jury, of a part of the facts, while other facts, upon which the final judgment was rested, were found, by the court, to have been conceded, or not disputed. If we should presume that there were no material facts considered by the court beyond those found in the answers to special questions, then, as we have seen, the facts found do not authorize the judgment. If, on the other hand, we should adjudge it to have been defendants' duty to preserve the evidence in a bill of exceptions, and that, in deference to the decisions of the state court, it should be presumed that the 'facts conceded or not disputed at the trial' were, in connection with the facts ascertained by the jury, ample to support the judgment, we then have a case at law which the jury was sworn to try, determined, as to certain material facts, by the court alone, without a waiver of jury trial as to such facts.

It was the province of the jury to pass upon the issues of fact, and it was the right of the defendants, secured by the constitution of the United States, to have them do so. That right could have been waived, but it could not be taken from them by the court. If, upon the trial, all the facts essential to recovery had been undisputed, or so conclusively established the cause of action as to have authorized the withdrawal of the case altogether from the jury, by a peremptory instruction to find for plaintiffs, it would still have been necessary that the jury make its verdict, albeit in conformity with the order of the court. The court could not, consistently with the constitutional right of trial by jury, submit a part of the facts to the jury, and, itself, determine the remainder without a waiver by the defendants of a verdict by the jury. In civil cases, other than those in equity and admiralty, and except where it is otherwise provided in bankruptcy proceedings, 'the trial of issues of fact'-that is, of all the material issues of fact-'in the circuit courts shall be by jury,' unless the parties, or their attorneys of record, stipulate in writing for the waiver of a jury. Rev. St. §§ 648-9. There is no such stipulation in this case, and there is nothing in the record from which such stipulation or waiver may be inferred. It has been often said by this court that the trial by jury is a fundamental guaranty of the rights and liberties of the people. Consequently, every reasonable presumption should be indulged against its waiver. For these reasons the judgment below must be reversed.

One other point discussed by counsel for defendants in error must be noticed. He insisted that the order of reversal, if one be made, should be accompanied by a direction to the court below to restrict the next trial to such issues as are not covered by the answers of the jury to special question. In support of this position we have been referred to several adjudications which seem to recognize the authority of the court, when setting aside a judgment, to restrict the subsequent trial to such issues as were not passed upon by the jury at the first trial. Whether this contention be sound or not we need not now determine, for the reason that the grounds upon which it rests have no existence, where, as here, the case, as to the issues triable by jury, was not submitted to the jury in the mode required by law. There is, then, no alternative but to reverse the judgment, with directions that a trial be had upon all the material issues of fact. It is so ordered.

title: Hodges v. Easton/Opinion of the Court


text: Talk:Hodges v. Easton/Opinion of the Court


text: Walker's Ex'rs v. United States

title: Walker's Ex'rs v. United States


text: Talk:Walker's Ex'rs v. United States

title: Talk:Walker's Ex'rs v. United States


text:
Walker's Ex'rs v. United States/Opinion of the Court

In this action, brought under the captured and abandoned property act of March 12, 1863, the present appellants seek to recover from the United States the net proceeds (alleged to be at least $600,000) of certain cotton, seized and sold by the agents of the government in the year 1865. The petition was dismissed in the court of claims, and from the judgment of dismissal this appeal has been prosecuted. The facts, as found by that court, are substantially these:

Prior to the year 1865, John Scott, the chief agent for produce loan for the confederate government in Alabama and east Mississippi, purchased in lots, at different times, and of different planters in those states, 3,405 bales of cotton, taking from the planter, on each purchase, a receipt and agreement in the following form:

'State of Mississippi, County of _____, Town or Post-office _____:

'November 27, 1862.

'The undersigned, having sold to the confederate states of America, and received the value of the same in bonds, the receipt whereof is hereby acknowledged, 135 bales of cotton, marked, numbered, and classed as in the margin, which is now deposited at _____ plantation, hereby agrees to take due care of said cotton while on his plantation, and to deliver the same, at his own expense, at _____, in the state of Mississippi, to the order of the secretary of the treasury, or his agents or their assigns.'

In each instance he delivered to the planter a certificate in the following from:

'ABERDEEN, November 27, 1862.

'The undersigned, as agent of the government, certifies that the within cotton has been examined by him or by a competent judge, and that its character will rank, according to the commercial scale, as middling; and also that the weights and marks are as described-the cotton being in good merchantable order, marked with the name of the planter, and on one end the initials C. S. A., and safely stored in a covered building.

'_____, Agent.' agreed upon is a fair market price at the present time.

'_____, Agent.'

There were 37 such certificates, upon which appeared the number, weight, and marks of the bales purchased.

The confederate government, being in need of large sums of money for its military department, and in order to pay debts incurred and to be incurred, authorized and directed Scott to sell this cotton, and all other cotton purchased by him in like manner. Accordingly, on the sixth day of April, 1865, at Mobile, Alabama, the place of his residence and business, he, as such confederate produce loan agent, sold to one O'Grady, a citizen and resident of the same place, all of the 3,405 bales of cotton, at the price of $1 per pound in confederate states currency, transferring to him the planter's receipts, as above described, and attaching to each one a certificate in the following form:

'CONFEDERATE STATES OF AMERICA,

'TREASURY DEPARTMENT, April 6, 1865.

'This is to certify that the within and above described cotton has been sold to D. O'Grady, _____ bales, and delivery is hereby ordered to be made to him, or his order, with license to export the same from the confederate states to any neutral port, on complying with the requisitions of the law.

