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

'Every person having a husband or wife living, who marries     another, whether married or single, in a Territory or other      place over which the United States has exclusive      jurisdiction, is guilty of bigamy, and shall be punished by a      fine of not more than five hundred dollars and by      imprisonment for a term not more than five years.'

The plaintiff in error was indicted under this section in the Third District Court of Utah, at Salt Lake City. He was convicted. He appealed to the Supreme Court of the Territory, where the judgment of the District Court was affirmed.

That judgment is now brought to this court for review upon writ of error.

The indictment charged that the plaintiff in error, John Miles, did, on Oct. 24, 1878, at Salt Lake County, in the Territory of Utah, marry one Emily Spencer, and that afterwards, and while he was so married to Emily Spencer, and while she was still living, did, on the same day and at the same county, marry one Caroline Owens, the said Emily Spencer, his former wife, being still living and at that time his legal wife.

The criminal procedure of Utah is regulated by an act of the territorial legislature, passed Feb. 22, 1878. The following are the sections pertinent to this case, which prescribe the rules for the impanelling of juries:--

'SECT. 241. A particular cause of challenge is:--

'1. For such a bias as, when the existence of the facts is     ascertained, in judgment of law, disqualifies the juror, and      which is known in this act as implied bias.

'2. For the existence of a state of mind on the part of the     juror which leads to a just inference, in reference to the      case, that he will not act with entire impartiality, which is      known in this act as actual bias.

'SECT. 246. If the facts are denied, the challenge must be     tried as follows: (1.) If it be for implied bias, by the      court; (2.) If it be for actual bias, by triers.'

'SECT. 247. The triers are three impartial persons, not on     the jury panel, appointed by the court. All challenges for     actual bias must be tried by three triers thus appointed, a      majority of whom may decide.'

'SECT. 249. Upon the trial of a challenge to an individual     juror, the juror challenged may be examined as a witness to      prove or disprove the challenge, and must answer every      question pertinent to the inquiry.'

'SECT. 250. Other witnesses may also be examined on either     side, and the rules of evidence applicable to the trial of      other issues govern the admission or exclusion of evidence on      the trial of the challenge.'

'SECT. 252. On the trial of a challenge for actual bias, when     the evidence is concluded, the court must instruct the triers      that it is their duty to find the challenge true, if, in      their opinion, the evidence warrants the conclusion that the      juror has such a bias against the party challenging him as to      render him not impartial; and that if, from the evidence,      they believe him free from such bias, they must find the      challenge not true; that a hypothetical opinion unaccompanied      with malice or ill-will, founded on hearsay or information      supposed to be true, is of itself no evidence of bias      sufficient to disqualify a juror. The court can give no other     instruction.'

'SECT. 253. The triers must thereupon find the challenge     either true or not true, and their decision is final. If they     find it true, the juror must be excluded.'

Upon the trial of the case in the District Court of the Territory, Oscar Dunn and Robert Patrick were called as jurors. They were challenged for actual bias, and sworn upon their voire dire. Three triers were appointed by the court to pass upon the challenges to the jurors. Dunn, in answer to questions propounded to him, testified that he believed polygamy to be right, that it was ordained of God, and that the revelations concerning it were revelations from God, and that those revelations should be obeyed, and that he who acted on them should not be convicted by the law of the land.

The juror was challenged by the prosecution 'for actual bias for the existence of a state of mind on his part which led to a just inference that he would not act with entire impartiality.'

The triers found the challenge true, and the juror was rejected.

Robert Patrick was examined on his voire dire, and testified that he believed that the revelation given to Joseph Smith touching polygamy came from God, that it was one of God's laws to his people, and that he who practised polygamy, conscientiously believing that revelation to be from God, was doing God's will. He also testified that, in his opinion, the law of Congress was in conflict with that law of God; that Congress had the right to pass such a law; and that on the trial of a person who was in the practice of polygamy charged with bigamy he would consider it his duty, if satisfied by the evidence, to find the defendant guilty, and that he would do so.

The juror was challenged for actual bias, and the triers found the challenge true, and the juror was excused. A large number of other jurors were examined and challenged, and excused on the same grounds.

Upon the trial, evidence was given tending to show that a short time before the date laid in the indictment, Oct. 24, 1874, the plaintiff in error was in treaty for marrying, at or about the same time, three young women, namely, Emily Spencer, Caroline Owens, and Julia Spencer, and that there was a discussion between them on the question which should be the first wife; and that upon appeal to John Taylor, president of the Mormon Church, the plaintiff in error and the three women being present, it was decided by him that Emily Spencer, being the eldest, should be the first wife; Caroline Owens, being the next younger, the second; and Julia Spencer, being the youngest, the third wife;-that being according to the rules of the church.

It appeared further that marriages of persons belonging to the Mormon Church usually take place at what is called the Endowment House; that the ceremony is performed in secret, and the person who officiates is under a sacred obligation not to disclose the names of the parties to it.

It further appeared that on Oct. 24, 1878, the plaintiff in error was married to the said Caroline Owens, and that on the night of that day he gave a wedding supper at the house of one Cannon, at which were present Emily Spencer, Caroline Owens, and others. Evidence tending to establish these facts having been given to the jury, the court permitted to be given in evidence the declarations made by the plaintiff in error, on that night, in presence of the company assembled, and on subsequent occasions, to the effect that Emily Spencer was his first wife.

Sect. 1604 of the Compiled Laws of Utah declares: 'A husband shall not be a witness for or against his wife, nor a wife a witness for or against her husband.'

Upon the trial, and after the evidence above recited had been given, tending, as the prosecution claimed, to prove the marriage of the plaintiff in error to Emily Spencer just before his marriage to Caroline Owens, the latter was offered as a witness against him to prove the same fact.

Thereupon the defendant admitted, in open court, the charge of the indictment that he had been married to Caroline Owens, and enen offered testimony to prove it; but this was ruled out by the court.

The defendant, therefore, objected to the introduction of Caroline Owens as a witness against him, the objection being based on the statute just quoted.

The court overruled the objection and admitted her as witness, and she gave testimony tending to prove the marriage of the plaintiff in error to Emily Spencer previous to his marriage with the witness.

It appeared from the evidence that the name of Caroline Owens's father was Maile, but that she had been adopted by an uncle and aunt named Owens, and had taken their name, by which she was called and known, but that, when she was baptized in the Mormon Church, she was required to be baptized in her father's name, and was married to Miles under that name.

The court, among other things, charged the jury as follows:--

'If you find from all the facts and circumstances proven in this case, and from the admissions of the defendant, or from either, that the defendant Miles married Emily Spencer, and while she was yet living and his wife he married Caroline Owens, as charged in the indictment, your verdict should be guilty.

'A legal wife cannot, but when it appears in a case that the witness is not a legal wife, but a bigamous or plural wife, then she may testify against the bigamous husband, and her testimony should have just as much weight with the jury as any other witness, if the jury believe her statements to be true. And her evidence may be taken like the evidence of any other witness to prove either the first or second marriage. And so in this case you are at liberty to consider the testimony of Miss Caroline Owens, if you find from all the evidence in the case that she is a second and plural wife, and give it all the weight you think it entitled to, and may use it to prove the first marriage alleged, to wit, the marriage of defendant and Emily Spencer, or any other fact which in your opinion is proven by the testimony, if you believe it, as you do the testimony of any witness to prove any fact about which she has testified.

'The prisoner's guilt must be established beyond reasonable doubt. Proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind to a moral certainty that the fact exists that is claimed to exist, so that you feel certain that it exists. A balance of proof is not sufficient. A juror in a criminal case ought not to condemn unless the evidence excludes from his mind all reasonable doubt; unless he be so convinced by the evidence, no matter what the class of the evidence, of the defendant's guilt, that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interests.'

The plaintiff in error alleges as ground of error the exclusion from the jury of Oscar Dunn, Robert Patrick, and others of the Mormon faith. He claims that the examination of the proposed jurors, and the rulings of the court, show that it was the deliberate purpose of the court to exclude from the jury every one who was of the Mormon faith. He insists that neither the court nor counsel had the right to inquire into the religious belief of the juror.

There is no complaint that the jury was not a fair and impartial one, or that any juror impanelled was disqualified.

Whether the exclusion of qualified jurors from the panel is a ground for setting aside the verdict and judgment on error, we do not find it necessary to decide.

It is insisted on behalf of the defendant in error that the excluded jurors were not qualified to sit in the case. In impanelling the jury the court was bound to follow the law of the Territory on that subject. Clinton v. Englebrecht, 13 Wall. 434; Reynolds v. United States, 98 U.S. 145.

The jurors excluded were objected to by the prosecution as disqualified from serving for actual bias.

