text: Talk:Sawyer v. Prickett/Opinion of the Court


text:
Cropley v. Cooper

APPEAL from the Supreme Court of the District of Columbia.

William Cooper, of Maryland, died in 1845, leaving a widow (Sarah), three sons, William, Joseph, and John, and one daughter, Elizabeth. Two of the sons, William and Joseph, were married and had children; John was unmarried. Elizabeth, then thirty years old, was married to Richard Cropley and had one son, William Cooper Cropley.

The testator's property consisted of a farm in Maryland, on which he resided; a house on Pennsylvania Avenue, in the city of Washington; a vacant lot there, on Capitol Hill; stock in the Potomac Insurance Company, and stock in the corporation of Alexandria.

His will ran as follows:

'I will and bequeath to my dear wife, Sarah Cooper, all my stocks which I own in corporate institutions during her life; also the rents arising from my house in the city of Washington. I also devise and bequeath to my said wife the usufruct of the farm on which I now reside, for and during her life, with the option of selling to same by her,. . . in which case my will is that the proceeds shall be invested in stocks of some sound and corporate institutions, the interest from the same to be enjoyed by my said wife for and during her life, and at her death the said farm, or its avails if previously sold, as above permitted, to be appropriated as hereinafter directed.

'I will and devise to my son William, after his mother's death, the interest on $1250 stock now held by me in the Potomac Insurance Company, Georgetown. I also will and bequeath to may said son, William Cooper, a vacant lot on Capitol Hill, Washington; and at his death it is my will that the said vacant lot and aforementioned stock be equally divided between his children, their heirs and assigns forever.

'To my son John I give and bequeath, at his mother's death, the usufruct of the aforementioned farm, or the interest of its avails, if previously sold, for and during his life; and should be marry and have legal issue, it is my will that the said farm, or, if previously sold, the avails thereof, together with any interest that may be due thereon at his decease, shall be equally divided amongst his children when they shall have arrived at the age of twenty-one years, the interest is the meantime to be applied to their maintenance. Should my said son John die without lawful issue, it is my will that the said farm, or its avails in case of its being sold, be equally divided between my other children, share and share alike to them, their heirs and assigns forever.

'To my son Joseph, at his mother's death, I give and bequeath, for and during his life, interest on $1500 in the Alexandria Corporation stock, held by me, and at his death the said stock to be equally divided between his children.

'To my daughter, Elizabeth Cropley, at her mother's death, I give and bequeath the rent of my house on Pennsylvania Avenue, in the city of Washington, situated on square _____, for and during her life; and at her death it is my will that the said _____ be sold, and the avails thereof become the property of her children or child, when he, she, or they have arrived at the age of twenty-one years, the interest in the meantime to be applied to their maintenance.'

Shortly after the death of the testator, Mrs. Cropley had another child, a daughter, who died in infancy.

William Cooper Cropley, the child living at the death of the testator, died in December, 1870, at the age of twenty-eight, without issue, leaving his mother his sole heir-at-law and personal representative.

The widow of the testator died in February, 1854. Richard Cropley, the husband of Elizabeth, died in 1851.

After William Cooper Cropley's death, his mother, then fifty-six years of age, asserted ownership in the house on Pennsylvania Avenue, mentioned in the will, and by the last but two of the above-quoted clauses of the will devised to her for life, and at her death over to her child or children. Her view was that her deceased son, William Cooper Cropley, took a vested interest in the bequest in question at the death of his grandfather, the testator, but subject to open and let in after-born children, and to take effect in enjoyment at the death of his mother; that his sister, at her birth, took a like vested interest to the extent of a moiety; that at the sister's death her right passed to him as distributee (the statute of distributions of Maryland thus providing); that at his death all his right passed to her, his mother, the complainant, as a like distributee under the same statute.

The other children of the testator, William, John, and Joseph, claimed the property, as heirs-at-law, on the ground that the devise over to the child or children had lapsed.

This claim of the heirs-at-law casting a cloud on the title, Mrs. Cropley filed a bill in the court below against said William, John, and Joseph, to obtain a construction of the will.

The bill represented that the complainant wished to sell the property, but could not, owing to the cloud on the title made by the claim of the sons, and it prayed that a decree might be passed divesting the defendants of any title in or to the property, and vesting the same in the complainant, giving the true construction and interpretation of said last will and testament.

That the court would grant such other and further relief as to the court may seem meet and the interests of the complainant might require.

The court below decreed that the devise over to the child or children of Mrs. Cropley was contingent upon the child or children surviving the mother, and also attaining twenty one, and hence that the devise over did not vest at the death of the testator, nor even upon William Cooper Cropley attaining twenty-one, he having died in the lifetime of the mother. It accordingly dismissed the bill.

From this decree Mrs. Cropley took this appeal.

The case was elaborately argued on principle and authority, by Messrs. W. D. Davidge and F. W. Jones, for the appellant, and by Messrs. J. H. Bradley and R. T. Merrick, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

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

title: Cropley v. Cooper


text: Talk:Cropley v. Cooper

title: Talk:Cropley v. Cooper


text:
Cropley v. Cooper/Opinion of the Court

This case turns upon the following clause of the will of William Cooper, deceased:

'To my daughter, Elizabeth Cropley, at her mother's death, I give and bequeath the rent of my house on Pennsylvania Avenue, in the city of Washington, situated on square _____, for and during her life; and at her decease it is my will that the said _____ be sold, and the avails therefrom become the property of her children or child, when he, she, or they have arrived at the age of twenty-one years, the interest in the meantime to be applied to their maintenance.'

The testator died in 1845. He left at his decease a widow, Sarah Cooper, and four children, William, John, Joseph, and Elizabeth, the complainant. William and Joseph were married and had children. John was unmarried. Elizabeth was intermarried with Richard Cropley, and had living one child, William Cooper Cropley, then about three years old. Shortly after the testator's death, Elizabeth gave birth to a daughter, who died in early infancy. Richard Cropley, the husband of Elizabeth, died in 1851. Her mother died in 1854. Her son, William Cooper Cropley, died in 1870, at the age of twenty-eight years, not having married. After his death, Elizabeth Cropley, the complainant, then fifty-six years of age, claimed to own the house on Pennsylvania Avenue devised to her for life. Her brothers, William, John, and Joseph, set up claims as heirs-at-law of their father, alleging that the bequest to the children of Elizabeth had failed by reason of the death of both of them before the death of their mother, and of the younger one before reaching the age of twenty-one years. The complainant thereupon filed this bill to obtain a construction of the will, and to ascertain her rights.

The question presented for our determination is, whether the bequest to her children lapsed, as is insisted by the appellees; or, in other words, whether it was vested or contingent.

It is an axiom in the law of wills that the intention of the testator shall prevail. Upon looking at this will as regards the four children of the testator, we find that the provision made for each is clear and explicit. He gave to William, after his mother's death, the income from $1250 of the stock of the Potomac Insurance Company, and a vacant lot on Capitol Hill. At his death, directed 'that the said vacant lot and the aforementioned stock be equally divided between his children, their heirs and assigns forever.' To John, at his mother's death, was given the use of a farm; or, if sold by his mother, the interest accruing from the proceeds, for life. If he should marry and have lawful issue, at his death, the farm or its avails was to be equally divided among his children when they should arrive at the age of twenty-one, 'the interest in the meantime to be applied to their maintenance.' This clause concludes as follows: 'Should my son John die without issue, it is my will that the said farm or its avails, in case of its being sold, be equally divided among my other children, share and share alike, to them, their heirs and assigns forever.' To Joseph, at his mother's death, was given the interest of $1500 of Alexandria Corporation stock, and at his death it was 'to be equally divided between his children.' Then follows the provision for Elizabeth and her children.

The property given to the sons who had children, is given to them for life, and at their death of their children in equal shares. There is no provision beyond this. The gift is absolute. The children of John, if he should have any, were not to receive their shares until they should arrive at the age of twenty-one. But the interest, in the meantime, was to be applied to their support. It was only in the event of his dying without issue that the further provision was to take effect. The entire failure of issue at his death and not the failure of such issue to reach the age named was the condition of the gift over to his brothers and sister.

So as respects the complainant, who, like her brothers William and Joseph, had issue living at the death of the testator. The gift is to her and her child or children, and there is no devise or bequest over in any contingency that might occur. The mother and children were the objects of the testator's solicitude and bounty. He looked no further into the future. William, Joseph, and Elizabeth, and their children were thus placed upon a footing of equality. If John should have lawful issue living at his death, such issue would be in the same category with the children of William, Joseph, and Elizabeth. It seems clear to us that the testator intended that what was given to each of his children should vest interest in them and in their children as early as possible, the period of enjoyment to be deferred in each case as was specially provided, and that the result should be the same in John's case if issue should thereafter be born to him and survive him. Beyond his grandchildren, including the children of John, if any should be living at his death, the testator left it to the local law of descent and distribution to meet any emergency that might arise.

It was only in the single event of John dying without issue, that it was declared by the testator that the property thus given to one of his children should go over to the others.