'Given under my hand and the seal of the treasury department, on the year and day above mentioned.

'JOHN SCOTT,

'Chief Agt. Produce Loan for Ala. and East Miss.

'P'r J. G. ULRICK, Agt.'

Prior to these transactions, to-wit, on the sixth day of March, 1865, President Lincoln gave to Samuel P. Walker (whose executors are claimants in this case) an order, of which the following is a copy:

'EXECUTIVE MANSION, March 6, 1865.

'Whereas, Samuel P. Walker, of Memphis, Tennessee, claims to own products of the insurrectionary states near Grenada and Canton, Mississippi, and Montgomery and Selma, Alabama, and has arrangements with parties in the same vicinities for other products of the insurrectionary states, all which he proposes to sell and deliver to agents authorized to purchase for the United States the products of the insurrectionary states, under the act of congress of July 2, 1864, and the regulations of the secretary of the treasury, it is ordered that all such products which a purchasing agent of the government has agreed to purchase, and the said Walker has stipulated to deliver, as shown by the certificate of the purchasing agent, authorized by Regulations VIII., Form No. 1, appended to regulations attached hereto by such agent, and being transported, or in store awaiting transportation, for fulfillment of stipulations and in pursuance of the regulations of the secretary of the treasury, shall be free from seizure, detention, or forfeiture to the United States; and officers of the army and navy and civil officers of the government will observe this order, and will give the said Walker, his agents, and means of transportation, and said products, free and unmolested passage through the lines, (other than blockade lines,) and safe conduct within the lines while going for or returning with said products, or while said products are in store awaiting transportation for the purposes aforesaid.

ABRAHAM LINCOLN.'

On the twelfth day of April, 1865, the city of Mobile, which had been continuously invested from 1862, was captured by the Union forces. On that day, at Mobile, Walker, who was a resident and citizen of Memphis, Tennessee, purchased from O'Grady the 3,405 bales of cotton referred to, (and which was still in the hands of the planters under their arrangement with Scott,) taken from him a bill of sale, which was attached to a list specifying the number of bales, weight, and the names of the counties where the cotton was originally purchased from planters. The bill of sale was as follows:

'For value received of Samuel P. Walker, I hereby transfer, sell, and assign the above lots of cotton, amounting to 3,405 bales, without recourse upon me, and the holders thereof will please deliver the same to the said Walker or his authorized agent.

'April 12, 1865.

D. O'GRADY.'

At the same time O'Grady delivered and indorsed to Walker the planters' certificates, which the former had received from Scott. The cotton remained on the plantations, and the only delivery to Scott, O'Grady, or Walker was by the planters' certificates, and their transfer by indorsement, as hereinbefore stated.

On the fifth of May, 1865, by the surrender of General Taylor, commanding the confederate forces in Alabama and Mississippi, the counties in which this cotton was held passed under the military control of the General E. R. S.C.anby, commanding the Union forces at Mobile. The United States military authorities seized all the lines of railroads and steam-boats in that section, and on May 10, 1865, the following order was issued by General Canby: 'HEADQUARTERS ARMY AND DIVISION OF WEST MISSISSIPPI,

'MOBILE, ALABAMA, May 10, 1865.

'(General Field Orders, No. 39.)

'The cotton belonging to the confederate government in east Louisiana, Mississippi, Alabama, and west Florida having been surrendered to the government of the United States, its sale to private individuals, or its transfer to any persons, except the officers or agent of that government, is prohibited. This order applies to all cotton procured by subscriptions to the cotton loan, by the sale of confederate bonds or notes, by the tax in kind, or by any other process by which the title was vested in the confederate government, whether in the possession of the agents of that government or still in the hands of the producers; and all persons in whose charge it may be will be held accountable for its delivery to the agents of the United States. Commanders of districts will be furnished with a transcript from the records of the cotton agents, showing the quantity and location of the cotton within the limits of their commands, and will give the agents of the treasury department, appointed to receive it, such facilities as may be necessary to enable him to secure it.

'Any sales of this property in violation of this order will be treated as the embezzlement of public property.

'By order of Major General E. R. S.C.anby.'

On the first of June, 1865, F. W. Kellogg, agent of the United States for the purchase of cotton in insurrectionary states, entered into an agreement with Walker, of which the following is a copy:

'MOBILE, ALABAMA, June 1, 1865.

'I, Francis W. Kellogg, agent for the purchase of cotton of insurrectionary states, on behalf of the government of the United States, at Mobile, Alabama, do hereby certify that I have agreed to purchase from Samuel P. Walker, Esq., of Memphis, Tennessee, 3,500 bales of cotton, which, it is represented, are or will be stored at Green, Pickens & Marengo Co.'s, in the state of Alabama, and with planters in the counties of Lauderdale, Noxubee, Lowndes, and Monroe, in the state of Mississippi, and which he stipulates shall be delivered to me, unless prevented from so doing by the authority of the United States.

'I therefore request safe conduct for the said Samuel P. Walker and his means of transportation, and said cotton from where it is stored to Mobile, where the cotton so transported is to be sold and delivered to me, under the stipulation referred to above, and pursuant to regulations prescribed by the secretary of the treasury.

'F. W. KELLOGG,

'United States Purchasing Agent.

'Notice.-Cotton arriving at Mobile under this permit must be promptly reported to the United States purchasing agent.'

Between June 30 and December 1, 1865, 1,922 3/4 bales of this cotton (on plantations in Lowndes and other counties in Mississippi) were seized by treasury agents, (appointed by the secretary of the treasury to collect cotton which had been sold to the confederate states,) and sent to New York, where the cotton was sold, and the net proceeds covered into the United States treasury.

