text:
Bryan v. Kennett

This action, in form ejectment, involves the title to an undivided half of a tract of land in the county of Washington, state of Missouri, containing 640 acres, part of a larger tract containing 7,153 arpents, or 6,085 acres, known as the Mine a Breton survey, or as United States survey numbered 430, made in the name of Moses Austin, and dated August 14 and 15, 1817. In conformity with the instructions of the court, the jury returned a verdict for the defendants.

The plaintiffs in error, who were plaintiffs below, introduced in evidence a certified copy of the foregoing survey; also a certified copy of a recorded deed of February 15, 1820, by Moses Austin and wife, whereby the grantors bargained, sold, and conveyed to James Bryan, Levi Pettibone, and Rufus Pettibone, as tenants in common,-one undivided half to Bryan, and an undivided fourth each to the other grantees,-'the whole of that certain tract of land heretofore granted to the said Moses Austin by the Spanish government, and confirmed to him by the government of the United States, containing 7,160 arpents, and being one league square, situated at and near the Mine a Breton, in the county of Washington, and territory aforesaid, [Missouri,] being the only concession from the Spanish government to the said Moses Austin,' etc.; excepting from such conveyance several parcels, aggregating about 2,500 arpents, and which the grantor had previously conveyed to other persons. The deed also provided that the grantor would not warrant and defend the premises against a judgment for about $14,000, which the Bank of St. Louis had obtained in the superior court of the territory against him, for which debt that bank held, in addition, a mortgage on part of the premises conveyed; nor against three judgments in favor of Gamble's estate for about $1,029; nor against a judgment in favor of Alexander McNair, for about $450.

They also read in evidence an act of congress, approved February 14, 1874, as follows:

'CHAP. 29. An act to confirm certain land titles in the state of Missouri.

'Whereas, the baron of Carondelet, governor general of the territory of Louisiana, did, on the fifteenth day of March, anno Domini seventeen hundred and ninety-seven, instruct Zenon Trudeau, lieutenant governor of said territory, to place Moses Austin in possession of a league square of land at Mine a Breton, in said territory; and

'Whereas, the said Moses Austin did, in the year anno Domini seventeen hundred and ninety-eight, take possession of the said land by moving upon it with his family, and did improve the same by building dwelling-house, blacksmith shop, furnace, and other improvements; and

'Whereas, the said lieutenant governor did, on the fourteenth day of January, seventeen hundred and ninety-nine, order Antone Lulard, surveyor in said territory, to survey the said land, and put the said Austin legally in possession of the same, which survey, numbered fifty-two, containing seven thousand one hundred and fifty-three arpents, and three and two-thirds feet, was executed by said Antone Lulard, and a certificate of the same filed by him in November, anno Domini eighteen hundred; and

'Whereas, Don John Ventura Morales, then governor at New Orleans, did, in the year of our Lord eighteen hundred and two, in the name of the king of Spain, grant to the said Moses Austin the land so surveyed and located: Therefore,

'Be it enacted by the Senate and House of Representatives of the United States of America, in congress assembled, that the United States hereby release whatever title they have to said lands now numbered four hundred and thirty on the plat in the surveyor general's office, and in townships thirty-seven and thirty-eight, range two east, in the county of Washington and state of Missouri, containing seven thousand one hundred and fifty-three and thirty-two one-hundredths arpents (six thousand eighty-five and twenty-nine one-hundredths acres,) to the heirs, legal representatives, or assigns of said Moses Austin, according to their respective interests therein: provided, however, that this act shall not affect nor impair the title which any settler or other person may have acquired adverse to the title of said Moses Austin to any portion of said land.' 18 St. 16.

They also proved that James Bryan, one of the grantees in the deed of February 15, 1820, intermarried in 1813 with Emily M. Austin, a daughter of Moses Austin. There were five children of that marriage, one of whom, Stephen, was born July 16, 1814, and died in the succeeding month. Three others, the present plaintiffs, were born, respectively, December 14, 1815, September 25, 1817, and January 12, 1821; while the remaining one, Elizabeth, was born in 1822, and died in 1833. Moses Austin died in 1821 and James Bryan in 1822. The widow of the latter intermarried in 1824 with James F. Perry, of which marriage there were five children, two of whom died in infancy during the life-time of their parents, two others died without having been married, while the remaining one died in 1875, leaving several children. The surviving children of these two marriages, and their descendants, are the only living descendants of Moses Austin.

Upon the foregoing evidence the plaintiffs rested their case.