The challenge for actual bias was tried by the triers appointed by the court, in accordance with the law of the Territory. The triers found the challenge true. By the same law their decision is declared to be final, and thereupon the jurors challenged must be excluded. The law was carefully followed. The jurors were found disqualified, and were, therefore, as required by the law, excluded from the panel.

It is evident from the examination of the jurors on their voire dire, that they believed that polygamy was ordained of God, and that the practice of polygamy was obedience to the will of God. At common law, this would have been ground for principal challenge of jurors of the same faith. 3 Bla. Com. 303. It needs no argument to show that a jury composed of men entertaining such a belief could not have been free from bias or prejudice on the trial for bigamy, of a person who entertained the same belief, and whose offence consisted in the act of living in polygamy. But whether the evidence of bias was sufficient or not, it was so found by the triers, and that was conclusive.

Whether or not that bias was founded on the religious belief of the juror, is entirely immaterial, if the bias existed. It has been held by this court, that on an indictment for bigamy it was no defence that the doctrines and practice of polygamy were a part of the religion of the accused. Reynolds v. United States, supra.

It could not, therefore, be an invasion of the constitutional or other rights of the juror called to try a party charged with bigamy, to inquire whether he himself was living in polygamy, and whether he believed it to be in accordance with the divine will and command.

If the jurors themselves had no ground of complaint, it is clear the defendant had none.

We find nothing in the record in relation to the impanelling of the jury which would have required the Supreme Court of the Territory to set aside the verdict and the judgment of the District Court.

It is next assigned for error, that the court admitted the declarations and admissions of the plaintiff in error to prove the fact of his first marriage, and the charge of the court that the declarations of the accused were evidence proper to be considered by the jury as tending to prove an actual marriage, and that such marriage might be proven like any other fact, by the admissions of the defendant, or by circumstantial evidence, and that it was not necessary to prove it by witnesses who were present at the ceremony.

To hold that, on an indictment for bigamy, the first marriage can only be proven by eye-witnesses of the ceremony, is to apply to this offence a rule of evidence not applicable to any other.

The great weight of authority is adverse to the position of the plaintiff in error.

In Regina v. Simmonsto (1 Car. & Kir. 164), it was held that, on an indictment for bigamy, the first marriage may be proved by the admissions of the prisoner; and it is for the jury to determine whether what he said was an admission that he had been legally married according to the laws of the country where the marriage was solemnized.

The same view is sustained by the following cases: Regina v. Upton, cited in 1 Russell, Crimes (Greaves's ed.), 218; Duchess of Kingston's Case, 20 How. State Trials, 355; Truman's Case, 1 East, P. C. 470; Cayford's Case, 7 Me. 57; Ham's Case, 11 id. 391; State v. Libby, 44 id. 469; State v. Hilton, 3 Rich. (S.C..) 434; State v. Britton, 4 McCord (S.C..), 256; Warner v. Commonwealth, 2 Va. Cas. 595; Norwood's Case, 1 East, P. C. 470; Commonwealth v. Murtagh, 1 Ashm. (Pa.) 272; Regina v. Newton, 2 Moo. & R. 503; State v. McDonald, 25 Miss. 176; Wolverton v. State, 16 Ohio, 173; State v. Seals, 16 Ind. 352; Quin v. State, 46 id. 725; Arnold v. State, 53 Ga. 574; Cameron v. State, 14 Ala. 546; Brown v. State, 52 id. 338; Williams v. State, 44 id. 24; Commonwealth v. Jackson, 11 Bush (Ky.), 679.

The declarations of the plaintiff in error touching his marriage with Emily Spencer, admitted in evidence against him, appear to have been deliberately and repeatedly made, and under such circumstances as tended to show that they had reference to a formal marriage contract between him and her.

We are of opinion that the District Court committed no error in admitting such declarations, or in its charge to the jury concerning them.

The charge of the court defining what is meant by the phrase 'reasonable doubt' is assigned as ground of error.

The evidence upon which a jury is justified in returning a verdict of guilty must be sufficient to produce a conviction of guilt, to the exclusion of all reasonable doubt. Attempts to explain the term 'reasonable doubt' do not usually result in making it any clearer to the minds of the jury. The language used in this case, however, was certainly very favorable to the accused, and is sustained by respectable authority. Commonwealth v. Webster, 5 Cush. (Mass.) 295; Arnold v. State, 23 Ind. 170; State v. Nash, 7 Iowa, 347; State v. Ostrander, 18 id. 435; Donnelly v. State, 2 Dutch. (N. J.) 601; Winter v. State, 20 Ala. 39; Giles v. State, 6 Ga. 276.

We think there was no error in the charge of which the plaintiff in error can justly complain.

The plaintiff in error next alleges that the description of the woman named in the indictment as the person with whom the crime of bigamy was committed, was not sufficiently specific, and that on the trial she turned out to be not Caroline Owens, but Caroline Maile.

The designation of Caroline Owens as the person with whom the second marriage was contracted is clearly sufficient. If it were not, it is too late after verdict to object. As to the fact, the jury has found that the person whom the plaintiff in error was charged to have married while his first wife was living, and still his legal wife, was Caroline Owens and not Caroline Maile, and that question is, therefore, conclusively settled by the verdict. This court cannot re-examine questions of fact upon writ of error. Rev. Stat., sect. 1011.

The plaintiff in error lastly claims that the court erred in allowing Caroline Owens, the second wife, to give evidence against him touching his marriage with Emily Spencer, the alleged first wife; and in charging the jury that they might consider her testimony, if they found from all the evidence in the case that she was a second and plural wife.

This assignment of error, we think, is well founded.

The law of Utah declares that a husband shall not be a witness for or against his wife, nor a wife for or against her husband.

The marriage of the plaintiff in error with Caroline Owens was charged in the indictment and admitted by him upon the trial. The fact of his previous marriage with Emily Spencer was, therefore, the only issue in the case, and that was contested to the end of the trial. Until the fact of the marriage of Emily Spencer with the plaintiff in error was established, Caroline Owens was prima facie his wife, and she could not be used as a witness against him.

The ground upon which a second wife is admitted as a witness against her husband, in a prosecution for bigamy, is that she is shown not to be a real wife by proof of the fact that the accused had previously married another wife, who was still living and still his lawful wife. It is only in cases where the first marriage is not controverted, or has been duly established by other evidence, that the second wife is allowed to testify, and she can then be a witness to the second marriage, and not to the first.

The testimony of the second wife to prove the only controverted issue in the case, namely, the first marriage, cannot be given to the jury on the pretext that its purpose is to establish her competency. As her competency depends on proof of the first marriage, and that is the issue upon which the case turns, that issue must be established by other witnesses before the second wife is competent for any purpose. Even then she is not competent to prove the first marriage, for she cannot be admitted to prove a fact to the jury which must be established before she can testify at all.

Witnesses who are prima facie competent, but whose competency is disputed, are allowed to give evidence on their voire dire to the court upon some collateral issue, on which their competency depends, but the testimony of a witness who is prima facie incompetent cannot be given to the jury upon the very issue in the case, in order to establish his competency, and at the same time prove the issue.

The authorities sustain these views.

Upon a prosecution for bigamy under the statute of 1 Jac., c. 11, it was said by Lord Chief Justice Hale: 'The first and true wife is not allowed to be a witness against her husband, but I think in clear the second may be admitted to prove the second marriage, for she is not his wife, contary to a sudden opinion delivered in July, 1664, at the Assizes in Surrey, in Arthur Armstrong's case, for she is not so much as his wife de facto.' 1 Hale, P. C. 693.

So in East's Pleas of the Crown the rule is thus laid down: 'The first and true wife cannot be a witness against her husband, nor vice versa; but the second may be admitted to prove the second marriage, for the first being proved she is not so much as wife de facto, but that must be first established.' 1 East, P. C. 469. The text of East is supported by the following citation of authorities: 1 Hale, P. C. 693; 2 M. S. Sum. 331; Ann Cheney's Case, O. B. May, 1730, Sergt. Foster's Manuscript.

In Peake's Evidence (Norris), 248, it is said: 'It is clearly settled that a woman who was never legally the wife of a man, though she has been in fact married to him, may be a witness against him; as in an indictment for bigamy, the first marriage being proved by other witnesses, the second wife may be examined to prove the marriage with her, for she is not de jure his wife.'

Mr. Greenleaf, in his work of Evidence, vol.iii.sect. 206, says: 'If the first marriage is clearly proved and not controverted, then the person with whom the second marriage was had may be admitted as a witness to prove the second marriage, as well as to other facts not tending to defeat the first or legalize the second. There it is conceived she would not be admitted to prove a fact showing that the first marriage was void,-such as relationship within the degrees, or the like,-nor that the first wife was dead at the time of the second marriage, nor ought she to be admitted at all if the first marriage is in controversy.'