The territory embracing the counties in Mississippi where the cotton was stored, and where it was when seized by the treasury agents, was held and occupied by the confederates on and prior to April 12, 1865, while Mobile and Memphis, at that date, and until the close of the war, were both occupied by the Union forces.

'The negotiations for the sale of this cotton to O'Grady took place in the early part of the year 1865, and the final conveyance delayed until April 6, 1865, and finally completed on that day, by reason of the ill health of Scott, and for other reasons.'

In making sales of cotton, in that section of the country, during confederate control, the custom was to transfer the planters' certificates, as if negotiable. That was the usual, and generally the only, mode of delivery made or required.

The court of claims found, as conclusions of law, that the order of President Lincoln of March 6, 1865, was not a license or permit which authorized Walker to purchase the cotton in question in Mobile at the time and under the circumstances set forth in the findings; that Walker acquired no title as against the United States by his alleged purchase from O'Grady; and that the claimants consequently had no cause of action against the government.

Q. Corwine, John Pool, and Warner M. Bateman, for appellant.

Asst. Atty. Gen. Simons, for appellee.

HARLAN, J.

By the proclamation of the president of the United States, issued on the sixteenth day of August, 1861, in pursuance of authority given by the act of July 13, 1861, (12 St. 257,) the inhabitants of Tennessee, Alabama, Mississippi, and other states except that part of Virginia west of the Alleghany Mountains, and of such other parts of that and the other states named as might maintain a loyal adhesion to the Union, or might, from time to time, be occupied and controlled by the Union forces-were declared to be in a state of insurrection against the United States; and 'all commercial intercourse between the same and the inhabitants thereof, with the exceptions aforesaid, and the citizens of other states and other parts of the United States,' was made unlawful until the insurrection ceased or was suppressed. The fifth section of the act of July 13, 1861, upon which the proclamation was based, provided that 'the president may, in his discretion, license and permit commercial intercourse with any such part of said state or section, the inhabitants of which are so declared in a state of insurrection, in such articles, and for such time, and by such persons, as he, in his discretion, may think most conducive to the public interests, and such intercourse, so far as by him licensed, shall be conducted and carried on only in pursuance of rules and regulations prescribed by the secretary of the treasury.'

By the subsequent proclamation of April 2, 1863, the territorial exceptions made in the former proclamation were revoked, except as to West Virginia and the ports of New Orleans, Key West, Port Royal, and Beaufort.

By the fourth section of the act of July 2, 1864, the prohibitions and provisions of the act approved July 13, 1861, and of the acts amendatory thereof or supplementary thereto, were made to apply 'to all commercial intercourse by and between persons residing or being within districts within the present or future lines of national military occupation, in the states or parts of states declared in insurrection, whether with each other or with persons residing or being within districts declared in insurrection and not within those lines.'

The eighth section of the same act makes it lawful for the secretary of the treasury, with the approval of the president, to authorize agents to purchase, for the United States, any products of states declared in insurrection, at such places as shall be designated by him. And the ninth section provides:

'That so much of section five of the act of thirteenth of     July, 1861, aforesaid, as authorizes the president, in his      discretion, to license or permit commercial relations in any      state or section, the inhabitants of which are declared in a      state of insurrection, is hereby repealed, except so far as      may be necessary to authorize supplying the necessities of      loyal persons residing in insurrectionary states within the      lines of actual occupation by the military forces of the      United States, as indicated by published order of the      commanding general of the department or district so occupied;      and, also, except so far as may be necessary to authorize      persons residing within such lines to bring or send to market      in the loyal states any products which they shall have      produced with their own labor or the labor of freedmen or      others employed and paid by them, pursuant to rules relating      thereto, which may be extablished under proper authority. And     no goods, wares, or merchandise, shall be taken into a state      declared in insurrection or transported therein, except to      and from such places, and to such monthly amounts as shall      have been previously agreed upon in writing by the commanding      general of the department in which such places are situated,      and an officer designated by the secretary of the treasury      for that purpose.'

From these acts,-in force on the twelfth day of April, 1865, when Walker purchased from O'Grady,-it is quite clear that persons residing or being in Memphis, then occupied by the national forces, were forbidden, unless authorized by competent authority, to have commercial intercourse with persons residing or being in Mobile, which was at that time likewise occupied by the national forces; this, because both cities were within states the inhabitants whereof were declared to be in insurrection, and neither within the territorial exceptions made in the proclamation of President Lincoln. But it is contended that the order of President Lincoln, given on the sixth of March, 1865, fully authorized Walker to proceed from Memphis, his place of residence, to Mobile, after that city had surrendered to the Union forces, and there contract with O'Grady for the purchase of the cotton in question, then but recently the property of the confederate states, (at least as between them and the original owners,) and within the district actually occupied and controlled by the insurgent forces. A portion of the argument of counsel is addressed to the question whether, notwithstanding the repeal of the fifth section of the act of July 13, 1861, authorizing the president, in his discretion, to license or permit commercial relations in any state or section in insurrection, he could not, in virtue of his power as commander-in-chief of the army, license trade with insurgents within the lines of confederate military occupancy. If this question has not been distinctly concluded by the former decisions of this court, we deem it unnecessary now to consider or determine it. For, plainly, the order of March 6, 1865, was not a license to trade or have commercial intercourse with the enemy, without limit as to amount, or without restriction as to persons and territory. The order proceeds solely upon the ground that Walker then owned products of the insurrectionary states, near Grenada and Canton, in Mississippi, and Montgomery and Selma, in Alabama, and that he then had arrangements with parties in the vicinity of those places for other products of the insurrectionary states. It was in reference to such products-those he then owned, and those as to which he then had arrangements with other parties-that the president ordered that they should be free from seizure, detention, or forfeiture to the United States.