If we pursue the subject before us by the light of the rules of law which apply, we shall reach the same conclusion. An analysis of the clause in question eliminates these particulars:

Laying out of view the estate of her mother, a life estate is given to Elizabeth Cropley.

At the death, whenever that might occur, and whatever then the age of her offspring, the property was to be sold and converted into money. Her death and the sale might have occurred immediately after the death of the testator.

Upon the sale being made, her offspring, if minors, would have become entitled to the interest of the fund until the age of twenty-one years was reached. The right to receive the whole or an aliquot part of the fund would then have accrued.

The time of selling had no relation to the age of the legatees.

It depended wholly on the death of the tenant of the life estate.

The effect of her dying during their infancy would have been that they would have taken the interest instead of the principal of the fund up to the age of twenty-one, and then the principal instead of the interest.

The real estate having been directed by the will to be converted into money, it is to be regarded for all the purposes of this case as if it were money at the time of the death of the testator. That it was not to be sold until after the termination of two successive life estates does not affect the application of the principle. Equity regards substance and not form, and considers that as done which is required to be done. The sale being directed absolutely, the time is immaterial.

Where a bequest is given by a direction to pay when the legatee attains to a certain age, and the interest of the fund is given to him in the meantime, this shows that a present gift was intended, and the legacy vests in interest at the death of the testator.

A bequest in the form of a direction to pay at a future period vests in interest immediately if the payment be postponed for the convenience of the estate or to let in some other interest. The payment of debts is an instance of the former, and a prior temporary provision for some other person, as for Elizabeth Cropley in this case, is an instance of the latter. In all such cases it is presumed that the testator postponed the time of enjoyment by the ultimate legatee for the purpose of the prior devise or bequest.

A devise of lands to be sold after the termination of a life estate given by the will, the proceeds to be distributed thereafter to certain persons, is a bequest to those persons and vests at the death of the testator.

It is a consideration of weight that if William Cooper Cropley, who died at the age of twenty-eight, had married and left children, according to the proposition of the appellees, they could have taken no benefit from the provision made for their father. Such could not have been the intention of the testator. In real property cases, where the question arises whether a remainder is vested or contingent, this consequence is held to be conclusive that it was the former. In Goodtitle v. Whitby, Lord Mansfield said: 'Here, upon the reason of the thing, the infant is the object of the testator's bounty, and the testator does not mean to deprive him of it in any event. Now, suppose this object of the testator's bounty marries and dies before his age of twenty-one leaving children, could the testator intend, in such event, to disinherit him? Certainly he could not.' In Doe v. Perryn, Buller, J., said: 'But if this were held not to vest till the death of the parents, this inconvenience would follow: that it would not go to grandchildren, for if a child were born, who died in the lifetime of his parents, leaving issue, such grandchild could not take, which could not be supposed to be the intention of the devisor.' This reasoning applies to the present case.

Boraston's Case was referred to by counsel on both sides. The point there ruled was as follows: If real estate be devised to A. when he shall attain a given age, and until A. attains that age the property is devised to B., A. takes an immediate vested estate, not defeasible on his death under that age; the gift being read as a devise to B. for a term of years, with remainder to A. The same doctrine has since been affirmed in numerous other cases, and is now a canon of the English law. Boraston's Case related to real property. If this were such a case it would be in point and conclusive. It has been applied by American courts to bequests of personalty. The subject of vested and contingent remainders was examined by this court in Poor v. Considine.

Chancellor Kent says: 'It is the uncertainty of the right of enjoyment and not the uncertainty of its actual enjoyment which renders a remainder contingent. The present capacity of taking effect in possession, if the possession become vacant, distinguishes a vested from a contingent remainder, and not the certainty that the possession will ever become vacant while the remainder continues.'

'When a remainder is limited to a person in esse and ascertained to take effect by words of express limitation on the determination of the preceding particular estate, this remainder is most clearly and unquestionably vested.'

Bequests involving the question before us may be resolved into two classes:

(1.) Those where the time or event referred to in the future is of the substance and a condition of the gift, and, hence, marks the time of vesting in interest.

(2.) Those where the vesting in interest has already occurred, and such event or time only designates the period of the commencement of the enjoyment.

We think this case belongs to the second category.

We hold that William Cooper Cropley took a vested interest in the bequest in question at the death of the testator, but subject to open and let in after-born children, and to take effect in enjoyment at the death of his mother; that his sister, at her birth, took a like vested interest to the extent of a moiety; that at her death her right passed to him as distributee, according to the Statute of Distribution of Maryland; that at his death all his right passed to his mother, the complainant, as a like distributee under the same statute. If the property shall be sold at her death all the avails will go to her legal representative. She may dispose of them in advance by will, or leave them to be distributed according to the statute.

At the age of twenty-one William Cooper Cropley might have elected to take the property instead of its proceeds. In that event no sale could have taken place. The complainant is now the only party in interest. Under the circumstances, we think the complainant may exercise the right of election as her son, if living, could have done, and that, under the general prayer for relief in the bill, she may accomplish that object in this case, if she shall desire to do so.

DECREE REVERSED, and the cause remanded with directions to enter a decree

IN CONFORMITY TO THIS OPINION.

title: Cropley v. Cooper/Opinion of the Court


text: Talk:Cropley v. Cooper/Opinion of the Court


text:
The Rio Grande

APPEAL from the Circuit Court for the District of Louisiana; the case being thus:

The Judiciary Act as amended by an act of 1803 gives appeals to this court from the Circuit Courts in admiralty causes, 'where the matter in dispute exceeds the sum or value of $2000, exclusive of costs.'These provisions of law being in force, the steamer Rio Grande, owned, as was alleged, by persons in Mexico, being in the port of Mobile, in the Southern District of Alabama, certain material-men, on the 26th of November, 1867, filed separate libels against her in the District Court for the said district. The libels, with their numbers and the names of the libellants on the docket, were thus:

No. 221. William Otis, for $1,508 00

No. 222. Joseph Hastings, 83 75

No. 223. R. D. Post & Co., 125 00

No. 224. Lyons & Keyland, 1,411 83

No. 225. G. B. & C. B. Gwin & Co., 713 00

Upon process issued on these libels the vessel was seized by the marshal and held by him during the pendency of the proceedings in the said court.

Several other libels had apparently been filed against the same steamer. The record at least contained this entry, which, as it is referred to in what is said by the learned justice who delivered the opinion of this court, and apparently as affecting the case, is here set out:

title: The Rio Grande


text: Talk:The Rio Grande

title: Talk:The Rio Grande


text:
The Rio Grande/Opinion of the Court

Order granting Motion to consolidate Causes.

'Tuesday Morning, December 10th, 1867.

'Court met pursuant to adjournment. Present: the honorable Richard Busteed, judge presiding.

JOSEPH HASTINGS ET AL. v. STEAMBOAT RIO GRANDE.

'In this cause G. N. Stewart, Esquire, attorney for the claimants, moves the consideration of admiralty cases Nos. 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, and 138, with the above-mentioned case; which motion was granted by the court upon a written agreement being filed that such consolidation should not prejudice the officers of the court in respect to costs.'

One Williams and others appeared as claimants and owners of the vessel.

On the 11th of May, 1868, the court dismissed all the libels, on the ground that the credit had been a personal one to the owners, and that there had been no credit to the ship. Hereupon the claimants, on the 12th, and before it was possible to perfect an appeal, got-through some clerical accident apparently-an order of restoration of the vessel to themselves, and carried her right out to sea. The libellants, nevertheless, on the 14th, 15th, and 16th of May took their appeal with supersedeas to the Circuit Court, the Circuit Court, of course, for the District of Alabama; and on the appeal that court, holding that the credit had been to the vessel, reversed, January 11th, 1869, the decree of the District Court, and awarded to each of the libellants above-named the amount claimed by him, with interest at 8 per cent. from the 1st of August, 1867. The order of decree, after setting out the numbers of the cases and the names of the libellants, proceeded thus:

'The above-stated cases having been appealed to this court from the District Court of the United States for the Southern District of Alabama, came on to be heard this day, upon the libels, answers, and proofs; and, it appearing to the court that each of said claims are liens upon said steamer Rio Grande, and it further appearing to the court from the evidence—

'That the claim of William Otis is sustained, $1508, with interest on the same from the 1st day of August, 1867;

'And the claim of Lyons & Keyland is sustained, for the sum of $1411.83, with interest on the same from the 1st day of August, 1867;

'And the claim of Joseph Hastings, for the sum of $83.75, with interest from the 1st day of August, 1867;

'And the claim of R. D. Post, for the sum of $121.75, with interest from the 1st day of August, 1867;

'And the claim of G. B. & C. B. Gwin & Co., for the sum of $713.14, with interest from the 1st day of August, 1867;

'It is therefore ordered and decreed that the said steamer Rio Grande be condemned for the payment of said respective sums, ascertained and admitted to be due to the respective libellants, and that she be sold to pay the same, and the costs of this court and of the District Court.'