The result of the authorities is that, as long as the fact of the first marriage is contested, the second wife cannot be admitted to prove it. When the first marriage is duly established by other evidence, to the satisfaction of the court, she may be admitted to prove the second marriage, but not the first, and the jury should have been so instructed.

In this case the injunction of the law of Utah, that the wife should not be a witness for or against her husband, was practically ignored by the court. After some evidence tending to show the marriage of plaintiff in error with Emily Spencer, but that fact being still in controversy, Caroline Owens, the second wife, was put upon the stand and allowed to testify to the first marriage, and the jury were, in effect, told by the court that if, from her evidence and that of other witnesses in the case, they were satisfied of the fact of the first marriage, then they might consider the evidence of Caroline Owens to prove the first marriage.

In other words, the evidence of a witness, prima facie incompetent, and whose competency could only be shown by proof of a fact which was the one contested issue in the case, was allowed to go to the jury to prove that issue and at the same time to establish the competency of the witness.

In this we think the court erred.

It is made clear by the record that polygamous marriages are so celebrated in Utah as to make the proof of polygamy very difficult. They are conducted in secret, and the persons by whom they are solemnized are under such obligations of secrecy that it is almost impossible to extract the facts from them when placed upon the witness stand. If both wives are excluded from testifying to the first marriage, as we think they should be under the existing rules of evidence, testimony sufficient to convict in a prosecution for polygamy in the Territory of Utah is hardly attainable. But this is not a consideration by which we can be influenced. We must administer the law as we find it. The remedy is with Congress, by enacting such a change in the law of evidence in the Territory of Utah as to make both wives witnesses on indictments for bigamy.

For the error indicated the judgment of the Supreme Court of the Territory of Utah must be reversed and the cause remanded to that court, to be by it remanded to the District Court, with directins to set Court, with directions to set and award a venire facias de novo.

So ordered.


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

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text:
Land Company v. Saunders

ERROR to the Circuit Court of the United States for the District of New Hampshire.

The facts are stated in the opinion of the court.

Mr. William L. Putnam and Mr. Ossian Ray for the plaintiff in error.

Mr. Josiah G. Abbott, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Land Company v. Saunders


text: Talk:Land Company v. Saunders

title: Talk:Land Company v. Saunders


text:
Land Company v. Saunders/Opinion of the Court

This is a writ of entry brought by the Bartlett Land and Lumber Company, against Saunders, to recover possession of a certain tract of land in Grafton County, New Hampshire, described as follows:--

'Beginning at the northwest corner of the town of Albany, and     thence runing north about 3 degrees east, 3 miles and 65      rods, to a spruce tree marked; and from thence north about 6      degrees east, 4 miles and 95 rods, to a fir tree marked; and      from thence south about 87 1/2 degrees east, to the westerly      line of Hart's Location, and to the easterly line of Grafton      County, as established by the act approved July 3, 1875,      entitled 'An Act establishing the east line of Grafton      County;' and from thence along the east line of Grafton      County to the bound begun at, and containing 8,000 acres of      land, more or less.'

The defendant filed a plea, defending his right in, and denying disseisin of, all the land described in the plaintiff's writ which is included in the following-described tract, viz.:--

'Beginning at the northwest corner of the town of Albany,     formerly called Burton, and thence running north about three      degrees east, three miles and sixty-five rods, to a spruce      tree marked; and from thence north about six degrees east,      four miles and ninety-five rods, to a fir tree marked; and      from thence south about eighty-seven and one-half degrees      east, to the westerly line of Hart's Location; thence      southerly by the westerly line of Hart's Location to the      point in said westerly line nearest to the northwest corner      of said Albany; thence in a straight line to the northwest      corner of said Albany.'

He disclaimed title to the remainder of the land claimed in the demandant's writ.

Upon these issues the cause came on to be tried, and after the demandant's evidence was adduced, the court instructed the jury that, upon the case made thereby, the demandant was not entitled to recover. A verdict was given for the defendant, and judgment rendered accordingly. The present writ of error is brought to reverse this judgment.

The specific points raised upon the trial, upon which the court was called upon to pass, are presented by a bill of exceptions, which exhibits the evidence in detail. Such parts of this evidence as may be necessary to understand the matters of law raised by the writ of error will be adverted to.

The demandant, on the trial, produced and deraigned title under a quitclaim deed from James Willey, land commissioner of the State of New Hampshire, to Alpheus Bean and others, dated Nov. 26, 1831, made by authority of a resolve of the legislature, which included the lands claimed in the writ.

The demandant also produeed a prior deed, under which the defendant claimed the land described in his plea, being a deed from Abner R. Kelly, treasurer of the State of New Hampshire, to Jasper Elkins and others, dated Aug. 31, 1830, and made by authority of a resolve of the legislature, which deed purported to convey the following-described tract in the county of Grafton, New Hampshire, to wit:--

'Beginning at the northeast corner of the town of Lincoln,     and running east seven miles and one hundred and seventeen      rods to Hart's Location; thence southerly by the westerly      boundary of said location to a point so far south that a line      drawn thence due south shall strike the northwest corner of      the town of Burton; thence south to said northwest corner of      Burton; thence westerly along the northern line of Waterville      to the eastern boundary of Hatch and Cheever's grant; thence      northerly and westerly by said grant to the east line of      Thornton; thence by said line of Thornton northerly to the      line of Lincoln, and along this line to the point first      mentioned.'

The principal question in the cause was whether the premises thus granted to Elkins and others by the last-named deed embraced the land described in the defendant's plea; if they did, as was held by the judge at the trial, the defendant's was the elder title to the land in dispute, and the title of the demandant failed, and there is no error in the instructions as to the documentary title.

The beginning corner of the premises granted to Elkins and others was conceded to be a well-known point, and the general position of the first line of survey, which is described as 'running east 7 miles and 117 rods to Hart's Location,' was not disputed; nor was the position of the northwest corner of the town of Burton (now Albany) disputed, it being a common point to which both parties referred; nor were the lines of the Elkins survey from the northwest corner of Burton, 'westerly along the northerly line of Waterville, &c., to the point first mentioned,' brought in question. The only point in dispute was the eastern boundary of the Elkins tract; the defendant contending that, by virtue of the deed of 1830, it extended eastwardly to Hart's Location, covering the disputed territory; and the demandant contending that it did not extend further to the eastward than the northwest corner of Burton (or Albany), and a line drawn north from that point.

The language of the grant is, 'east 7 miles and 117 rods to Hart's Location; then southerly by the westerly boundary of said location to a point so far south that a line drawn thence due south shall strike the northwest corner of the town of Burton; thence,' &c. Now, if, when the grant was made, there was a track known as Hart's Location lying easterly and in the vicinity of the land granted, and if it had a westerly boundary to which the granted tract could by any reasonable possibility bility extend, no more apt language for this purpose could have been adopted. It would be a monument which would control courses and distances. If more or less distant from the point of beginning than seven miles and one hundred and seventeen rods, still it would control the survey. If a line drawn due south from any point of its western boundary would not strike the northwest corner of Burton, then they must be connected by a line not running due south. The line of shortest distance between said boundary and said northwest corner would be the proper one, and this is the one that was adopted. Hart's Location is called for, and to that location we are bound to go.

The evidence was overwhelming and uncontradicted to show the existence and notoriety of Hart's Location. It is a large tract of land lying on both sides of the Saco River, directly to the eastward of the Elkins tract. On the 27th of April, 1772, this tract was granted by Governor Wentworth, in the name of the king, to one Thomas Chadbourne. The plaintiff produced in evidence a copy of that grant, having a plat or survey of the tract annexed to it. The premises granted are described as follows:-- 'Beginning at a birch tree being the southwesterly corner     bounds of a tract of land granted to Mr. Vere Royse; from      thence running north fonr hundred and seventy rods, from      thence extending westerly the same breadth of four hundred      and seventy rods, the distance of two hundred and eighty-five      rods, from thence running northwesterly six hundred rods,      from thence running nearly a north course thirteen hundred      rods until it meets the notch or narrowest passage leading      through the White Mountains lying upon Saco River.'