Now, the finding of the facts, upon which alone this court can act, shows that Walker did not, on the sixth of March, 1865, own any part of the cotton in question. It was then in the possession of the the planters, who held it for the confederate government; and if it ever was, as against the United States, after its sale to the confederate government, to be used in aid of the rebellion,-the property of O'Grady, from whom Walker purchased, it did not become so until April 5, 1865. Nor does it appear that this cotton constituted, at any time, a part of the cotton with reference to which Walker had 'arrangements' at the time President Lincoln gave the order of March 6, 1865. It is true that the court below finds that 'the negotiations for the sale of the cotton to O'Grady took place in the early part of the year 1865, and the final conveyance delayed until April 6, 1865, and finally completed on that day, by reason of the ill-health of Scott, (the confederate produce loan agent,) and for other reasons.' But the negotiations here referred to were, manifestly, not the arrangements which Walker claimed to have had on March 6, 1865, for products of the insurrectionary districts. There is nothing to show that he ever had any communication upon the subject of this cotton with the confederate produce loan agent, or with O'Grady, until after the capture of Mobile. The negotiations, which were not completed until April 6, 1865, by reason of Scott's ill-health, and 'for other reasons,' were evidently those by which Scott proposed to sell to O'Grady, and with which Walker, it must be assumed, had no connection whatever. The case, as it stands, seems to be one in which the claimants seek to bring within the operation of the order of March 6, 1865, a transaction in cotton not covered, not intended to be covered, by it. The contract, upon the finding of facts, must be regarded as one made between Walker and O'Grady, in palpable violation of the laws of the United States forbidding commercial intercourse between persons respectively residing in places occupied by the national forces, within districts the inhabitants whereof were declared to be in insurrection. It is, therefore, according to the settled doctrines of this court, a contract from which could arise, in favor of Walker, no right to the cotton, as against the United States, which could be enforced in the courts of the Union.

Without, therefore, giving other reasons, quite apparent upon the record, and which would make it our duty to sustain the judgment of the court of claims, we content ourselves with affirming it upon the grounds indicated.

It is so ordered.


text: Talk:Walker's Ex'rs v. United States/Opinion of the Court


text:
Moffitt v. Rogers

This is a suit in equity brought for the infringement of reissued letters patent, dated December 8, 1874, granted to the complainant, John R. Moffitt, for an improvement in the manufacture of heel stiffeners for boots and shoes. The original patent bore date May 21, 1872.

Heel stiffeners or counters, as they are sometimes called, were formerly made by hand, the leather being shaped upon the last while wet by the blows of the shoemaker's hammer. Previous, however, to the date of the complainant's original letters patent ready-made moulded counters were manufactured by placing the counter-blank across the opening of the mould and forcing it into the mould by a plunger or former, or by placing the blank upon the back of the stationary former, and forcing it around the former by the pressure of the mould. Counters had also been shaped on machines by which a rolling pressure was applied. As early as 1853 machines known as the Nichols were employed. This machine had a rotating 'former,' circular in cross-section, which was applied by pressure to another circular roller, conforming to this 'former' longitudinally, the object being to set leather into the proper shape either for soles or heel stiffeners.

In the specification of his original patent Moffitt declared:

'In moulding to shape ready-made counters or stiffeners for heels of boots and shoes made of various materials, but usually of waste bits of leather, a difficulty exists, by reason of the peculiar shape, in getting an equal or sufficient pressure upon all parts of such counter so as to get uniform hardness throughout, and also another difficulty in getting a true and proper permanent form throughout all parts of the same counter, some of it, especially in leather, being of a more spongy nature than other parts. This difference or lack of homogenity prevents a uniform solidity, and precludes the true preservation of the shape which a mould may impart.

'The object of my invention is not only to make more perfect ready-made counters than can be made by any moulding process, but also to make a newarticle of manufacture, viz., a 'rolled' counter, prepared, solidified, and uniformly hardened and set to shape by rolling pressure, such rolling action producing a new as well as better article, and admitting of producing the same from material hitherto found too intractable, such as leather board, sheet metal, etc. Instead, therefore, of shaping the stiffener in mould, I employ no mould of any kind, but use a moving former, A, devised by me, of a shape adapted to give the desired shape to the counters, and set eccentrically on a shaft, B, the shaft being arranged to have a continuous or reciprocating rotary movement, either by hand or by power as described. Beneath this former I place a roller, C, having a profile as shown, the converse of and conforming to that of the 'former,' the shaft of the roller having its bearings in the main frame, D. The shaft of the former has its bearings in a swing-frame, E. F is a treadle-strap, whereby the swing-frame may be pulled down to give any required degree of pressure, and which also permits the eccentric former to rise and fall, as in its movements it rides and rolls over the surface of the counter, the counter-piece being placed centrally upon the 'former' and being rubbed and rolled as well as squeezed between them while being brought into shape.

'The 'former,' as will be seen, projects further from its axis on one side than on the other, so as to conform nearly to the general form of the curves of the inside of a shaped counter. This gives a rolling action in addition to the squeezing over the whole body of the counter.'