Subsequently to all this the material-men, from whose process in the judicial District of Alabama the vessel had been withdrawn, hearing that she was now in the port of New Orleans, in the District of Louisiana, sent over there and, on the 8th of June, 1871, there libelled her.

In this new libel they all joined in one libel. This libel set forth that the steamer was indebted to them severally in the sums already named, with interest, at the rate of 8 per cent. per annum, from the 1st of August, 1867, until paid, that they had libelled her in the District of Alabama, and had got a decree of the Circuit Court, such as has been already stated, and decreeing that the vessel should be sold to pay their claims, and the costs of both District and Circuit Courts aforesaid; that after the decree of the District Court the claimants had removed the vessel from the jurisdiction of the Circuit Court for the District of Alabama, and brought her into the jurisdiction of the Circuit Court for the District of Louisiana, where the same material-men now libelled her. The libel reasserted the old liens for materials, asserted further a lien for $1767.62 for said costs, and prayed that the steamer 'be sold to satisfy the claims of the libellants in the sum of $1767.62, costs of the courts of Alabama, with also all costs in this behalf expended.' After referring to the proceedings in the District and Circuit Court, it added:

'All which will more fully appear by the transcript of the record of said case, which is filed herewith and made part of this libel.'

The District Court for Louisiana (Mr. Justice Durell), like the District Court in Alabama, dismissed the libel. The Circuit Court of Louisiana on appeal, like the Circuit Court for Alabama, reversed the decree of the District Court, and the claimants of the vessel took this appeal.

The transcript of the record, as it came to this court, was composed of what was called in the index the 'original record' (103 pages), and an 'additional record' by way of continuation, and running from page 103 to page 183.

At the conclusion of the former, on page 103, and just above a certificate of the clerk of the Circuit Court of Louisiana, appeared--Instructions from F. Michinard, Esq., to make transcript.

[Filed September 11th, 1873.]

WILLIAM OTIS ET AL. v. S. S. RIO GRANDE.-No. 6819.

In making out the transcript of appeal in the above case, the clerk will please omit the following documents.

All appeal-bonds filed in Judge Durell's court.

Notices to take testimony and continuances.

Omit all libels except those of William Otis (1), Lyons & Keyland (2), R. D. Post & Co. (3), and G. B. & C. B. Gwin & Co. (4).

State that the original libel of Joseph Hastings is for $183.75, for 26 1/4 days' labor, @ $7.

Omit bills attached to libels.

Omit all admiralty warrants and returns, monitions, &c., except in the case of William Otis.

Omit motion for subpoena duces tecum.

Omit orders allowing master further time, and leave to counsel to file briefs.

Omit appeal-bonds.

Very respectfully,

F. MICHINARD, For Rio Grande.

These instructions had been apparently more or less fully complied with. Moreover, the 'original record' did not contain any transcript of a record of the proceedings in the Circuit and District Courts of Alabama, the record, namely, which the libel in the District Court of Louisiana referred to as appended to it, but it did contain, and following the libel, what it called 'Extracts from the transcript annexed to libel and filed in the United States District Court, June 8th, 1871.'

Nevertheless, the clerk of the Circuit Court for Louisiana put, under date of 26th September, 1873, and at the close of the 'original record,' the usual certificate that the 103 pages named contained and formed a 'full, complete, true, and perfect transcript of the record and proceedings had, together with all the evidence adduced on the trial of the case of William Otis et al. v. The Steamer Rio Grande, No. 6819 of the docket, so far as the same now remain of record.'Then followed in the transcript sent here the 'addition to the record.' This opened with an agreement signed by the counsel of both sides, and dated November 27th, 1873, thus:

'It is agreed that the appellants may make perfect and complete the transcript in this case, by having the following documents, forming part of the record of the Circuit Court, copied by the clerk and filed in the Supreme Court, before the trial of the motion to dismiss, to wit.'

[Here followed a list of documents, some, but not all of those which the clerk had omitted.]

Then came what were entitled—

'Extracts from the transcript filed with libel in the United States District Court, District of Louisiana, June 8th, 1871, and in the Circuit Court of the United States, November 2d, 1872.'

This part of the transcript, that is to say, the 'addition to the record,' the clerk of the Circuit Court for Louisiana did not certify as before to be a 'full, complete, true, and perfect copy' of anything; but on the contrary, under date of December 6th, 1873, certified to contain 'true and perfect copies extracts from the transcript of the record and proceedings had in the suits in Southern District of Alabama, and filed in the case of William Otis et al. v. The Steamship Rio Grande, No. 6819 of the docket, so far as the same now remain of record, or on file in said court.'

A motion was now made to dismiss the appeal, because,

1st. The transcript did not contain a true copy of the record and of all the proceedings in the case.

2d. This court had no jurisdiction in the case, as the amount in dispute was less than $2000.

Mr. Semmes, in support of the motion to dismiss:

1st. The eighth rule of court requires that the clerk of the lower court shall make and transmit a true copy of the record and of all proceedings in the cause; this has not been done in the present case, but on the contrary, portions of the record, important to show the character of the seizure and condemnation of the Rio Grande in the several suits of the libellants, have by order of the claimants' proctor been excluded from the transcript.

2d. The decree of the Circuit Court for the District of Alabama was a separate decree for different sums of money, due to the different libellants as material-men against the vessel. None of these amounts, with the interest allowed, amounted at the time of the decree rendered to the sum of $2000, and unless the decree be for more than $2000 in favor of each libellant an appeal cannot lie, even though the aggregate amount exceeds that sum.

And where joint libels in rem are filed for wages of seamen and for supplies, which make a lien on a vessel, the claims for wages and supplies do not become joint, but the decree rendered in favor of each libellant for the sum due him is a several decree, and cannot be appealed from by either libellant or claimant, unless the amount in dispute on each claim exceeds $2000, which amount in dispute as regards the claimant is shown by the decree rendered in favor of the libellant. This is settled in Rich v. Lambert, and in Oliver v. Alexander.

The separate character of the claims of the libellants was not changed or altered by their attempt to enforce the decree of the District Court of Alabama in the Admiralty Court of Louisiana by a joint libel. The sole purpose of the proceedings in Louisiana was to enforce the decree made in Alabama, and the proceedings in Louisiana are merely in the nature of an execution against the vessel. If the vessel or its claimants could not appeal from the decree of the Circuit Court in Alabama, no appeal from proceedings to execute that decree will lie from the decree of the Circuit Court in Louisiana, although the vessel may have been removed from one jurisdiction to another, or have changed owners. The removal or change of ownership cannot affect the jurisdiction of the court.

But if the amount claimed in the libel in Louisiana is to govern the appellate jurisdiction, then the claim of William Otis alone, under that ruling, will be subject to appeal, all the others being for sums below the jurisdiction of the Supreme Court.

Mr. D. C. Labatt, contra, for the appellants:

1. The clerk of the Circuit Court has omitted many important documents which he was not instructed to omit, but the agreement of the counsel about perfecting and completing the transcript, estops from asking a dismissal on that ground. It has been abandoned by the agreement.

2. This appeal is from the Circuit Court for Louisiana, not from the Circuit Court for Alabama; and the decree appealed from was made March 3d, 1871. Now, as Otis claimed $1508, and as Lyons & Keyland claimed $1411.83, and as the decree appealed from, made, as just said, March 3d, 1871, allows them those sums, with interest at 8 p. c. from the 1st day of August, 1867, that is to say, for five years, seven months, and three days, computation will show that, as respects each of those two libellants at least, the matter in controversy does exceed $2000. On such a case, no motion 'to dismiss the appeal,' that is, to dismiss it in toto, can be granted. The most that could be asked for would be some action in regard to the minor claimants.

But none can be asked for in regard to them. There was but one libel filed in the District Court for Louisiana, and that was a joint libel. That joint proceeding was quite unlike the separate proceedings in the District Court for Alabama.

In Alabama the libellants were seeking to enforce their several claims against the Rio Grande for supplies; in Louisiana they sought to enforce the execution of a decree which awarded to them not only the amounts originally claimed by them, but also a sum of $1767.62 for costs. And in their libel in Louisiana the libellants asked that the steamer be 'sold to satisfy the claims of your libellants, with the sum of $1767.62, costs of the courts of Alabama, with also all costs in this behalf expended.' And the decree did award to the libellants the amount thus claimed by them.

The costs thus awarded are not embraced within the exception of the law ('except costs') in computing the amount in dispute. The only costs that are not to be included in the computation are the costs in the proceedings actually carried on in the courts in Louisiana, to secure an adjudication of the rights of the libellants.

Now, touching the amount of these former costs the libellants were joint suitors, not joint and several; they claimed that sum conjointly, and it was thus awarded to them by the decree appealed from. What portion of this sum of $1767 is coming to Otis, or what to Hastings, or what to any of the libellants, the decree does not determine. The sum constitutes a common fund to be distributed among the libellants, and, quoad that amount, brings the case strictly within the rule laid down in Shields v. Thomas, a case in which the cases of Rich v. Lambert and Oliver v. Alexander, cited by the opposing counsel, are reviewed, and in which the distinction which we contend for is recognized.