The plat, or survey, annexed to the grant shows the Saco River running through it. It follows the river on both sides from the beginning of the survey up to the mountains. It is conceded that the beginning corner is well known; and the general location of the tract is undisputed. By the name of Hart's Location it has been well known for nearly a century past. Its census has been published in the laws like that of a regular township, and it seems to have been treated in some sort as a quasi township. In the State census published with the laws of 1815, and again in 1820, the population of Hart's Location is put down as thirty-five for the year 1810, and at sixty-five for 1820. In the acts for the apportionment of the State tax among the several townships of the State, the pro rata share of Hart's Location was fixed at eight cents on a thousand dollars in 1816; at twelve cents in 1820; at ten cents in 1824; and at eight cents in 1829. By an act approved Dec. 24, 1828, it was resolved, 'That Hart's Location, in the county of Coos, be annexed and classed with the towns of Bartlett and Adams, in said county, for the purpose of electing a representative to the general court, until the legislature shall otherwise order.' The demandant's principal witness stated that it had been a political organization at one time, and sent a representative to the general court.

But it was claimed by the demandant, and proof was offered to show, that the western boundary of Hart's Location, being in a wild and mountainous region, had never been located on the ground in 1830, and could not be located from the description contained in the grant, because it was too vague and uncertain to admit of a fixed and definite survey. But the plat annexed to the grant, and referred to by the grant for greater certainty, did show a boundary line, laid down to a scale. If there was no other evidence on the subject, this would be sufficient to show that Hart's Location had a boundary, and a definite one, whether it was ever actually run out on the ground or not. In or about 1803, on occasion of a general perambulation of the townships of the State, made in pursuance of an act of the legislature, a survey of Hart's Location was made by one Merrill, by public authority, and deposited in the office of the secretary of state. This was also produced in evidence on the trial, and showed a well-defined map of the location, laid down to a scale,-differing somewhat from the plat annexed to the original grant, but not more than might be naturally expected if the original was not used.

There can be no doubt, therefore, that when Hart's Location was referred to in public acts and resolves, whether for the purpose of taking the census, taxation, or political jurisdiction, it was referred to as a defined tract or portion of territory, within the bounds of which the State claimed no proprietary interest. In 1830, when the legislature, by a resolve, authorized, and by its treasurer made, to Elkins and his associates, a grant of land to extend from the town of Lincoln on the west to Hart's Location on the east, the exterior line extending along 'by the westerly boundary of said location,' it is difficult to find any ground for uncertainty or ambiguity in the grant, or to imagine how, after that, the State, or any persons claiming under the State, could, with any show of reason, claim that there was no such thing in being as a Hart's Location having a western boundary; or that the Elkins grant did not extend to and bound upon it. All rights of the State up to and adjoining said location were as clearly disposed of as if the two grants, that of Hart's Location and that to Elkins and others, had been made in the same instrument,-granting to one party, first, Hart's Location as described in Chadbourne's patent, and then granting to Elkins and his associates all the residue of the lands westward to the town of Lincoln between designated side lines on the north and south.

The truth is, that Hart's Location itself was the monument indicated, whatever might be the location of its western boundary. The existence of the location as a territorial subdivision of New Hampshire was as notorious and certain as the existence of any township in the State. It must of necessity have had a boundary, whether that boundary had ever been actually surveyed on the ground or not. The State owned all the land lying westerly of it,-between it and the township of Lincoln,-and this land had never been granted to any person. It was wild, mountainous land of ittle value. The whole area, equal to the extent of a large township, and containing probably seventy or eighty square miles, was in 1830 valued at only $800. All this tract thus lying to the west of Hart's Location was granted to Elkins and his associates. They may have been under an erroneous impression as to the true location of the western boundary of Hart's Location, but, whatever it was, and whenever found, that was to be the boundary of the grant.

It may be true, as stated by the Supreme Court of Massachusetts in Morse v. Rogers (118 Mass. 573, 578), that where a boundary is inadvertently inserted or cannot be found, or an adherence to it would defeat the evident intent of the parties, 'the boundary may be rejected, and the extent of the grant be determined by measurement, or other portions of the grant.' But that is not the case here. The evident intent of the parties was to go to Hart's Location as a territory or known body of land, without particular regard to a marked, designated, and visible line. It was their intent to leave no land belonging to the State between that territory and the tract granted. This was clearly the principal object in view; and as Hart's Location must necessarily have a western boundary somewhere, and as its limits and bounds were shown, whether correctly or incorrectly, by public maps in the archives of the State, it could not be said that this boundary was incapable of ascertainment. To hold this, and abandon the call of the deed for Hart's Location, and to confine the grantees to courses and distances, would defeat instead of furthering the intention of the parties. If the western boundary of Hart's Location had never been surveyed on the ground, it could be surveyed; or it could be located by agreement between the owners of it and the owners of the Elkins grant. They were the only parties who after that grant had any interest in the matter.

It may well be asked, if the call for Hart's Location and its western boundary can have no significance in the Elkins grant in 1830, how does it suddenly acquire significance in 1831, in the grant under which the demandant claims? The language used is almost exactly the same: 'thence easterly to Hart's Location; thence southeasterly by said Hart's Location,' &c.

With the accumulated evidence on the subject which was presented in the demandant's case, most of it of such a character as not to admit of contradiction, we think that the judge was perfectly right in assuming that Hart's Location was a monument sufficiently definite to control the courses and distances given in the grant. Indeed, we do not see how he could have done otherwise. The fact that the town of Burton, which lay to the south of Hart's Location, extended so far westerly that its northwest corner would not be met by a line drawn due south from any part of Hart's Location, cannot prevent the Elkins grant from extending to Hart's Location as its eastern boundary, as called for in the deed. As before stated, the connection between this location and the northwest corner of Burton, if it cannot be made by a line drawn due south as called for, must necessarily be made by the line of shortest distance between them. This is the surveyors' rule and the rule of law. Campbell v. Branch, 4 Jones (N. C.) L. 313. It is constantly applied when trees or monuments on or near the margin of a river are called for in a deed where the river is a boundary.

We think that the judge did not err in relation to the construction and effect of the Elkins deed.

But the demandant raised another point at the trial, namely, that the owners of the Elkins grant had estopped themselves from claiming under it any land eastwardly of a line running north from the northwest corner of the town of Burton, or Albany. The evidence offered on this point tended to show that about or soon after the date of the Elkins grant the grantees or some of them employed surveyors to ascertain the extent and boundaries of the grant, and that a line was run directly (or nearly) north from the northwest corner of Burton to the north line of the grant, as the supposed eastern boundary adjoining Hart's Location; but that this was done without any communication or agreement with the proprietors of Hart's Location or any other parties having an interest in the adjoining lands, and in ignorance of the true western boundary of that location on the land. The evidence consisted of the testimony as to the declarations of some or one of the grantees, as to the running of such line, made over forty years before, and of a recent examination of marked trees which indicated a date corresponding with the period referred to.

We think that the judge was right in holding that this evidence was totally insufficient, under the law of New Hampshire, or any other law, to show such a settlement of the line as to estop the owners of the grant from claiming to the extent of the description contained in the deed. Conceding that everything was proved which the evidence tended to prove, it would only show that the grantees made a tentative effort to find the limits of their property in a mountainous and almost inaccessible wilderness, without consultation or communication with any other parties, and without doing any act or thing that could in the least commit them in relation to such parties. The only line shown to have been the subject of any agreement was that located by Wilkins in 1850, parallel to, and two hundred and thirty-five chains from, the Saco, which was concurred in by Walker, the agent of the owners of the Elkins grant, and one Davis, who professed to own one-half of Hart's Location.

It is alleged by the counsel of the demandant that the law of New Hampshire on the subject of estoppel as to boundary lines is peculiar; that an agreement settling such lines, though made by parol, is binding upon the parties and all those claiming under them. Conceding this to be true, not the slightest evidence was offered to show any agreement whatever, or even any communication, between the adjoining owners prior to 1850, and the line then agreed upon coincides substantially with that which is now claimed by the defendant.

It is contended, however, that the running of the hypothetical line northerly from the Burton corner was an estoppel as regards the State; that the State, upon the faith of this line being run and marked by the Elkins grantees, entered upon the land eastward of it, and granted the same to Bean and others. That is, the State, by legislative resolve and solemn grant, having in 1830 granted to Elkins and others all the land west of Hart's Location, had the right to re-enter upon some eight thousand acres of the same land in 1831 and grant it out to third parties, because the Elkins grantees, in making an ex parte survey, had mistaken the position of the west boundary of Hart's Location. There is no pretence, certainly no proof, that this survey was made by any concurrence of the parties, or that there was even any communication between the agents of the State and the Elking grantees. The agents of the State simply lay by and watched the operations of Elkins and company, and finding, or supposing, that they had made a mistake, and had left a vacant tract of land between the line they ran and Hart's Location, stepped in and made another grant to other parties of nearly a sixth part of the tract granted to the Elkins party. Not a particle of evidence was produced to show any acquiescence on the part of Elkins and his associates in this proceeding, or that they had any notice or knowledge of it. So far as appears, they have never acknowledged the right of these new grantees, nor have they ever admitted that any one had any right to interfere with the extension of their land eastwardly to Hart's Location. We think no case can be found that would make out an estoppel under such circumstances as these.