The cross-section of the 'former,' as shown by the drawings and model, was elongated, with one or both ends semi-circular.

The specification proceeds:

'The end, g, of the 'former' need not be a plane, as shown in figure 1, but instead may be rounded at its opposite end, as shown in figure 3, so that it may be continuously revolved and in either direction. In such case I prefer to place the shaft in its center, or equally distant from both ends.

'Instead of a single roll, a pair of auxiliary rolls may be used, as shown in figure 4, one on each side of the single one.'

The claims were thus stated:

'I claim (1) the described apparatus for rolling to shape heel stiffeners or counters; (2) I also claim as a new article of manufacture heel stiffeners or counters shaped and compacted by a rolling action, as described; (3) I also claim the process herein described of shaping and setting to shape heel stiffeners or counters by rolling as distinguished from moulding.'

The specification of the reissued patent is substantially to same as that of the original patent, with the following exceptions:

For the term 'rollers,' in the original specification, the words 'supports or rollers' are substituted in the reissued specification, and the word 'mechanism' in the first claim of the reissue.

In the reissued specification the requirement that the 'former' should be set eccentrically on a shaft, and the statement that the former projects further from the axis on one side than the other, are omitted.

The claims of the reissued patent are as follows:

(1) In a machine for making counters or stiffeners for boots and shoes, a turning or revolving former in combination with mechanism for holding and shaping the blank over it; (2) the revolving or turning counter-former, A, in combination with a supporting roll or rolls for rolling or for rolling and flanging blank stock into heel stiffeners, substantially as shown and described; (3) the process described of forming the heel-seat of a counter by means of a former having a motion about a center, and which gives to the heel-seat a drawing or rubbing action against a flange or bearing surface in addition to the rolling action.

The infringement charged against the defendants was in the use by them of the device described in the reissued letters patent of Louis Cote, dated June 2, 1874.

The specification of this patent declares:

'The invention or machine consists of a rotary head of a spherical, spheroidal, or sphero-cylindrical shape, fixed upon and concentrically with a rotary shaft, in combination with a stationary mould correspondingly or approximately so concaved, whereby, by the revolution of the said rotary head within the mould, a piece of leather of suitable form introduced between them may be drawn into and through the concavity of the mould, and receive a curved form lengthwise and withdrawn, and thereby be adapted for use as a stiffening for a boot or shoe.'

A clear idea of the contrivance covered by the Cote patent may be derived from the drawings which illustrated the specification.

On final hearing of the cause the circuit court dismissed the bill and the complainant appealed.

''Geo. Harding and W. A. Macleod'', for appellant.

T. L. Wakefield and Chauncey Smith, for appellees.

WOODS, J.

title: Moffitt v. Rogers


text: Talk:Moffitt v. Rogers

title: Talk:Moffitt v. Rogers


text:
Moffitt v. Rogers/Opinion of the Court

The evidence leaves no doubt in our minds that the first claim of Moffitt's reissued patent is broader than any claim of his original patent. The original patent covered an elongated heelshaped former, set eccentrically upon its shaft. This was an essential part of the invention described in the original patent. The specification declares: 'I use a 'former,' A, of a shape adapted to give the desired shape to the counter, and set eccentrically on the shaft, B.' The 'former' shown by the drawings is elongated and heel-shaped in cross-section. The specification further declares: 'The 'former,' as will be seen, projects further from its axis on one side than on the other, so as to conform nearly to the general form of the curves of the inside of the shaped counter. This gives a rolling action in addition to the squeezing over the whole body of the counter.' The specification of the reissued patent omits both of these statements, and thus allows a 'former' to be made, if desired, with a circular cross-section, and to be set concentrically on its shaft. It is therefore clear that it covers a contrivance essentially different from that described in the original specification and claim.

The first claim of Moffitt's reissued patent differs materially from the specification and first claim of the original patent in another particular. The original specification thus describes the means by which the blank stock is pressed against the 'former:' 'Beneath the former I place a roller, C, having a profile, as shown, the converse of and conforming to that of the former, the shaft of the roller having its bearings in the main frame, D.' It is also stated that 'instead of a single roll a pair of auxiliary rolls may be used, as in figure 4, one on each side of the single one.' In the first claim of the reissued patent the device of one or three rolls is expanded to cover 'any mechanism for holding and shaping the blank over' the 'former.'

It therefore appears that the specification and first claim of the original patent was intended to cover an elongated heel-shaped former, eccentrically set upon its shaft, against which the material of which the counter was to be made was pressed by a revolving roller or rollers, and that the first claim of the reissued patent was expanded so that it might cover a 'former' circular in cross-section, concentrically set, and revolving in the semi-circular groove of a stationary mould, by which the material was pressed against the former.

The difference between the device covered by the specification and first claim of the original patent, and the device which might be embraced by the specification and first claim of the reissued patent, is essential and palpable.

If the evidence proves any infringement, it is of the first claim only of complainant's reissued letters patent, and that such infringement is by the use of the machine covered by the Cote patent.

The purpose of the complainant to cover by his reissued patent the invention described in the Cote patent is clear, and is not denied. It is evident that the Cote machine does not infringe the original patent of Moffitt. The 'former' described in the original specification of Moffitt being elongated in cross-section and eccentrically set upon its shaft, could not have either a rotating or reciprocating movement in the semi-circular grooved mould of the Cote patent, and by no stretch of construction could the stationary grooved mould of the latter patent be considered the equivalent of the cylindrical revolving rollers of Moffitt's original patent.