Now, if such be the case, the appellant cannot be protected against execution for this whole sum of $1767, unless the appeal is maintained against all the libellants. Suppose the appeal to be dismissed as to Hastings, Hastings can issue his execution for the amount awarded to him and the $1767. Opposing counsel will agree to this. And this shows that the libellants are joint libellants to enforce the execution of 'a decree' in their favor; and not joint and several libellants for the sums claimed. Indeed, having filed their libel in the form in which they have consented to do, they could not be heard to say that they were joint and several libellants for a part of their claim and joint libellants only for another part.

In so far as the appellant is concerned, it is a matter of indifference how the whole amount claimed is distributed. That is a matter to be settled between the material-men (the appellees) themselves. At present, in the libel in Louisiana, the decree on which alone it is that there is an appeal, they claim jointly. And, so claiming, it is unimportant that the claims of particular claimants are less than $2000, the claim of all exceeding that sum.

Mr. Justice CLIFFORD delivered the opinion of the court.

Separate libels were filed by the appellees, in the District Court of the United States for the Southern District of Alabama, against the steamboat Rio Grande, to enforce the payment of certain claims made by those parties against the steamboat for materials furnished for repairs and for necessary supplies, which it is alleged constituted a maritime lien upon the steamboat. Process was issued and served and the parties appeared and were heard, and the decree states that the court ordered, adjudged, and decreed that the claims contained in the libels in this cause do not constitute such a maritime lien as to give the court jurisdiction, and the court entered a decree that the libel in each case be dismissed with costs. Immediate application was made to the court by the claimants for an order that the possession of the steamboat should be delivered to them by the marshal, and the record shows that on the twelfth of May, 1868, the motion was granted. Notice of appeal was immediately given by the libellants, and two days after the order was passed delivering the steamboat to the trustees named in the application for the order, the appeal bonds were filed. During the pendency of the several libels in the District Court and before the final decree, to wit, on the tenth of December, 1867, the causes were consolidated by the court upon a written agreement being filed that the consolidation should not prejudice the officers of the court in respect to costs.

On the eighth of June, 1871, the same material-men filed a libel in the District Court of the United States for the District of Louisiana, against the same steamboat, to enforce the maritime lien for the same claims, in which they alleged that during the pendency of the said admiralty proceedings in the District Court for the Southern District of Alabama, the court there ordered the marshal to deliver the possession of the same, as in the order previously described, and that the order was executed as made, notwithstanding the libellants appealed and gave appeal bonds operating as a supersedeas within the period allowed by law for perfecting such appeals. Process was issued and served and the appellants appeared as claimants and filed an answer. Testimony was taken, and the parties having been heard, the court entered a decree dismissing the libel, and the libellants appealed to the Circuit Court, where the parties were again heard, and the Circuit Court reversed the decree of the District Court and entered a decree that the libellants do have and recover from the steamboat the following sums, to wit: William Otis, $1508; Lyons & Keyland, $1411.83; Joseph Hastings, $83.75; R. D. Port & Co., 121.25; G. B. & C. B. Gwin & Co., $713.14, with eight per cent. interest on said different amounts, from the first of August, 1867, until paid, and costs of suit as therein specified. By the record it appears that the decree was entered on the first day of March, 1873, and of course five years and seven months' interest must be added to each of the several sums awarded in the decree. Whereupon the respondents appealed to this court.

Two grounds for dismissing the appeal are set forth in the motion under consideration:

1st. That the transcript does not contain a true copy of the record and of all the proceedings in the case, under the hand and seal of the Circuit Court.

2d. That this court has no jurisdiction in the case, as the amount in dispute is less than $2000.

1. Probably the stipulation filed in the case allowing the appellants to complete and perfect the transcript in the case may be regarded as an answer to the first ground of the motion, but if not it is quite clear that the certificate of the clerk of the court must be regarded as prim a facie evidence that the matter of fact alleged in the motion is not well founded. Deficiencies, if any, may be supplied by certiorari.

2. Nor can the motion be sustained for the other reason set forth, as it is certain that the decree against the appellants here in favor of two of the respective appellees exceeds the sum of $2000. True, the sums recovered by the other three appellees respectively were not sufficient to give this court jurisdiction, but the motion is to dismiss the appeal, which must be denied, as the decree in favor of the two libellants first named in the decree is, as it respects each of those, greater than $2000, when the interest allowed by the Circuit Court to the date of the decree is included with the principal. Interest to that date being specifically allowed by the decree must be included with the principal in order to determine what 'the sum or value in dispute was' at the time the appeal was taken and allowed.

MOTION DENIED.

title: The Rio Grande/Opinion of the Court


text: Talk:The Rio Grande/Opinion of the Court


text:
Eldred v. Sexton

ERROR to the Supreme Court of Wisconsin; the case being thus:

An act of Congress, approved April 24th, 1820, laid down the following general law about the public lands:

'The price at which the public lands shall be offered for sale shall be $1.25 an acre, and at every public sale the highest bidder who shall make payment as aforesaid shall be the purchaser; but no land shall be sold either at public or private sale for a less price than $1.25 an acre; and all the public lands which shall have been offered at public sale before the first day of July next, and which shall then remain unsold, as well as the lands that shall thereafter be offered at public sale, according to law, and remain unsold at the close of such public sales, shall be subject to be sold at private sale, by entry at the land office, at $1.25 an acre, to be paid at the time of making such entry as aforesaid,' &c.

This statute being in force as the general regulation about public lands, Congress, by an act of June 3d, 1856, in order to aid the construction of a line of railroad from Fond du Lac, at the south end of Lake Winnebago, in the State of Wisconsin, northerly, to the north line of the said State, granted to the said State of Wisconsin every alternate section of land designated by odd numbers, for six sections in width, on each side of the road. In pursuance of a well-settled policy of the government on the subject, the price of the even-numbered sections remaining to the United States was doubled, and the act declared,

'Nor shall any of said lands become subject to private entry until the same shall have first been offered at public sale at the increased price.'This land grant, by the legislature of Wisconsin, became vested in the Chicago and Northwestern Railway Company, which had, before the 3d of May, 1859, located the line of its road, so that certain lands, the subject of the controversy in this case, were within the prescribed limits. Up to that day they had never been brought into market, but upon that day, by proclamation of the President, they were offered for sale at $2.50 per acre. Not being sold, they remained subject to private entry at that sum. A change in the route of the road being desirable, Congress was asked to authorize it, and this was done by the joint resolution of April 25th, 1862.

The first section of the resolution authorized a change of the location of the line of the railroad.

The third and fourth sections of the resolution were thus:

'SECTION 3. The Secretary of the Interior is hereby authorized to cause all even sections or parts of even sections of public land that may be brought within six miles of the new line of railroad, to be sold at the same price and in the same manner as those have been upon the originally located route. And all purchasers, or their heirs or assigns, within the six-mile limits of the said originally located route who shall be more than six miles from the new line, and who have paid the sum of $2.50 an acre, shall have the right either to exchange their locations upon the line as first established to the new line, upon the same terms, in like quantities, and in the same manner as on the line first established; or, at their option, to enter, without further payment, anywhere within the Menasha land district, in the State of Wisconsin, an additional quantity of public lands subject to private entry, at $1.25 an acre, equal to the quantity entered by them at $2.50 an acre, so that the lands originally entered by them shall thus be reduced to the rate of $1.25 an acre.

'SECTION 4. The even sections of public lands, reserved to the United States by the aforesaid act of June 3d, 1856, along the originally located route of railroad north of the said town of Appleton, and along which no railroad has been constructed, shall hereafter be sold at $1.25 an acre.'A change in the route of the road was made, which left the lands now in question outside of the new limits. After this, but before any public offer of the lands for sale at the reduced price, one Eldred applied to the register and receiver of the local land office, and in 1865 and 1866 was allowed to enter them at the price of $1.25 per acre. The entries, however, were subsequently cancelled by the Commissioner of the General Land Office, on the ground that when they were made the lands were not subject to private entry at such minimum price, and this decision, on appeal, was affirmed by the Secretary of the Interior. On the cancellation of the entries the lands were offered at public sale at the minimum price of $1.25 an acre, and not being sold were subsequently purchased at private entry at that price by one Sexton, to whom patents were issued in 1870.

Hereupon, Eldred filed a bill in one of the State courts of Wisconsin to have Sexton declared a trustee for him, and to have a surrender of the patents, and conveyance of all Sexton's rights to him.

The court decreed against the complainant; and that decree being affirmed in the Supreme Court of the State, the case was brought here by him for review.

The sole question was whether the action, as above stated, of the Commissioner of the General Land Office and of the Secretary of the Interior was correct. If correct, it was conceded that the defendant's title, obtained subsequently, could not be impeached. If incorrect, the defendant was to be treated as a trustee holding the legal title for the plaintiff.

The solution of the question depended, of course, upon the effect to be given to the land-grant legislation, already quoted, for the benefit of Wisconsin.