We have been referred with much confidence to the case of The Proprietors of Enfield v. Day, 11 N. H. 520. We have carefully examined this case, and do not find in it anything to support the proposition contended for. There the State interposed, after due notice to the parties and an inquiry by the legislature in reference to the true and right ownership of a certain gore between two adjoining townships, which by an alleged mistake of a figure had not been included in the grant (of Enfield), in which it was intended to be. The south line was south 68° east in the deed, when it should have been south 58° east. The grant of Grantham was made a few years afterwards, binding on Enfield, but having the right course (south 58° east) for its north line. On the application of the proprietors of Enfield and adjoining townships, the legislature was applied to to correct this error, and commissioners were appointed to run the true line, and the disputed gore was granted to Enfield. The parties acquiesced for twenty years, and the question was whether Enfield had sufficient seisin and color of title to claim the benefit of the Statute of Limitiations; and the court held that it had. But the court expressed itself with great caution as follows: 'In this case we are clearly of opinion the seisin would not pass by the mere effect of the second grant; but was there not such a previous re-entry and assertion of right on the part of the government as to constitute, together with the grant, a conveyance with livery of seisin? An entry upon the land by the government agents, and the running anew and re-marking of lines, with the express design of a reconveyance to rectify a former mistake, would seem to be evidence sufficient to show an actual possession in the government of any given tract.' Was anything of this kind done in the present case? Were the Elkins grantees notified of any error or mistake? Were they informed of the intention to regrant a portion of the tract granted to them? Did they acquiesce in such proceedings? Nothing of the kind. But the court adds: 'The proceedings of the legislature were had on public notice and actual service on the proprietors of Grantham. They also had full knowledge of the subsequent proceedings of the proprietors of Enfield, in their entry upon and frequent sales of portions of this gore of land, claiming the whole under the grant from the State, and must be regarded as acquiescing in such adverse possession and claim. It is now too late for the proprietors of Grantham to assert their title.' It is obvious that the cases are totally distinct; and it is unnecessary to discuss the subject further.

The judge, on this part of the case, instructed the jury that there was no evidence before them to estop or bar those claiming under the Elkins grant from maintaining their line by the westerly side of Hart's Location; and in this we think he was right.

Judgment affirmed.


text: Talk:Land Company v. Saunders/Opinion of the Court


text:
Ward v. Todd

ERROR to the Circuit Court of the United States for the Eastern District of Arkansas.

The facts are stated in the opinion of the court.

Mr. U. M. Rose for the paintiff in error.

Mr. Charles P. Redmond, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Ward v. Todd


text: Talk:Ward v. Todd

title: Talk:Ward v. Todd


text:
Ward v. Todd/Opinion of the Court

This was a suit against Ward, the plaintiff in error, on a judgment in the Fayette Circuit Court of the State of Kentucky, and the only question is whether, in the record of the judgment sued on, it appears that the State court had jurisdiction to render a personal judgment against Ward. The facts are these:--

On the 17th of June, 1872, Ward executed to the firm of Todd & Rafferty his note for $10,733.28, payable two years after date, with interest at the rate of seven per cent per annum until paid, and secured it by a mortgage on certain property. Afterwards, on the 31st of July, in the same year, he gave his note to the same firm for $3,528, payable, with interest at the same rate, in one year from date, and secured it by mortgage on the same property. On the 8th of August, 1873, Todd, as surviving partner of the firm of Todd & Rafferty, filed a petition in the Fayette Circuit Court, in which he set forth the due execution of these two notes and mortgages and their respective liens on the mortgaged property. He also stated that the note of July 31 was due and unpaid, and that the one of June 17 was a subsisting debt but not due. He also set forth a purchase of the mortgaged property by him at tax sale for $55.09, and that the city of Lexington had a lien on the property for unpaid purchase-money. The notes and mortgages were filed as exhibits to the petition, and the prayer was for a judgment on the small note, which was due, for a sale of the mortgaged property to pay that note, and that the residue of the proceeds might be retained to satisfy the other note and the claim for taxes. Ward was served personally with process in the case Sept. 8, 1873. On the 17th of September Todd amended his petition by setting forth that he had paid the city of Lexington $680 in full for the amount due as purchases-money of the property, and asking that this sum might be paid out of the proceeds of any sale that should be made. After this, process was again issued and served personally on Ward, September 18. On the 19th of November a decree was entered in the cause by default, finding the amount due on the note of July 31 and the claim for taxes, and establishing the lien for the debt originally due the city. The lien under the mortgage to secure the note under date of June 17 was also recognized and established, and inasmuch as the property could not be sold in parts except to a limited extent, it was ordered that the whole be sold. On the 29th of November Ward appeared, and on his motion this judgment or decree was set aside and he had leave to answer, which he did, setting up, in effect, that the debt of June 17 was not due; that Todd had no lien on the mortgaged property for the amount he had paid the city of Lexington; that he was not entitled to foreclose any lien for taxes, as that was not due, and that the property was capable of division for the purposes of a sale. He therefore asked that only so much of the property be sold as was required to satisfy the debt then due. Thereupon, on the 9th of December, it was adjudged: 1, That Todd recover of Ward the amount of the note of July 31, with interest until paid; and, 2, that so much of the mortgaged property as was necessary to pay that debt be sold. 'Upon the other questions raised in the petition and answer' the court took further time. On the 4th of February, 1874, the master reported a sale of part of the mortgaged property sufficient to pay the note of July 31. This sale was confirmed on the 5th of February, 1874, but no decree was entered in respect to the claim for taxes or the amount paid the city to discharge its claim for purchase-money, and on the 15th of August following Todd produced and asked leave to file an amended petition in the cause. To this Ward appeared by his counsel and objected, but the objection was overruled and the leave granted. In this petition Todd set forth that the note of July 31 had become due, and he asked a judgment for this debt and a further foreclosure of the mortgage. After this, service on Ward by publication was made, he being at the time absent from Kentucky and a resident of Arkansas. No personal service of process was made on him within the State after this amendment. On the 27th of November a decree was entered that Todd recover of Ward the amount of the note of June 17, 1872, with interest; that what remained of the mortgaged property be sold; that so much of the petition as related to the claim of the city of Lexington for the original price of the lot, and to the claim for taxes, be dismissed, and that execution might issue for so much of the debt and costs adjudged to Todd as remained unpaid by the sale of the mortgaged property. Under this decree the property was sold for $7,000. That sale was confirmed, and this suit was brought on the judgment to recover the balance remaining due after the proceeds had been applied as directed by the decree.

This statement of the facts shows clearly that the court had jurisdiction of Ward personally. He was not only served with process in Kentucky, but he appeared personally in the action and filed an answer to the petition. In this answer he put in issue his liability in that suit for the money paid the city of Lexington and the money paid for the taxes. In the first decree these issues were left undecided and the cause retained on that account. Afterwards Todd asked leave to amend his petition, and Ward appeared unconditionally to resist that application. The leave was granted, and a judgment afterwards rendered in accordance with the prayer of the amendment. At the same time the issues left undetermined under the original petition were decided in favor of Ward. The amendment was germane to the matters set forth in the original petition, and the court, having once obtained rightful jurisdiction of the parties, could retain it until complete relief was afforded within the general scope of the subject-matter of the action. Ober v. Gallagher, 93 U.S. 199. Ward evidently recognized this fact when he appeared by his counsel and resisted the application to amend so as to charge him personally with the amount of the note which had fallen due while the suit had been pending. The claim is not that the attorney had no authority to appear in the suit, but that his appearance was for a special purpose only. This is clearly contradicted by the record. A part of the issues originally made in the suit were then pending, and it was the duty of counsel to be in attendance on the court to protect his client's interest until the whole subjectmatter of the litigation was finally disposed of.

The service by publication after the amendment was, under the circumstances, unnecessary, and did not deprive the court of the jurisdiction which it had acquired before.

Judgment affirmed.

title: Ward v. Todd/Opinion of the Court


text: Talk:Ward v. Todd/Opinion of the Court

title: Talk:Ward v. Todd/Opinion of the Court


text:
Bouldin v. Alexander (103 U.S. 330)

APPEAL from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. Saul S. Henkle for the appellants.