The specification and first claim of the reissued patent is a plain attempt to include a device which was not and could not be fairly covered by the original patent. That claim is, therefore, for that reason void. Gill v. Wells, 22 Wall. 1; The Wood-paper Patent, 23 Wall. 566; Powder Co. v. Powder Works, 98 U.S. 126; Ball v. Langles, 102 U.S. 128; Miller v. Brass Co. 104 U.S. 350; James v. Campbell, Id. 356; Heald v. Rice, Id. 737; Bantz v. Frantz, 105 U.S. 160; Johnson v. Flushing & North Side R. Co. 105 U.S. 539. And the evidence shows no infringement of any other claim of the reissued patent.

The decree of the circuit court dismissing the bill was therefore right and must be affirmed.

See S.C.. 8 FED. REP. 147.

title: Moffitt v. Rogers/Opinion of the Court


text: Talk:Moffitt v. Rogers/Opinion of the Court


text:
Nets to Catch the Wind/The Eagle and the Mole

Avoid the reeking herd, Shun the polluted flock, Live like that stoic bird, The eagle of the rock.

The huddled warmth of crowds Begets and fosters hate; He keeps, above the clouds, His cliff inviolate.

When flocks are folded warm, And herds to shelter run, He sails above the storm, He stares into the sun.

If in the eagle's track Your sinews cannot leap, Avoid the lathered pack, Turn from the steaming sheep.

If you would keep your soul From spotted sight or sound, Live like the velvet mole; Go burrow underground.

And there hold intercourse With roots of trees and stones, With rivers at their source, And disembodied bones.


text:
Independent School-Dist Ackley Hardin County Iowa v. Hall

Galusha Parsons, for plaintiff in error.

A. T. Britton and Walter H. Smith, for defendant in error.

WAITE, C. J.


text: Talk:Independent School-Dist Ackley Hardin County Iowa v. Hall


text:
Independent School-Dist Ackley Hardin County Iowa v. Hall/Opinion of the Court

These motions are denied. A failure to annex to or return with a writ of error an assignment of errors, as required by section 997 of the Revised Statutes, is no ground for dismissal for want of jurisdiction. If an assignment is filed in accordance with the requirements of paragraph 4, rule 21, it will ordinarily be enough.

There is not in this case such a color of right to a dismissal as to make it proper for us to consider the motion to affirm. Whitney v. Cook, 99 U.S. 607.


text: Talk:Independent School-Dist Ackley Hardin County Iowa v. Hall/Opinion of the Court


text:
Grant v. Phoenix Mutual Life Insurance Company (106 U.S. 429)

This is an appeal from the following decree in a suit for the forclosure of certain deeds of trust in the nature of mortgages to secure the payment of money:

'The cause came on to be heard upon the pleadings and proofs     therein, and having been submitted by the counsel of the      respective parties and duly considered by the court, and it      appearing to the court that said defendant, Albert Grant, is      not entitled to any relief under his cross-bill in this      cause; that the plaintiff is the holder and owner of the      several obligations of said Grant, secured by the deeds of      trust on the real estate prayed in the original bill of      complaint herein to be sold for the payment of the      indebtedness thereon, and mentioned and set forth in the third, fourth, fifth, sixth, seventh,      and eighth paragraphs of said bill; that said Grant has made      default in the payment of his said obligations, on which he      is indebted to the plaintiff in large sums of money, with      long arrearages of interest; that said Grant has not paid      taxes on said real estate for a number of years, and the same      are in arrears for upwards of $20,000; that said indebtedness      of said defendant, Grant, to the plaintiff largely exceeds      the value of said real estate, and that the plaintiff has no      personal security for its said debt; it is this second day of      March, A. D. 1882, ordered, adjudged, and decreed that this      cause be, and the same hereby is, referred to the auditor of      the court to state the account between the plaintiff and the      defendant, Albert Grant; the amount due under said several      deeds of trust on said real estate prayed to be sold in said      bill; the amounts due said judgment and mechanic's lien      creditors referred to in said bill; whether the same are      liens upon any of said real estate; the relative priorities      of the claims of said creditors and the plaintiff, and the      value of the said real estate,-all from the proofs in this      cause, except as to said mechanic's lien,-and report the same      to this court. And said auditor shall further ascertain and     report to this court the amount due for taxes in arrears on      said real estate, and whether the same or any part thereof      has been sold for taxes, and if so, when, for what taxes, for      what amount, and to whom.'

To this was added an order appointing a receiver to take possession of the property, make leases, etc.

''Wm. A. Meloy'', for appellant.

W. F. Mattingly and R. T. Merrick, for appellee.

WAITE, C. J.


text: Talk:Grant v. Phoenix Mutual Life Insurance Company (106 U.S. 429)


text:
Grant v. Phoenix Mutual Life Insurance Company (106 U.S. 429)/Opinion of the Court

A motion is now made to dismiss because the decree appealed from is not a final decree.

The rule is well settled that a decree to be final, within the meaning of that term as used in the acts of congress giving this court jurisdiction on appeal, must terminate the litigation of the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the decree it had already rendered. This subject was considered at the present term in Bostwick v. Brinkerhoff, where a large number of cases are cited. It has also been many times decided that a decree of sale in a foreclosure suit, which settles all the rights of the parties and leaves nothing to be done but to make the sale and pay out the proceeds, is a final decree for the purposes of an appeal. Ray v. Law, 3 Cranch, 179; Whiting v. Bank, 13 Pet. 15; Bronson v. Railroad Co. 2 Black, 531; Green v. Fisk, 103 U.S. 520. But in Railroad v. Swasey, 23 Wall. 409, it was held that 'to justify such a sale, without consent, the amount due upon the debt must be determined. * *  * Until this is done the rights of the parties are not all settled. Final process for the collection of money cannot issue until the amount to be paid or collected by the process, if not paid, has been adjudged.' In this the court but followed the principle acted on in Barnard v. Gibson, 7 How. 656; Humiston v. Stainthorp, 2 Wall. 106; Crawford v. Points, 13 How. 11, and many other cases.