Mr. J. P. C. Cottrill, for the plaintiff in error:

When and how the public lands shall become subject to private entry at the minimum price does not depend upon any mere practice of the land department of the government, or upon the 'say so' of the public servants who administer that department, but depends upon the enactments of Congress; and when these enactments have been complied with so that the public lands once become subject to private entry, they remain so unless their condition is again changed by force of law. There is no discretionary power reposed in the officers of the land department by which they can say that certain lands shall be in the market subject to private entry to-day, and that to-morrow they shall not be.

Now, confessedly, at the close of the offer of them at public sale, on the 3d of May, 1859, these lands became and remained subject to private entry at the price of $2.50. And they were thus subject to private entry, of course, at that price when Congress passed its explanatory resolution. Now, what does that resolution say? Simply that 'they shall be sold at $1.25 per acre.' Congress of course knew that the even sections within the six-miles limit were in the market, subject to entry at $2.50 an acre. And, having this knowledge before them, it is but respectful to that body to infer that if it had been their intention to withdraw these lands from market and not to subject them to private entry until they had again been offered at public sale at the minimum of $1.25 per acre, they could have expressed such intention in clear terms.

In the second section of the Land-Grant Act of June 3d, 1856, they did not leave it a matter of doubt or construction as to whether the even sections within the six-mile limits of the grant should become subject to private entry, by being first offered at public sale at the ordinary minimum price of $1.25 per acre, as provided by the general law, but expressly enacted that they should first be offered at public sale at the increased price.

The only change, therefore, produced upon these lands by the joint resolution was, we submit, to reduce their price from $2.50 to $1.25 per acre. In other respects they stood in the same condition and situation to which they had been brought by the force of other laws and the acts of the officers and agents of the government under those laws.

Suppose that prior to the passage of the resolution, and while the line remained unchanged, and while the even sections within six miles of that line were in the market subject to private entry at $2.50 per acre, a person had entered a quarter section of land, and paid therefor $2.50 per acre. Now if, after the passage of the resolution and the relocation of the line, this quarter section was not within the six miles of the new line, the person would, under the third section of the resolution, be entitled to enter another quarter section at $1.25 per acre. Now, suppose that he actually entered the additional quarter section, what would be the practical result of the transaction in reference to the first entry? Certainly that the first quarter section, by virtue of the operation of the explanatory resolution, was in effect entered at private entry at $1.25 per acre.

The theory of the government in this land-grant legislation has been, and is, that the public lands within six miles of a railroad would be at least doubled in value by the location and construction of a road so near them, and that such increased value was a compensation to the government for giving the alternate sections to aid in the construction of the road. Hence the price of $2.50 per acre within the six-mile limits has always been deemed the equivalent of $1.25 without those limits. We say, therefore, that the offer of these lands at public sale at the minimum price of $2.50 an acre, while they were within the six-mile limits, was equivalent to an offer of the same at the price of $1.25 when outside of those limits. At the public offer of $2.50 per acre of lands within the six-mile limits the lands had been refused, and there was no sense in offering them, when put by the change outside the limits, at $1.25 per acre. Practically, as we say, they had been offered at that and refused. Congress so viewed the matter, and intended, we submit, that they should not be reoffered.

Nowhere, in all our legislation in reference to the public domain, can a law be found which requires lands that have once become subject to private entry, and the price of which may afterward be changed, to be again offered at public sale, after the change in price, before they shall be subject to private entry, or, in other words, that a mere change in price withdraws lands from market; and if any such requirement exists, it is based wholly upon the practice of the Land Office; a vicious practice as respects these lands, since it is arrayed against a positive enactment of Congress as expressed in the explanatory resolution.

Mr. S. U. Pinney, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Eldred v. Sexton


text: Talk:Eldred v. Sexton

title: Talk:Eldred v. Sexton


text:
Eldred v. Sexton/Opinion of the Court

It is a fundamental principle underlying the land system of this country that private entries are never permitted until after the lands have been exposed to public auction, at the price for which they are afterwards subject to entry.

They are first surveyed, then a day is appointed for their sale by the President, which is to be kept open for two weeks. At this sale they are offered at a minimum price, and cannot be sold for less, but may be sold for as much more as any one will give, and what remains unsold at the close of such sale is subject to entry at that price.

There is an obvious reason for requiring a public sale before leaving the lands open to private entry. It is to secure to all persons a fair and equal opportunity of purchasing them, and to obtain for the government the benefit of competition in case the lands should be worth more than the price fixed by Congress. This system commenced at an early period of our history, and was perfected in 1820. For a period of twenty years, beginning with the commencement of this century, the public lands were sold on credit at not less than two dollars an acre; but the mode of selling on credit working badly, it was in 1820 abandoned, and the price reduced to $1.25 per acre.

Since that time the great body of the public domain has been brought into market, after proper notice, at this reduced price, and, unless Congress by special act ordered otherwise, private entries have never been allowed unless the land applied for had been previously offered at public sale to the highest bidder at the same price. This has been the established practice of the Land Office, sanctioned by the law officers of the government, and recognized by this court as a leading feature in our system of land sales.

The inquiry arises whether Congress intended to change this system in the new policy adopted by it, to aid States by grants of lands to build railroads. This policy is of comparatively recent date, but there is nothing that we are aware, in any of the various acts on the subject, which tend to show that it was the purpose of Congress, in its land-grant legislation, to alter the manner in which the public lands had been brought into market and made subject to private entry. It is true the minimum price of the lands within certain prescribed limits was doubled, on the supposition that the construction of the contemplated roads would enhance the value of the lands to such an extent that the government would be enabled to realize as much for them as if the grants had not been made, but in all other respects the general system for the disposition of public lands was preserved. It is difficult, therefore, to see how the plaintiff can succeed, unless the legislation on which he rests his title was designed to be exceptional, which we think was not the case. The grant was an ordinary one to build a road in Wisconsin, for which a change of route was desirable, after the line had been located. This change was authorized by Congress, but before the line was relocated the lands in question, being within the six-mile limit, had been, at a public land sale, offered for sale at $2.50 per acre, and not being sold, were subject to entry at that price, but not at any less sum. The location of the new route left them outside of the required distance, and legislation was necessary to take them out of the condition of lands affected by the construction of a railroad, and to restore them to the general body of the unsold lands, so that they could be sold in the same manner and at the same price that the public domain is usually subject to sale. This object was accomplished by the joint resolution of April 25th, 1862, which declares that 'these lands should hereafter be sold at $1.25 per acre.' It is contended that this declaration fixed the price absolutely, and subjected them to private entry at that price, without any further proceeding. This proposition is based on the idea that Congress intended to adopt a different rule for the disposition of these lands from that which had always obtained for the disposition of other public lands; but there is nothing in the circumstances of this legislation which tends to prove an intentional abandonment of a long-existing policy. Why make an exception in the case of these lands? There was no exigency requiring it, nor any reason to suppose that Congress had any purpose to place them on a different footing from other government lands for sale at $1.25 an acre. Such a purpose would conflict with the general land system, and disturb its harmony, and cannot be imputed to Congress in the absence of an express declaration to that effect. This system required that all lands should be brought into market, after proper notice, so as to afford competition before being subject to private entry. It is true the lands in question were once offered at public sale at $2.50 an acre, but the reason of the rule required that they should be again offered to the highest bidder, because their condition as to price had been changed, and there had been no opportunity for competition at the reduced price. Congress meant nothing more than to fix $1.25 as their minimum price, and to place them in the same category with other public lands not affected by land-grant legislation. When they were withdrawn from the operation of this legislation, and their exceptional status terminated, the general provisions of the land system attached to them, and they could not, therefore, be sold at private entry, until all persons had the opportunity of bidding for them at public auction.

It follows that the plaintiff's entries were invalid and rightly cancelled, because they were made before the lands had been proclaimed for sale at the minimum price of $1.25 an acre, and that the defendant's entries were in accordance with law, as they were located after the lands had been properly brought into market.

JUDGMENT AFFIRMED.

title: Eldred v. Sexton/Opinion of the Court


text: Talk:Eldred v. Sexton/Opinion of the Court


text: United States v. Gaussen

title: United States v. Gaussen


text: Talk:United States v. Gaussen

title: Talk:United States v. Gaussen


text:
United States v. Gaussen/Opinion of the Court

ERROR to the Circuit Court for the District of Louisiana: the case being thus:

'SECTION 1. That when any revenue officer. . . shall neglect or refuse to pay into the treasury the sum or balance reported to be due to the United States upon the adjustment of his accounts, it shall be the duty of the comptroller to institute suit for the recovery of the same, adding to the sum stated to be due, on such account, the commissions of the delinquent, which shall be forfeited in every instance where suit is commenced and judgment obtained.

'SECTION 2. That in every case of delinquency, where a suit has been or shall be instituted, a transcript from the books and proceedings of the treasury, certified by the register and authenticated under the seal of the department, shall be admitted as evidence, and the court trying the cause shall be thereupon authorized to grant judgment and award execution accordingly.