Mr. Thomas Wilson, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Bouldin v. Alexander (103 U.S. 330)


text: Talk:Bouldin v. Alexander (103 U.S. 330)


text:
Bouldin v. Alexander (103 U.S. 330)/Opinion of the Court

The bill in this case was filed by Joseph Alexander and others against Albert Bouldin and others, to determine which of two contending boards of trustees of the 'Third Colored Baptist Church 'was entitled to the possession and control of the church property, including the church building erected by the association as a place of worship; to correct a mistake in a deed executed by Bouldin to the trustees of the church, and to obtain a settlement with him of his accounts as the agent and pastor of the church, and the cancellation and discharge of certain notes secured by real or pretended deeds of trust which had been, from time to time, executed to him. The first and second of these things were accomplished by a decree affirmed. in this court at the December Term, 1872, and reported in 15 Wall. 131. The complainants were, by that decree, adjudged to be the lawful trustees; the mistake in the deed was corrected, and the present appellants, defendants below, were ordered to deliver the possession of the church building and the lot on which it stood to the complainants. This left nothing to be disposed of but the matters of account between Bouldin and the church, and the notes which had been given to him. With a view to this end, the original decree, affirmed here on the former appeal, was that the cause be referred to the auditor of the court below 'to examine and report the facts on the following questions:--

'1st, Whether the defendant, Albert Bouldin, purchased, under the direction of the church, the entire lot of ground on the corner of Fourth and L Streets of George H. Varnell, for the use and benefit of said church; and whether the money collected by said Bouldin from or on behalf of the church was by him used to aid in the payment of said lot, and, if so, to what amount.

'2d, To state the accounts between the said Albert Bouldin and the plaintiffs, as trustees of the said church, and the trustees of whom they are the successors; to report the amounts of money received by said Bouldin from the said church, and from other persons on behalf of said church, and the amounts to which he was entitled for his services in behalf of said church, and has expended therein and about the same, and to state the balance due either way, and for these purposes that he may call witnesses and take testimony.

'That the plaintiffs, until the further order of this court, are enjoined and restrained from selling, disposing of, or in any way incumbering the title of said church property so as to weaken the security of said Bouldin upon the church property.'

When our mandate went down on that appeal, the complainants moved that a writ of possession issue at once; but the court withheld it for the coming in of the auditor's report, and, with the consent of the defendants, the order of reference was made to include the following additional questions:--

'3. In whose possession has the church building and property on the corner of Fourth and L Streets, Washington, D. C., been since the commencement of this suit?

'4. What is the fair value of the rents, issues, and profits arising and accruing to the party in possession of said property from and since this suit?'

There was no claim in the bill for compensation for the use and occupation of the property, though it was alleged that the defendants unlawfully and by force kept the complainants, who were the only duly elected trustees, out of possession.

As to the notes, it was alleged in the bill that on the 28th of July, 1862, six notes were made to Bouldin, five for the sum of $100 each, payable in one, two, three, four, and five years from date, and the other for $120, payable in six years; and that these notes were secured by a deed of trust to one J. W. Barnaclo. In addition to this, according to the averments in the bill, four other notes of $400 each were afterwards executed to Bouldin, on a settlement of his accounts for the erection of the church building. It was also alleged that the defendants who claim to be trustees of the church property had executed a deed of trust to one Callan, to secure all the notes originally given to Bouldin. The claim on the part of the complainants was, that on a full settlement of all the accounts of Bouldin, and a correction of the mistakes that had occurred in former settlements, it would be found there was nothing due on the notes, and that Bouldin would be largely in debt to the church.

The defendants, in their answer, claimed that the notes for $620 were given and secured by deed of trust to Barnaclo, as stated in the bill, and that on the settlement of accounts, when the church building was completed, six notes, of $400 each, were given to Bouldin, instead of four. The execution of the deed of trust by the defendant trustees was also relied on.

On the hearing of the case before the auditor, Bouldin refused to produce the notes that had been given to him, or account for their absence. It was proved, however, that there had been paid to or collected by him divers sums of money which should be credited on the notes. The aggregate of these sums, including interest from the date of payment to Nov. 1, 1875, is, according to the report to the auditor, $1,233.47. On account of the failure of Bouldin to present the notes, the auditor made no statement of the amount due upon them, but treated them as withdrawn from the suit by Bouldin. The auditor also found that the entire lot of ground on the corner of Fourth and L Streets, bought from Varnell, was for the use of the church, and charged Bouldin with the proceeds of a sale made of part of the lot. He also reported that the defendants had been in the possession of the church property since the commencement of the suit, and that the value of the rents, issues, and profits accruing to them by reason of such possession, was six per cent per annum on the value of the property, or $498.33 a year. He, therefore, in his accounting, charged the defendants with that amount, payable quarterly each year, from Sept. 28, 1867, the date of the commencement of the suit, until Oct. 1, 1875, and interest on each quarterly instalment as it fell due. The total amount of his allowances in this way, on account of rents, was $4,910.26, as of Oct. 1, 1875.

Upon the filing of the report, the complainants excepted because rents had not been charged from July 28, 1867, instead of September 28. The defendants excepted, 1, because they had been charged with mesne profits; 2, because Bouldin was not credited for the amount of his notes; 3, because Bouldin was charged for the proceeds of the part of the lot bought from Varnell which he had sold; 4, because no allowance had been made to Bouldin for his services; and, 5, because of the amount allowed for payments made to Bouldin.

The court below at special term overruled the exceptions of the complainants, and sustained the exceptions of the defendants to the allowance against Bouldin for the proceeds of the sale of part of the lot bought from Varnell, and to the allowance against all the defendants for rents, and returned the case to the auditor for a further stating of the accounts in accordance with certain instructions. From this decree at special term an appeal was taken by the complainants to the general term, where a decree was rendered against all the defendants, the present appellants, for $4,734.12, 'as mesne profits for use and occupation by them of the church premises during the pendency of this suit, to wit, from the commencement of the suit until March 31, 1877, when the said premises were returned to the possession of the plaintiffs.' The decree then further goes on to say, 'The promissory notes given by the plaintiffs as trustees of the church to the defendant, Albert Bouldin, are not included in this decree, the same having been withdrawn from the consideration of the court. But all other claims by him made against the church or its trustees are rejected and disallowed. The item of interest on mesne profits reported by the auditor in favor of the complainants is disallowed.' It was also ordered that the injunction restraining J. W. Barnaclo from proceeding under the deed of trust to him, and that restraining the complainants from selling, disposing, or incumbering the title to the church property, be dissolved.

From this decree the defendants below have alone appealed, and they assign for error the decree against them for the payment of mesne profits, and the disallowance of the claims of Bouldin, not embraced in his notes.

As to the mesne profits, we think the decree below cannot be sustained. There is no claim for an allowance of this kind in the bill, and the proofs do not show that the appellants, or those whom they represent, derived individually any such pecuniary advantage from the use of the property pending the suit as to make it proper they should be held personally accountable in that way. Bouldin was the founder of the society. He gathered the congregation together. He bought the church lot and superintended the erection of the church building. If money was wanted that could not be got from others, he furnished it himself from his own means, and in the end, as the case shows, while the society had secured a property worth, according to the report of the auditor, a little more than $8,000, there was a debt owing to him of over $3,000. The congregation had increased under his administration to several hundred members. Afterwards dissensions grew up, and two parties were formed, the complainants representing one and the defendants the other. Each sought to control the property and govern the society. The defendants kept possession, and apparently a part of the time with the approbation of the court, for a writ to put them out was denied when applied for. At last the complainants were successful, and Bouldin and his party were required to submit to their government. The contest all along was not so much for possession of the property as for the control of the church affairs. During the entire controversy the church property has been kept exclusively for church purposes. Every member of the congregation was permitted to worship there if he chose. It is possible that the parties officiating at the religious services and controlling the property may not at all times have been such as the complainants and their adherents wanted, but no person was excluded from the church building for the purposes of worship if he wanted to go in. Under these circumstances it seems to us that the defendants are not in equity chargeable personally with the value of the use and occupation of the property during the time they were litigating to keep the control of the society and its affairs.

In other respects the decree below is right, so far as it goes. Upon the evidence, Bouldin is not entitled to any further credits than have been allowed. He voluntarily withdrew or withheld his notes from the auditor and the court, and cannot have any affirmative relief on their account. His rights under the Barnaclo deed of trust are saved by the decree, and as the persons who executed the Callan deed were not lawful trustees, all proceedings under that deed were properly enjoined. We think, however, some order should have been made giving the complainants the benefit of the finding in their favor by the auditor in respect to the moneys paid to or collected by Bouldin to apply on his notes. From the answer of Bouldin, it seems probable that a part of these payments have already been indorsed on the notes; but this cannot be determined with certainty without an inspection of the notes themselves. If he will produce the notes, or satisfactorily account for their absence, so that the proper application of all payments can be made under the direction of the court and the notes discharged to the extent of the application, that should be done. But if, on an order to that effect, he shall fail to produce the notes, or fail satisfactorily to account for their absence, a decree should be entered against him personally for the several amounts reported by the auditor as having been paid to or collected by him on that account. As this last proceeding his been rendered necessary by his failure to produce the notes on the former hearing, he should be charged with the costs consequent upon such refusal.