The present decree is not final according to this rule. It does not order a sale of the property. It overrules the defense of the appellant as set forth in his cross-bill, and declares that the appellee is the holder and owner of the debt secured by the deeds of trust, but refers the case to an auditor to ascertain the amount due upon the debt, the amount due certain judgment and lien creditors, the existence and priorities of liens, and the claims for taxes. It is true that the court finds the amount due the appellee largely exceeds the value of the property, but this is only as a foundation for the order appointing the receiver. If in point of fact it is not true, the finding will not conclude the parties in the final closing up of the suit. The order for the delivery of the property is only in aid of the foreclosure proceedings, and to subject the income, pending the suit, to the payment of any sum that may in the end be found to be due. If anything remains, either of the income or of the proceeds of the sale after the mortgage or trust debts are satisfied, it will go to the appellant, notwithstanding what has been decreed. There is no order as in Forgay v. Conrad, 6 How. 201; Thomson v. Dean, 7 Wall. 346, and other cases of a like character, adjudging the property to belong absolutely to the appellee, and ordering immediate delivery of possession. In Forgay v. Conrad, supra, which is a leading case on this question, it was expressly said by Chief Justice TANEY (page 204) that the rule did not extend to cases where property was directed to be delivered to a receiver. The reason is that the possession of the receiver is that of the court, and he holds, pending the suit, for the benefit of whomsoever it shall in the end be found to concern. Neither the title nor the rights of the parties are changed by his possession. He acts as the representative of the court in keeping the property so that it may be subjected to any decree that shall finally be rendered against it.

It follows that the appeal must be dismissed; and it is so ordered.


text:
Nets to Catch the Wind/Madman's Song

Better to see your cheek grown hollow, Better to see your temple worn, Than to forget to follow, follow, After the sound of a silver horn.

Better to bind your brow with willow And follow, follow until you die, Than to sleep with your head on a golden pillow, Nor lift it up when the hunt goes by.

Better to see your cheek grown sallow And your hair grown gray, so soon, so soon, Than to forget to hallo, hallo, After the milk-white hounds of the moon.

title: Nets to Catch the Wind/Madman's Song


text: Talk:Grant v. Phoenix Mutual Life Insurance Company (106 U.S. 429)/Opinion of the Court


text:
Bolles Wooden Ware Co v. United States

S. D. Hastings, Jr., for plaintiff in error.

Asst. Atty. Gen. Maury, for defendant in error.

MILLER, J.

title: Bolles Wooden Ware Co v. United States


text: Talk:Bolles Wooden Ware Co v. United States


text:
Bolles Wooden Ware Co v. United States/Opinion of the Court

This is a writ of error to the circuit court for the eastern district of Wisconsin, founded on a certificate of division of opinion between the judgee holding that court. The facts, as certified, out of which this difference of opinion arose appear in an action in the nature of trover, brought by the United States for the value of 242 cords of ash timber, or wood suitable for manufacturing purposes, cut and removed from that part of the public lands known as the reservation of the Oneida tribe of Indians, in the state of Wisconsin. This timber was knowingly and wrongfully taken from the land by Indians, and carried by them some distance to the town of Depere, and there sold to the defendant, which was not chargeable with any intentional wrong or misconduct or bad faith in the purchase. The timber on the ground, after it was felled, was worth 25 cents per cord, or $60.71 for the whole, and, at the town of Depere, where defendant bought and received it, $3.50 per cord, or $850 for the whole quantity. The question on which the judges divided was whether the liability of the defendant should be measured by the first or the last of these valuations. It was the opinion of the circuit judge that the latter was the proper rule of damages, and judgment was rendered against the defendant for that sum. We cannot follow counsel for the plaintiff in error through the examination of all the cases, both in England and this country, which his commendable research has enabled him to place upon the brief. In the English courts the decisions have in the main grown out of coal taken from the mine, and in such cases the principle seems to be established in those courts that when suit is brought for the value of the coal so taken, and it has been the result of an honest mistake as to the true ownership of the mine, and the taking was not a willful trespass, the rule of damages is the value of the coal as it was in the mine before it was disturbed, and not its value when dug out and delivered at the mouth of the mine. Martin v. Porter, 5 Mess. & W. 351; Morgan v. Powell, 3 Adol. & E. (N. S.) 278; Wood v. Morewood, 3 Adol. & E. 440; Hilton v. Woods, L. R. 4 Eq. 438; Jegon v. Vivian, L. R. 6 Ch. App. 760.

The doctrine of the English courts on this subject is probably as well stated by Lord HATHERLY in the house of lords, in the case of Livingston v. Rawyards Coal Co. L. R. 5 App. Cas. 33, as anywhere else. He said:

'There is no doubt that if a man furtively, and in bad faith,     robs his neighbor of his property, and because it is      underground is probably for some little time not detected,      the court of equity in this country will struggle, or I would      rather say, will assert its authority, to punish the fraud by      fixing the person with the value of the whole of the property      which he has so furtively taken, and making him no allowance      in respect of what he has so done, as would have been justly      made to him if the parties had been working by agreement.'      But 'when once we arrive at the fact that an inadvertence has      been the cause of the misfortune, then the simple course is      to make every just allowance for outlay on the part of the      person who has so acquired the property, and to give back to      the owner, so far as is possible under the circumstances of      the case, the full value of that which cannot be restored to      him in specie.'