'SECTION 4. That in suits between the United States and individuals, no claim for a credit shall be admitted upon trial but such as shall appear to have been presented to the accounting officers of the treasury for their examination, and by them disallowed.'

This act being in force, the United States sued Gaussen, executor of Elgee, in the court below, on a bond given in 1845, by Thomas Barrett, as collector of the customers at the port of New Orleans, in which bond Elgee was a surety. The declaration filed by the government referred to a transcript, which was annexed to and made part of it, from the books of the treasury, containing eight certain quarterly reports, numbered 5688, &c., of the first auditor, upon the quarterly accounts of Barrett, as admitted and certified by the comptroller and commissioner of customs, and 'statements of differences' thereon; and also copies of quarterly accounts current rendered by Barrett, the collector, himself. Each class of things covered the whole term that Barrett was in office.

The report of the first auditor and the statement of differences thereon were, as respected the report numbered 5688, in this form; the reports bearing the other numbers being in form very similar:

[No. 5688.]

'TREASURY DEPARTMENT,

FIRST AUDITOR'S OFFICE, June 20th, 1845.

'I have examined and adjusted the accounts of Thomas Barrett, collector of the customs for the district of New Orleans, State of Louisiana, under his bond, dated July 6th, 1844, commencing on the 25th day of July, and ending on the 30th day of September, 1844, and find that he is chargeable with the following sums, viz.:

To duties on merchandise to September 30th, 1844,. $168,645 duties on railroad iron imported in 1836, but the

duties not credited by the collector at that

time,........................... 2,502 ---  $171,148  To duties on tonnage, to September 30th, 1844,.. 171 light money collected, to September 30th, 1844,.. 174 marine hospital money collected, to September 30th, 1844,. 549 Deduct commissions thereon, at one per cent.,. 5 -  544  interest received on goods in store, to September 30th, 1844, interest received on bonds for duties on railroad iron,. 662 44................................................

- 747  amount received for fines, penalties, forfeitures,

on account of Thomas Gibbes Morgan, late collector,

collected and retained by him and placed to the

credit of the United States, in account now stated,

and for which said Morgan will receive credit,.. 16 -

$172,802 'I also find that he is entitled to the following credit, viz.:

By payments to inspectors, &c., to September 30th, 1844,. $18,844 contingent expenses paid, to September 30th,1844,.. 783 disbursements for the revenue cutter Woodbury, to September

30th, 1844,.......................... 3,956 disbursements for the revenue cutter Vigilant, to September 30th, 1844,.............................. 48 disbursements for the revenue boats, to September 30, 1844, .............................. 840 disbursements in relation to appraisements, to September 30th, 1844,.................................... 1,177 balance of public store account, to September 30th, 1844, .............................. 716 debentures paid on merchandise exported, to September 30th, 1844,.................................... 15,994 fines, &c., costs of suits, to September 30th, 1844,.. 542 duties on merchandise refunded to correct errors, to September 30th, 1844,.............................. 672 duties on tonnage refunded to correct errors, to September 30th, 1844,.............................. 101 amount paid for extra clerk hire in the office of the naval officer,................................. 368 amount paid George Royster, collector of Teche, per order of

the comptroller of the treasury, dated July 23d, 1844, and

with which said Royster has been debited, per report No. 5387, .............................. 200 amount paid Willis H. Arnold, collector of Pearl River, per

order of the comptroller of the treasury, dated 7th August,

1844, and with which said Arnold has been debited, per report No. 5324,................................ 75 By three months' salary-

To the naval officer, to September 30th, 1844,. $62 To the surveyor of New Orleans, to September 30th, 1844, 62 To the surveyor of Bayou St. John, to September 30th, 1844, 62 To the surveyor of Port Pontchartrain, to September 30th, 1844,............................. 62 To the surveyor of Madisonville, to September 30th, 1844, 62 By three months and 17 days' salary to the surveyor of

Lafayette, from 14th June to 30th September, 1844, at $250 per annum,............................ 74 -- 386  amount of warrant No. 3152, in favor of the treasurer, dated

September 30th, 1844,................ 83,164 commissions on $127,816.22 at one per cent,.. 1,278 And that the balance due to the United States on the 1st day of

October, 1844, amounted to,........... 43,652 -

$172,802 Page 'As appears from the statement and accounts herewith transmitted for the decision of the comptroller of the treasury thereon.

(Signed) 'WILLIAM COLLINS,

'First Auditor.

'TO JAMES W. McCULLOH, ESQ., First Comptroller of the Treasury.'

Auditor's balance is,........... $43,652 Add this sum, amount of difference, to the debit of the

collector, as per corrected statement,. 10 Balance due to the United States,. $43,662. 'COMPTROLLER'S OFFICE.

'Admitted and certified to the above as corrected 7th day of August, 1845.

(Signed) 'J. W. McCULLOH, Comptroller.

'R. H. GILLETT, ESQ., Register of the Treasury.'

Thomas Barrett, under his bond, dated July 6th, 1844, in account

with the United States.

DR.

To duties on merchandise, to September 30th, 1844,  $168,645 duties on railroad iron imported in 1836,

but the duties not credited by the

collector at that time,. 2,502 .....................---.$171,148  duties on tonnage, to September 30th, 1844,   171 light money collected, to September 30th, 1844,  174 marine hospital money collected,. 549 Deduct commission thereon, at one per cent.,  5 .....................---.544 interest received on goods in store, to September 30th, 1844, 85 interest received on bonds for duties on railroad iron, 662 .................... ---.747  amount received for fines, penalties, and

forfeitures on account of Thomas Gibbes Morgan,

late collector, collected and retained by him and

placed to the credit of the United States, in

account now stated, and for which said Morgan will

receive credit,................ 16 -

$172,802 -

CR.

By payments to inspectors, &c., to September 30th, 1844, ..................... $18,844 contingent expenses paid, to September 30th, 1844, ......................... 783 disbursements for the revenue cutter Woodbury, to September 30th, 1844,......................... 3,956 disbursements for the revenue cutter Vigilant, to September 30th, 1844,......................... 48 disbursements for the revenue boats, to September 30th, 1844, ......................... 840 disbursements in relation to appraisements, to September 30th, 1844,......................... 1,177 balance of public store account, to September 30th, 1844, ......................... 716 debentures paid on merchandise exported, to September 30th, 1844,............................... 15,994 fines, &c., costs of suits, to September 30th, 1844, ......................... 542 duties on merchandise refunded to correct errors, to September 30th, 1844,............... 672 -

$43,575 Page Amount brought forward, .........$43,575 To duties on tonnage refunded to correct errors, to September 30th, 1844,.........................101 amount paid for extra clerk hire in office of the naval officer, ...........................368 amount paid George Royster, collector of Teche, per order of the comptroller

of the treasury, dated July 25th, 1844, and with which said Royster has

been debited, per report No. 5387, ..$200 amount paid Willis H. Arnold, collector of Pearl River, per order of the comp-

troller of the treasury, dated 7th August, 1844, and with which said Arnold

has been debited, per report No. 5324,..75 By three months' salary-

To the naval officer, to September 30th, 1844, .$62 To the surveyor of New Orleans, to September 30th, 1844, 62 To surveyor of Bayou St. John, to September 30th, 1844, 62 To the surveyor of Port Ponchartrain, to September 30th, 1844, 62 To the surveyor of Madisonville, to September 30th, 1844, 62 By three months and 17 days' salary to the surveyor of Lafayette,

from 14th June to 30th September, 1844, at $250 per annum, 63 Page

Statement of the case.

Amount brought forward, $1,378 21    $39,507 These bills are chargeable in account for building new marine hospital[ which is now being

stated in the Auditor's Office], (red).

Add amount paid, two bills, New Orleans Republican,

advertising unclaimed goods; must

be paid out of (No. 7,  700  proceeds of sales, ( " 11,    580      1,280  Add amount paid D. W. Noble's bill, subscription to

daily New Orleans Herald,...... 5 Add amount paid J. Beardue's bill, subscription

to N. O. Cornell, Bulletin,... 12        17  [  Payable out of official emol'ts], (red).

Add amount paid Whiting & Shimmerhorn's bill,

carriage hire, chargeable to lighthouse

account,............................. #fn-s-s—7 7 Add amount charged for payment to G. W. Lewis, as

inspector at Natchitoches; a bill receipted

by Lewis himself, accompanied with the

usual affidavit, is required,........ * * 822  Add amount paid R. Coudon's bill, keeping a horse

for the captain of night watch, disallowed,.. * * 15  Add amount of Bailie Peyton's (dist. att'y) bill of fees, No. 5, $459 And his bill of fees, No. 17; judge's certificate of probable cause wanted,.................. 255  *  * 714  Add amount overpaid D. Clark, surveyor of Lafayette,

from 29th [ appointed 14th] June, 1844,

date of oath, to 30th September, 1844, is

three months and [ seventeen] two days,

at $250 per annum,................... * * 170 Page Amount brought forward  $5,685.35  $39,507. Add amount charged for treasury note and interest; will be brought

to his credit in the next statement of his account, 565. Add commissions overchaerged in this account now stated, 31.28 Amount brought forrward $161,749.