The decree will be reversed so far as it charges the appellants with any sum for mesne profits and use and occupation, and the cause remanded for such further proceedings in conformity with this opinion as may appear to be necessary; and it is

So ordered.


text: Talk:Bouldin v. Alexander (103 U.S. 330)/Opinion of the Court


text:
Blake v. McKim

ERROR to the Circuit Court of the United States for the District of Massachusetts.

The facts are stated in the opinion of the court.

Mr. Joshua D. Ball for the plaintiffs in error.

Mr. James C. Davis, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Blake v. McKim


text: Talk:Blake v. McKim

title: Talk:Blake v. McKim


text:
Blake v. McKim/Opinion of the Court

This action was commenced in one of the courts of Massachusetts, by a citizen of Massachusetts for the use of citizens of that State, against the executors of George Baty Blake, two of whom are citizens of Massachusetts and one a citizen of New York. It is upon a probate bond, executed by James M. Howe, as trustee under the will of Henry Todd, with two sureties, one of whom was the testator of the defendants. Its object is to recover from the estate of the deceased surety the sum of $50,000 for alleged breaches, upon the part of the trustee, of the bond sued on.

The executors filed a joint answer, which presented a common defence, and subsequently, in proper time filed their joint petition for the removal of the case into the Circuit Court of the United States for the District of Massachusetts. The petition was dismissed by the State court. The transcript of the record was, nevertheless, filed in the Circuit Court. By the latter court the case, upon motion of plaintiff, was remanded to the State court. From that order this writ of error is prosecuted.

We are of opinion that the case, as made by the plaintiffs, is not one of which the Circuit Court of the United States can take jurisdiction.

In Removal Cases (100 U.S. 457) we had occasion to construe the first clause of the second section of the act of March 3, 1875, c. 137, which declares that either party may remove to the Circuit Court for the proper district any suit of a civil nature, at law or in equity, pending in a State court, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and in which there is 'a controversy between citizens of different States.' We held it to mean 'that when the controversy, about which a suit in the State court is brought, is between citizens of one or more States on one side, and citizens of other States on the other side, either party in the controversy may remove the suit to the Circuit Court, without regard to the position they occupy in the pleadings as plaintiffs or defendants;' that, upon arranging the parties on opposite sides of the real and substantial dispute, if it appears that those on one side are all citizens of different States from those on the other, the suit may be removed,-all those on the side desiring a removal uniting in the application therefor. In the case an Iowa corporation represented one side of the dispute, while the other was represented by citizens of Ohio and Pennsylvania. The controversy was as broad as the suit.

In Barney v. Latham (supra, p. 205) we held, construing the second clause of that section, that one or more of the plaintiffs or defendants, actually interested in a controversy wholly between citizens of different States, and which can be fully determined as between them, can remove from the State court the entire suit of which that separable controversy forms a part, provided it involves the amount prescribed as necessary to Federal jurisdiction.

The executors of Blake-each of them having qualified and acted in the execution of the trust-were all indispensable parties to the suit. Gould, Pleadings, sect. 73, c. 4; Dicey, Parties to Actions, 322; 1 Chitty, Pl. 52. They all appeared and submitted to the jurisdiction of the court. The present case is, therefore, one in which the suit embraces only one indivisible controversy. It is not wholly between citizens of different States, and fully determinable as between them, because some of the defendants are citizens of the same State with the plaintiffs.

The contention upon the part of counsel for the executors is, that the suit is removable upon their joint petition, under the first clause of that section. We are unable to concur in that view. There is, undoubtedly, some ground for such a construction, but we are not satisfied that Congress intended to enlarge the jurisdiction of the circuit courts to the extent which that construction would imply. The principal reason assigned in its support is, that the clause follows the words of the Constitution, when giving jurisdiction to the Circuit Court of a suit in which there shall be 'a controversy between citizens of different States,'-language which, it is claimed, does not necessarily require that such controversy must be wholly between citizens of different States. But that consideration was pressed upon our attention in the Case of the Sewing Machine Companies (18 Wall. 553), which arose under the act of March 2, 1867, c. 196. 14 Stat. 558. That act authorizes the removal of a suit involving the requisite amount, 'in which there is a controversy between a citizen of the State in which the suit is brought, and a citizen of another State,' upon an affidavit by the latter, whether plaintiff or defendant, showing that he has reason to believe, and does believe, that, from prejudice or local influence, he would not be able to obtain justice in the State court. The argument there, by counsel of recognized learning and ability, was that a controversy between citizens of different States is none the less a controversy between citizens of different States because others are also parties to it; that to confine the Federal jurisdiction to cases, wherein the controversy is between citizens of different States exclusively, is to interpolate into the Constitution a word not placed there by those who ordained it, and materially limiting or controlling its express provisions. We declined to adopt that construction, and held that Congress did not intend by the act to confer the right of removal where a citizen of a State, other than that in which the suit is brought, is united, as plaintiff or defendant in the controversy, with one who is a citizen of the latter State. The construction for which counsel for the plaintiffs in error here contend cannot well be maintained without overruling the principles announced in that case.

It is to be presumed that Congress, in enacting the statute of 1875, had in view as well the previous enactments, regulating the removal of causes from the State courts, as the decisions of this court upon them. If it was thereby intended to invest the circuit courts with jurisdiction of all controversies between citizens of different States, although others might be indispensable parties thereto, such intention would have been expressed in more explicit language. We are not disposed to enlarge that jurisdiction by mere construction. We are of opinion that Congress, in determining the jurisdiction of the circuit courts over controversies between citizens of different States, has not distinctly provided for the removal from a State court of a suit in which there is a controversy not wholly between citizens of different States, and to the full or final determination of which one of the indispensable parties, plaintiffs or defendants, on the side seeking the removal, is a citizen of the same State with one or more of the plaintiffs or defendants against whom the removal is asked.

The judgment of the Circuit Court remanding the cause to the State court will, therefore, be affirmed, and it is

So ordered.

title: Blake v. McKim/Opinion of the Court


text: Talk:Blake v. McKim/Opinion of the Court


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Weitzel v. Rabe

ERROR to the Circuit Court of the United States for the Southern District of Ohio.

This was an action brought by Rabe against Weitzel, collector of internal revenue for the first collection district of Ohio. He alleges that on the sixteenth day of August, 1876, the Commissioner of Internal Revenue illegally and wrongfully assessed against him as distiller, engaged in the business of distilling in that district, an internal revenue tax of $754.63, as upon the product in spirits of an alleged excess of material used for the production of spirits over and above the producing capacity of his distillery, in the month of May, 1876, and caused the same to be forwarded and delivered to Weitzel for collection; that it is not true that there existed any such excess of material used over the actual and lawful producing capacity of his distillery; that he protested against the assessment to Weitzel, who, under authority of his office, demanded the tax, which the plaintiff, to avoid distraint and seizure of his property, paid, under protest, on the 25th of April, 1877; and that on the 29th of May, 1877, he made his application to the Commissioner to refund and repay to him the sum so paid, which was rejected.

The plaintiff demanded judgment for that amount.

The defendant, in his answer, traversed the allegation of the plaintiff's petition that the assessment was oppressive and wrongful. There was a judgment for the plaintiff, and the defendant sued out this writ.

It appears that previous to May 2, 1876, the capacity of the distillery was fixed by the survey at 415.96 bushels of grain each twenty-four hours, the fermenting period being forty-eight hours; that on that day the plaintiff went to the collector's office and notified the deputy in charge of distilleries that he desired to reduce the capacity to 207.45 bushels by closing six fermenting tubs then in use; that he then signed three blank notices given him by said deputy, leaving them with said deputy, who filled up and filed the same. The notices when filed stated that he desired to reduce his capacity from 415.96 to 346.29 bushels by closing tubs Nos. 3 and 8, having a capacity of 9,406 gallons, on and after May 2, 1876; from 346.29 to 276.03 bushels, by closing tubs Nos. 12 and 15, capacity 9,485 gallons, on and after May 3; and from 276.03 to 207.45 bushels, by closing tubs Nos. 10 and 14, capacity 9,258 gallons, on and after May 4, 1876. The deputy thereupon closed and sealed the six tubs successively on the second, third, and fourth days of that month, in accordance with the notices.