There seems to us to be no doubt that in the case of a willful trespass the rule as stated above is the law of damages both in England and in this country, though in some of the state courts the milder rule has been applied even to this class of cases. Such are some that are cited from Wisconsin. Single v. Schneider, 24 Wis. 299; Weymouth v. Railroad Co. 17 Wis. 567. On the other hand, the weight of authority in this country as well as in England favors the doctrine that where the trespass is the result of inadvertence or mistake, and the wrong was not intentional, the value of the property when first taken must govern, or if the conversion sued for was after value had been added to it by the work of the defendant, he should be credited with this addition. Winchester v. Craig, 33 Mich. 205, contains a full examination of the authorities on the point. Heard v. James, 49 Miss. 236; Baker v. Wheeler, 8 Wend. 505; Baldwin v. Porter, 12 Conn. 484. While these principles are sufficient to enable us to fix a measure of damages in both classes of torts where the original trespasser is defendant, there remains a third class where a purchaser from him is sued, as in this case, for the conversion of the property to his own use. In such case, if the first taker of the property were guilty of no willful wrong, the rule can in no case be more stringent against the defendant who purchased of him than against his vendor.

But the case before us is one where, by reason of the willful wrong of the party who committed the trespass, he was liable, under the rule we have supposed to be established, for the value of the timber at Depere the moment before he old it, and the question to be decided is whether the defendant who purchased it then with no notice that the property belonged to the United States, and with no intention to do wrong, must respond by the same rule of damages as his vendor should if he had been sued. It seems to us that he must. The timber at all stages of the conversion was the property of plaintiff. Its purchase by defendant did not divest the title nor the right of possession. The recovery of any sum whatever is based upon that proposition. This right, at the moment preceding the purchase by defendant at Depere, was perfect, with no right in any one to set up a claim for work and labor bestowed on it by the wrong-doer. It is also plain that by purchase from the wrong-doer defendant did not acquire any better title to the property than his vendor had. It is not a case where an innocent purchaser can defend himself under that plea. If it were, he would be liable to no damages at all, and no recovery could be had. On the contrary, it is a case to which the doctrine of caveat emptor applies, and hence the right of recovery in plaintiff. On what ground, then, can it bemaintained that the right to recover against him should not be just what it was against his vendor the moment before he interfered and acquired possession? If the case were one which concerned additional value placed upon the property by the work or labor of the defendant after he had purchased, the same rule might be applied as in case of the inadvertent trespasser. But here he has added nothing to its value. He acquired possession of property of the United States at Depere, which, at that place, and in its then condition, is worth $850, and he wants to satisfy the claim of the government by the payment of $60. He founds his right to do this, not on the ground that anything he has added to the property has increased its value by the amount of the difference between these two sums, but on the proposition that in purchasing the property, he purchased of the wrong-doer a right to deduct what the labor of the latter had added to its value.

If, as in the case of an unitentional trespasser, such right existed, of course defendant would have bought it and stood in his shoes; but, as in the present case, of an intentionl trespasser, who had no such right to sell, the defendant could purchase none.

Such is the distinction taken in the Roman law as stated in the Inst. Just. lib. 2, tit. 1, § 34.

After speaking of a painting by one man on the tablet of another, and holding it to be absurd that the work of an Apelles or Parrhasius should go without compensation to the owner of a worthless tablet, if the painter had possession fairly, he says, as translated by Dr. Cooper: 'But if he, or any other, shall have taken away the tablet feloniously, it is evident the owner may prosecute by action of theft.'

The case of Nesbitt v. St. Paul Lumber Co. 21 Minn. 491, is directly in point here. The supreme court of Minnesota says:

'The defendant claims that because they [the logs] were     enhanced in value by the labor of the original wrong-doer in      cutting them, and the expense of transporting them to Anoka,      the plaintiff is not entitled to recover the enhanced value,      that is, that he is not entitled to recover the full value at      the time and place of conversion.'

That was a case, like this, where the defendant was the innocent purchaser of the logs from the willful wrong-doer, and where, as in this case, the transportation of them to a market was the largest item in their value at the time of coversion by defendant; but the court overruled the proposition and affirmed a judgment for the value at Anoka, the place of sale. To establish any other principle in such a case as this would be very disastrous to the interest of the public in the immense forest lands of the government. It has long been a matter of complaint that the depredations upon these lands are rapidly destroying the finest forests in the world. Unlike the individual owner, who, by fencing and vigilant attention, can protect his valuable trees, the government has no adequate defense against this great evil. Its liberality in allowing trees to be cut on its land for mining, agricultural, and other specified uses, has been used to screen the lawless depredator who destroys and sells for profit. To hold that when the government finds its own property in hands but one remove from these willful trespassers, and asserts its right to such property by the slow processes of the law, the holder can set up a claim for the value which has been added to the property by the guilty party in the act of cutting down the trees and removing the timber, is to given encouragement and reward to the wrong-doer, by providing a safe market for what he has stolen and compensation for the labor he has been compelled to do to make his theft effectual and profitable.

We concur with the circuit judge in this case, and the judgment of the circuit court is affirmed.


text: Talk:Bolles Wooden Ware Co v. United States/Opinion of the Court