By amount of deposits above mentioned, made to secure duties on entries be-

longing to this quarter,8,973.

By amount of duties on tonnage, $185.

B. By amount of light money,  160.

346.

By amount of marine hospital dues, $549.

C. Less commission, one per cent, 5.

544.

D. By amount of interest received,   83.

E. By amount received on account of G.Dorsey, late collector, 51.

F. By amount on account fines, forgfeitures, and penalties, this sum unpaid

and due to T.G. Morgan, late collector, 16.

$171,764. Treasurer of the United States.

Dr.

To remittances, as foolows:

Treasury notes and interest cancelled and returned to Secretary of Treasury,  $565.

In certificaters of deposits in Bank of Louisiana, 80,000.

To commissions on remittances and payments to officer of the customs, &c.,

$129,624.85    1,309.

To balance,  39,507.

Cr.

By balance brought down from above account, $121,382.

$121,382.

By balance brought down,     $39,507.

THOMAS BARRETT, Collector.

COLLECTOR'S OFFICE,

NEW ORLEANS, 30th September, 1844.

Indorsed: 'The United States in account current with Thomas Barrett, from 25th July to 30th September, 1844. E.'

In one of the reports of the auditor there was an entry thus:

'I also find that he is entitled TO CREDIT, as follows, by amount of the following sums:

Balance of his account of official emoluments from 1st July, 1844, to 12th October, 1845, as per report No. 6771, $16,529 75'

There was no report No. 6771 in evidence.

The whole of these records (that is to say, reports of the first auditor, the statement of differences, and the quarterly accounts current of Barrett himself), were attached together and certified by one certificate of the register and by one impression of the seal of the treasury, to be true copies of the said reports of the first auditor, of the said statement of differences, and of the said quarterly accounts current of Barrett.

On the trial the government offered as evidence the copies of the reports of the First Auditor, numbered respectively 5688, &c., and also of the statements of differences thereon, 'all of said papers,' said the bill of exceptions, 'being fastened together as a whole and embraced in one certificate; all of which more fully and at large appears by the said transcript of said report and adjustment of account filed in this cause with the plaintiff's petitioner therein.'

The defendant, 'while making no objection to the form or substance of the certificate by which the authenticity of such transcript was attested,' objected to the same on the grounds—

'That the act of the 3d of March, 1797, which makes transcripts from the books and proceedings of the treasury evidence, only applies to public defaulters in terms, and, being in derogation of common right and penal in its character, cannot be extended by construction so as to make such transcripts evidence against the sureties of such defaulters or the legal representatives of deceased sureties.

'That the said reports, which, together with the quarterly returns, constituted an entire document (said reports and returns being fastened together and authenticated by one and the same certificate), were fragmentary, incomplete, and partial.

'That the reports and statements of differences charged Barrett with gross sums and balances without any detail or exhibition of the items of which they were composed, as, for instance, in report No. 5688, a gross sum of $2502.24 is charged against him for 'duties on railroad iron imported in 1836, and not credited by the collector at the time.'

'That it disallowed gross sums, and subtracted gross sums on and from the credit side of Barrett's account without any detail or specification of the items disallowed. That, ex. gr., by comparing quarterly return for the third quarter of 1844 with report No. 5688 and the statement of differences, it will appear that Barrett claimed credit for $4394.65 for contingent expenses. He was allowed only $783.46 in the report, $3611.19 being disallowed, but the detail of the items disallowed, as appeared by the statement of differences, amounts to only $3239.13, and there is no detail or specification of the balance of the $3611.19 disallowed, nor is there any information explanation in the transcript of what composes that balance, or why it was disallowed.

'And further, that the said reports and statements of differences did not contain or exhibit the accounts as they were presented to and acted upon by the accounting officers of the department, nor their action nor their proceedings relative thereto.'

The court held the objections good, and rejected the evidence.

The government afterwards offered in evidence certified copies of the several quarterly statements of accounts rendered by Barrett himself to the United States, 'which said certified copies aforesaid were and are on file in the suit, having been filed with the petition and contained in the said document, marked and already made part of this bill of exceptions.'

This evidence was objected to on the ground that the said statement was not legal proof of the existence of a debt by Barrett, did not tend to prove the same, and was not competent evidence thereof, and that the same were fragmentary and incomplete. This evidence was excluded, and the plaintiff excepted to the ruling.

Verdict and judgment having gone for the defendant, the government brought the case here.

Messrs. J. M. Carlisle and J. D. McPherson, in support of the ruling below:

1. The reports of the auditor and accompanying statements of differences were not admissible in evidence separately from the quarterly returns.

Not everything which a treasury officer chooses to write upon the books of the treasury thereby becomes evidence under the act of March 3d, 1797. Those matters of which the treasury officers have official knowledge, and which upon such knowledge they have recorded in the books of the treasury, thereby become evidence. But when those officers ascertain facts by evidence, that evidence becomes part of their proceedings, and their conclusions, apart from the evidence upon which they are founded, are not evidence.

In the present case the auditor's reports contained debits of large sums received as duties upon imports by the collector at New Orleans-a matter of which the auditor had no official knowledge and although annexed to the transcript containing those reports there were copies of the returns containing the evidence on which those debits were entered against the collector, the attorney for the plaintiff sought to introduce the auditor's reports without the said returns. When, for instance, the auditor, in settlement No. 5688, certified that he had examined the accounts of Thomas Barrett, collector, &c., and found he was chargeable with $168,645.76 duties on merchandise to September 30, and with $2502.24 'duties on railroad iron imported in 1836, but such duties not credited by the collector at that time,' the accounts so examined, as well as the result of the examination, were part of the proceedings. The report of the auditor purports to find its facts in the accounts rendered by Barrett, and had it been admitted in evidence the defendant would have been put to proof that the duties accrued in 1836 had not been received by him within the period covered by the bond. Whereas, had the accounts themselves been put in evidence as part of the proceedings, it would have been found that no such amount was acknowledged therein, and that the 'finding' of the first auditor was without any evidence to support it.

With each report of the auditor is a 'statement of differences,' purporting to show in what particulars the amount stated by the auditor differs from that rendered by the collector. It begins by setting down 'the balance due the United States per his account ending' at such date, and this balance is increased by the addition of such sums as the collector has taken credit for, but which the auditor has refused to allow. It is only by comparing this statement with the original account rendered that the matters of difference between the parties can be understood. And any paper which was passed upon by the auditor and is necessary to a correct understanding of the action of the auditor, is a part of the proceedings.

For example: In the report already cited, No. 5688, the collector is credited with contingent expenses $783.46, and in the statement of differences it is stated that $3239.13 have been disallowed, thus accounting for $4022.59 as if it were the whole amount charged by the collector; but on looking at his account (on page 204), it is seen that he has charged for contingent expenses $4394.65, and the auditor has thus failed to consider and pass upon ($4394.65 less $4122.59) $372.06, either by allowance or disallowance.

This example, taken from the bill of exceptions, was brought to the notice of the court when the transcript was excluded.

2. The quarterly returns were not admissible in evidence without the auditor's reports.

The defendant is entitled to the benefit of all credits allowed by the accounting officers. But as credits claimed, if not admitted by the accounting officers, must be proven, then it follows that to admit the quarterly returns without the auditor's reports would be to deny the defendant the benefit of all credits given him at the treasury, and put him to proof of all the credits anew. This would have been a great hardship and one which no court would impose, especially if, as stated in the bill of exceptions, the reports thus omitted contained credits which do not appear in the quarterly returns, but do appear first in the settlements made after the collector's death, and which with other settlements the United States declined to offer with the quarterly returns.

3. But if the plaintiff had offered in evidence the complete transcript of which they offered parts, it would not have been admissible.

It is on its face fragmentary and imperfect, and it moreover contains items not within the scope of the liability of surety on whose bond the suit was brought. We assume that under the act of 1797, which alone makes such a transcript evidence, the transcript must contain, 1st, all the proceedings; 2d, a decision either of allowance or disallowance of all claims to credit, which have been submitted to the accounting officers; 3d, debits manifestly and clearly not within the scope of the account settled and adjusted.

Now in this case,

1. The transcript was incomplete.

In one of the settlements is a gross amount brought into the account as

'Balance of his account of official emoluments from 1st July, 1844, to 12th October, 1845, as per report No. 6771, $16,529.73.'

Such a transcript was rejected in United States v. Paterson. A 'balance' implies debits and credits, but the report No. 6771, in which they are contained, is not produced; and the transcript thus on its face is fragmentary and imperfect, and shows that there has been a settlement with the collector which is not contained in the transcript. It is unimportant that the unproduced settlement resulted in a credit. There are debits in it, as appears by the result being a 'balance,' and the mischief is the same whether debits be unjustly charged, or credits be unjustly withheld.