On the 2d and 3d of May the plaintiff mashed but 207.45 bushels of grain, but distilled the beer from 415.96 bushels of grain mashed upon the 30th of April and 1st of May; on each remaining day of the month he used the exact amount of grain fixed by the capacity. On the receipt of his return, the Commissioner of Internal Revenue made an assessment against him for an excess of grain used during the second and third days of the month of May over and above the reduced capacity specified in the notices; to wit, in excess of 346.29 bushels on the second, and 276.03 bushels on the third. This assessment was paid to the defendant as collector of internal revenue.

The mode of reducing capacity by giving three notices and closing tubs on successive days after they had remained empty twenty-four hours was the uniform practice in that collection district, until changed in accordance with circular No. 38, from the Commissioner of Internal Revenue, dated Feb. 20, 1877, and the distiller desiring to reduce capacity was required by the collector to give the three notices.

The plaintiff reported all spirits produced by him during May, 1876, and paid tax thereon according to law.

The court charged the jury that the producing capacity of the distillery was not in law reduced until the fourth day of May; that it continued for the second third days of May to be 415.96 bushels, and this being the amount of grain in fact used, there was no use of grain by the distiller in excess of the capacity of his distillery; and that the assessment was therefore illegal.

The defendant asked the court to instruct as follows:--

When the distiller gave notice in the form prescribed that he desired to reduce capacity on and after a day specified in the notice by closing a designated fermenting tub, and such tub was thereupon closed by the deputy collector in accordance with the notice, the legal effect was to reduce the capacity of the distillery on and after that day; and if the distiller on or after that day used grain in excess of the reduced capacity, although mashed before the reduction, the Commissioner was authorized by law to make an assessment for the excess, and the distiller who pays it cannot recover it from the collector.

Which charge was refused. To the charge as given and to that refused the defendant excepted, and he assigns for error the action of the court in that regard.

Mr. Assistant Attorney-General Smith for the plaintiff in error.

No counsel appeared for the defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Weitzel v. Rabe


text: Talk:Weitzel v. Rabe

title: Talk:Weitzel v. Rabe


text:
Weitzel v. Rabe/Opinion of the Court

We think the court below was right in holding that the producing capacity of the distillery was not in law reduced so as to make the distiller liable for material used in excess of the reduced capacity, until May 4. The original capacity, as estimated according to law, was 416.90 bushels of grain each twenty-four hours, but the spirits could not be properly developed and separated until the expiration of forty-eight hours from the time the grain was put into the mash,-that being the fermenting period allowed. According to the rulings of the Commissioner of Internal Revenue, grain has been used when the spirits have been properly developed and separated by distillation; and in determining, under the requirements of sect. 3309 of the Revised Statutes, whether a distiller has accounted for all grain used by him in a month, the practice has been to take the quantity of mash and beer on hand at the beginning of the month, add to it the quantity put into mash during the month, and from the total deduct the quantity of mash and beer on hand at the end of the month. The remainder is the quantity used. Under the law the distiller must pay a tax equal to eighty per cent of his estimated producing capacity, whether the spirits are actually produced or not. Consequently, to save himself from taxation beyond his actual production, he must keep his distillery running all the time within twenty per cent of its full capacity.

The application in this case, under sect. 3311 of the Revised Statutes, for a reduction of capacity, was made when the distillery was in full operation, and when mash or beer equal to the full producing capacity was in the process of distillation. The spirits could not be properly developed and separated from this material until the expiration of forty-eight hours from that time. This both the government officers and the distiller knew. Under these circumstances, the application for the reduction of capacity was evidently made with the intention of having the reduced capacity date from the time when it could go into effect without subjecting the distiller to a tax on excess of material used, by reason of the further distillation of what was then in mash. To accomplish this purpose a practice had grown up in the collection district where this distillery was situated to give three notices and close tubs on successive days after they had remained empty twenty-four hours. Forms seem to have been prepared by the revenue officers for such notices; and when the application for reduction was made in this case, the notices were signed in blank and left with the collector to be filled up by him in a way that would, according to the practice which prevailed, bring about the reduction at the proper time. The reduction was made. The distiller reported his actual product, and paid the taxes thereon in full. The amount now sued for was evidently paid on account of a constructive and not an actual use of material in excess of capacity. There is no pretence of bad faith. The distiller did what was required of him to get a reduction of capacity while his distillery was in operation. Under such circumstances he was entitled to have the capacity estimated while the reduction was going on, in such a way as not to charge him with material in mash when the change was applied for, as material used in excess of capacity.

Judgment affirmed.

NOTE.-In Weitzel v. Kayser and Weitzel v. Caldwell, error to the same court and submitted at the same time as the preceding case, MR. CHIEF JUSTICE WAITE remarked that they were in all material respects like it, and, upon its authority, the judgments were affirmed.

title: Weitzel v. Rabe/Opinion of the Court


text: Talk:Weitzel v. Rabe/Opinion of the Court


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Webber v. Virginia

ERROR to the Supreme Court of Appeals for the State of Virginia.

This case comes before this court on a writ of error to the Supreme Court of Appeals of the State of Virginia, and arose in this way: In May, 1880, the plaintiff in error, J. T. Webber, was indicted in the County Court of Henrico County, in that State, for unlawfully selling and offering for sale in that county, to its citizens, certain machines known as Singer sewing-machines, which were manufactured out of the State, without out having first obtained a license for that purpose from the authorities of the county, or having paid the tax imposed by law for that privilege.

The indictment was founded upon the forty-fifth and forty-sixth sections of the revenue law of the State, which are as follows:--

'45. Any person who shall sell, or offer for sale, the manufactured articles or machines of other States or Territories, unless he be the owner thereof and taxed as a merchant, or take orders therefor, on commission or otherwise, shall be deemed to be an agent for the sale of manufactured articles of other States and Territories, and shall not act as such without taking out a license therefor. No such person shall, under his license as such, sell or offer to sell such articles through the agency of another; but a separate license shall be required from any agent or employ e who may sell or offer to sell such articles for another. For any violation of this section, the person offending shall pay a fine of not less than fifty dollars nor more than one hundred dollars for each offence.

'46. The specific license tax upon an agent for the sale of any manufactured article or machine of other States or Territories shall be twenty-five dollars; and this tax shall give to any party licensed under this section the right to sell the same within the county or corporation in which he shall take out his license; and if he shall sell or offer to sell the same in any other of the counties or corporations of this State, he shall pay an additional tax of ten dollars in each of the counties or corporations where he may sell or offer their agents, selling articles manufactured in this State, shall pay the specific license tax imposed by this section.' Acts of Assembly 1875 and 1876, p. 184, c. 162, sects. 45, 46.

To the indictment the accused pleaded 'not guilty;' and on the trial it was proved that he had sold and offered to sell sewing-machines in Henrico County, as charged, but that at the time he was acting as agent or employ e of the Singer Manufacturing Company, a corporation created under the laws of New Jersey; that this company had a place of business in Richmond, Va., where it was licensed as a resident merchant, for the year beginning May 1, 1880, and had paid the required license tax, and where it kept a stock of machines for sale; that the machines sold by the accused were the property of the company, and were manufactured by it out of the State, and in accordance with specifications of a patent of the United States, granted in 1879, to one W. C. Hicks, and by him transferred to the company. It also appeared that the accused had not taken out a license to sell the machines in Henrico County, and was not himself taxed as a merchant, and had not taken orders for the machines on commission or otherwise.

On the trial his counsel requested the court to instruct the jury, that if they believed the Singer Manufacturing Company had paid for a general merchant's license for the year beginning May 1, 1880, and received such license, or that the machines sold were constructed according to the specifications of the patent held by the company, and that the accused was acting in the sales made only as its employ e, he was entitled to a verdict of acquittal. The court refused to give these instructions, and, at the request of the attorney for the Commonwealth, instructed the jury, in substance, that if they believed the accused had, at different times within the year, previous to the indictment, sold or offered to sell in Henrico County to its citizens Singer sewing-machines manufactured beyond the State, and at the time he was neither the manufacturer himself nor the owner of them, and was not taxed as a merchant in the county, and had not taken orders therefor on commission or otherwise, and had not obtained a license to sell the same in the county, and had not paid to the proper officer the tax imposed by law for selling the same in that county, they should find him guilty.

The jury found the accused guilty, and he was sentenced to pay a fine of fifty dollars and costs. On appeal to the Circuit Court of the county this judgment was affirmed, and on further appeal to the Supreme Court of Appeals of the State the judgment of the Circuit Court was affirmed. To review the latter judgment the case is brought here on writ of error.

Mr. C. V. Meredith for the plaintiff in error.

Mr. James G. Field, Attorney-General of Virginia, contra.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

title: Webber v. Virginia


text: Talk:Webber v. Virginia

title: Talk:Webber v. Virginia