2. In the instance cited on p. 209, from report No. 5688, the collector had claimed credit for large disbursements on account of contingent expenses. Portions of these were allowed in gross, and other portions rejected, and still other portions are not specially either allowed or rejected.

The act of 1797 declares that no credit, not allowed by the accounting officer, shall be allowed on the trial, unless it has been presented to the accounting officer, 'and disallowed,' or has not been presented by reason of accident or absence from the United States. It results from this provision that the officer is entitled to the decision of the accounting officers on every item, and this court so ruled in United States v. Jones.

In these cases where the accounting officers have failed to account for more than a small part of the difference between the amount charged by the collector and that admitted by the auditor, it is manifest that, in order to obtain credit for the part rejected, the defendant must prove the whole, for as he cannot identify the part admitted, if he prove any amount less than the whole, the part already admitted will be deducted from it, and he will lose the balance.

3. There are debits in the transcript not within the scope of the liability sought to be enforced. One is seen in the report No. 5688, where there is a charge of duties on railroad iron imported in 1836, and as we understand the entry, paid in 1836, but 'not credited by the collector at that time.'

A transcript containing such an item is not admissible in evidence against a surety on a bond dated in 1844.

Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice HUNT delivered the opinion of the court.

The act of March 3d, 1797, proceeds upon the theory that the officers of the United States shall make up the account of every revenue officer, that it shall adjust the same on its books, and that the account thus stated and adjusted shall stand as and for the sum for which such officer shall be liable to the government. This no doubt is subject to correction by such competent evidence as may be produced. In other words, the statement is prim a facie evidence only, not absolute and conclusive.

In furtherance of this idea it is the duty of the comptroller at once to institute suit for the recovery of the balance thus found and stated. A second result, and one indispensable to the existence of the theory, is, that the books shall be evidence of the truth of the amounts thus stated and declared to be due to the United States. The act, therefore, provides that a transcript from these books and proceedings shall be admitted in evidence, and that, thereupon, the court is authorized to proceed to judgment and execution.

In the present case 'copies of the report of the first auditor,' numbered respectively 5688, &c., and eight in number, were offered in evidence. The bill of exceptions states that no objection was made to the manner in which they were certified.

The suggestion that the act is applicable to a defaulting principal, and not a surety, is not pressed and need not be considered.

The objection that the reports were fragmentary and incomplete is not sustained by the facts. As presented in the record each report is complete and perfect in itself. Each report contains all upon the subject during the time that it purports to represent. In the aggregate they cover the whole period of Barrett's service. The statute says that a transcript from the books shall be admitted as evidence. A transcript or a transcribing is substantially a copy. A copy from the books, and not of the books, shall be admissible in evidence. An extract from the books, a portion of the books, when authenticated to be a copy, may be given in evidence. While a garbled statement is not evidence, or a mutilated statement, wherein the debits shall be presented and the credits suppressed, or perhaps a statement of results only, it still seems to be clear that it is not necessary that every account with an individual, and all of every account, shall be transcribed as a condition of the admissibility of any one account. The statement presented should be complete in itself, perfect for what it purports to represent, and give both sides of the account as the same stands upon the books.

Nor is the objection that the reports charge Barrett with gross sums and with balances without giving details, sustained by the facts.

The reports are made up with much particularity, and give the items on each side of the account. It is not a case of a certificate of balances merely. We are not authorized, however, to regulate the manner in which the departments shall keep their books, or to prescribe the minuteness of the detail. The items in these reports are manifestly made up from statements and details of the daily business furnished by the collector. They are necessarily condensed when carried to a ledger account, and the results of many items or of some considerable period of time, may be stated in a briefer from than they stood upon the original entries. The means of particular information are open to either party. We see no objection on this ground to the evidence now presented, and are of the opinion that there was error in its exclusion.

There was error also in excluding the evidence of the accounts rendered by Barrett, the principal. They seem to be complete, not partial or fragmentary as alleged, and being statements made by him to the government in the performance of his official duty, they are evidence against the party making them not only, but his sureties as well, and against third persons in privity with him. The authorities place the rule upon the ground 1st, that the entries made are against the interest of the party making them; and 2dly, that a surety is bound by the acts and declarations of his principal, being within the scope of the business, as a part of the res gestae.

JUDGMENT REVERSED, AND A NEW TRIAL ORDERED.

1 1 Stat. at Large, 512. * 64 376 37 * 386  amount of warrant No. 3152, in favor of the treasurer, dated September 30th,

1844,...........................83,164 commission on  $127,805.82 [ * $127,816.22] at one per cent., ...................... 1,278 06 * 1,278  balance due the United States,. . 43,662  *

$172,802 'TREASURY DEPARTMENT,

FIRST AUDITOR'S OFFICE, June 19th, 1845.

'Examined and stated by—

(Signed) 'J. COLGATE.'

'COMPTROLLER'S OFFICE, July 21st, 1845.

(Signed) 'J. BARTRAM WORTH.'

W. A. W.

[Statement of Differences.]

The balance due to the United States, per his account ending September 30th, 1844,.................. $39,507 Add amount overcharged for payments to inspectors, &c., viz:

Overpaid N.C.Snethen for making other articles than spirits, cordials, wines, &c.

[% will be all'd on next qr.ac.] (red),. $653 Overpaid S. Boyer, weigher, his fees for weigher, amt'g to

$440.61, charged $951.62,... 511 ---   $1,164  Add amount erroneously charged to contingent expenses:

Amount paid J. Royalls, bell-keeper of new

marine hospital,............ $75 Amount paid New Orleans Republican, advertising

proposals for ditto,.......... 12 Amount paid J. H. Dakins, architect, bill of

drawings for ditto,.......... 75 Amount paid Graham & Williams's bill,

printing specifications of

builders work,............... 40 Amount paid New Orleans Republican,

advertising postponement

of proposals,................ 11 --- *  * 213  ---   --

1,378 21 $39,507  -- * Erased

Interlined in red. * * See infra, p. 207, note *  *. * 159 Add amount overcharged for disbursements for revenue

cutter Woodbury, viz:

amount paid Joseph Dyer's bill, for meat and vegetables, &c., disallowed,..................... 26 amount paid Hitchcocks & Brothers' bill, for beef, bread, groceries, &c., disallowed,.... 104 amount paid P. Gernon's bill, for arresting deserters, disallowed,..................... 50 amount paid J. D. Usher, third lieutenant, for month of September, and also ent'd

in pay-roll for September, and charged in account for fourth quarter, 1844,.................. 65 amount charged per order of Captain Foster, in favor of Noel Barrett; not receipted,......... 20       266  Add amount charged for payment to deputy collector of Natchitoches; payable [ * out of

official emoluments]. Revenue, as per order of secretary, 10th

September, 1844, and will be allowed in next acc't,  630 Add amount overcharged to public store account, viz.:

amount overpaid W. H. Wilder, storekeeper, from 25th July to 30th September, 1844.

(Authority wanted for increase of pay),. $74 amount of extra pay to J. E. Quere, late storekeeper, disallowed,.................... 113 amount of extra pay to E. Wiltz, deputy storekeeper, disallowed, 93 amount overpaid E. Wiltz, deputy storekeeper, for third quarter, 1844............................ 92 Add subscription to Louisiana Courier, disallowed,  12 Amount brought forward    384 -     --

5,685 35  $39,507  -- * Erased

Interlined in red. * * See infra, p. 207, note *  *. * 31. 6,282.34 * 6,271.94 * 45,779. 45,789. Deduct amount credited for moneys received on account of G. Dorsey

late collector (must be settled betgween them), $51. Deduct amount erroneously credited, in account now stated, for de-

posits to secure duties, 2,076. $43,662.56 * 43,652.

The quarterly account rendered by Barrett, during the quarter to which the above copied report and statement of differences applied, was in this form, the other quarterly accounts being essentially like it:

    The United States in account current with Thomas Barrett, collector of the customs for the district of New Orleans, from the 25th of July to the      30th of September, 1844, in the third quarter of the year 1844.

Dr.

1. To payments of debentures,$15,994.

2. To payments to inspector, weigher, measurer, marker, and guager,20,009.

3. To payments to revenue boats and boatment,  840.

4. To payments on account of contingent expenses,  4,394.

5. To payment payments to clerks in the naval office,  368.

6. To payment naval officer and surveyors, for salary,  546.

7. To payment payment on account United States revenue cutter Woodbury,      4,223.

8. To payment on account of appraiser's office  1,177.

9. To amount refunded to correcterrors in duties on merchandise,  773.

10. To payment to deputy collector, Natchitoches, 630.

11. To payment to collector at Teche, 200.

12. To payment to collector at Shieldsborough, 75.

13. To payment on account United States schooner Vigilant, 48.

14. To payment on account of public stores, 1,101.

$171,764.

Cr.

By amount of duties on goods impoorted this quarter:

In vessels of the United States, $152,252.

$168,645.

A. Less this amount unsettled entries, belonging to this quarter, the

deposits on which appear below, 6,896.

$161,749.


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