The defendants offered in evidence a duly certified copy of the order of Baron de Carondelet, dated March 15, 1797, to Zenon Trudeau. This paper, not being found in the files of the court, could not be made a part of the bill of exceptions; but its import is shown by the preamble of the foregoing act of congress. They also read in evidence the following documents: (1) A copy, certified under the hand and seal of the register of lands for the state of Missouri, of 'the plat of survey No. 52, containing 7,153 arps. 32 2/3 p's, in the right of Moses Austin, as the same appears of record in first part of registre d'arpentage, page 85, Soulard's surveys, together with field-notes of the same;' and a copy of the record of the grant to Austin, under date of July 5, 1802, by 'Don John Bonaventure Morales, treasurer of armies, intendant interim of the royal finances of the provinces of Louisiana and western Florida, superintendent, subdelegate, judge of arrivals, of lands, and king's domain,' whereby was granted to Austin 'complete property, use, and domain of the aforesaid 7,153 arpents 32 2/3 feet of land in superflcie, according to the results of figures and measures contained in the plat of survey drawn by said Soulard,' etc. This was accompanied by a copy of the testimony taken in 1808 in support of Austin's claim, from which it appears that he took possession of the land embraced in that grant as early as 1798, and made improvements thereon. 3 Amer. State Papers, 682. (2) The claim of Austin, as set out by him upon the United States record of land titles.

The defendants introduced a large amount of other documentary evidence, which, in the view taken by the court of the case, it is unnecessary to give in detail. Its object was to show the execution of a mortgage, under date of March 11, 1818, by Austin to the Bank of St. Louis, on the land in controversy, for the sum of $15,000; a judgment in the superior court of the territory of Missouri, in favor of the bank, against Austin, for $14,001.85, rendered October 1, 1819, and a judgment in the same court, in favor of McNair, for $493.94; executions upon those judgments issuing in 1819, which were levied upon all the right, title, claim, interest, and property of Austin in the land embraced in the Mine a Breton survey, (except three lots of described boundaries), and under which sales were had March 21, 1820; a deed by the sheriff, making the sale, to Charles R. Ross, who purchased as agent of the Bank of St. Louis, and to which no seal or scroll was affixed; duly recorded deeds from the bank to Charles R. Ross in trust; from Ross to Simpson, Price, Hammond, and Easton; from Simpson, Hammond, and Easton to Price; from Ross, agent, to Price; from Price to Smith and others in trust; from the latter, under date of June 29, 1822, to Louis Devotion; the death of Devotion, and the appointment and qualification of Savage and Walsh as his administrators; the resignation of Walsh, and the sale by Savage, as administrator, because of the insufficiency of personalty to meet debts of his intestate, and in conformity with the orders of the county court of St. Louis county, having jurisdiction in the premises, of Austin's interest in the land embraced in the Mine a Breton survey; its purchase by John Deane; the confirmation of such sale; and the subsequent conveyance to Deane by the administrator of Devotion on May 28, 1835.

On the first day of April, 1836, Deane, having received possession under his purchase, exhibited his bill in equity in the circuit court of Washington county, Missouri, against James F. Perry and Emily, his wife; Stephen Perry and Eliza Perry; the present plaintiffs in error; and a child, whose name was alleged to be unknown, but who was averred to have been born of the intermarriage of James F. and Emily Perry. The bill alleged that the defendants were out of the jurisdiction of the court and residents of the state of Texas; and that all of them, except James F. Perry and wife, were under the age of 21 years. It gave a detailed history of the title asserted by Deane under the before-mentioned proceedings, alleging, among other things, that the sheriff who made the deed for the land sold in 1820 under the foregoing executions, inadvertently and by mistake, omitted to affix a seal of scroll thereto; that the deed from Austin to James Bryan was without consideration, and was made with the intent, upon the part of Austin and Bryan, to hinder and delay the creditors of the grantor; and that Bryan took the coveyance with knowledge of and subject to the judgments and mortgages held against Austin by the Bank of St. Louis and McNair. The prayer of the bill was that the defendants in that suit, in whose behalf an interest in the land was asserted, be compelled by a decree of court to answer to the complainant for all the right, title, and interest each of them might have in the undivided moiety of the said tract of land, or 'that the right, title, and interest of James Bryan at the time of his death, and of said James F. Perry and Emily, his wife, in her right, and of the said William Bryan, Moses Bryan, Guy Bryan Stephen Perry, Eliza Perry, and the child, whose name is unknown, of the veyed by said Moses Austin, by his deed, executed the fifteenth of February, veyed by said Moses Austin, by his deed, executed the fifteenth of February, 1820, to said James Bryan as aforesaid, be vested in your orator, and for such other and further relief as to the court shall seem just,' etc. The bill was verified by the oath of the complainant, and he also made affidavit that the defendants (naming them) and the child, whose name was unknown, of the said Emily Perry, defendants in the bill, were non-residents of the state of Missouri.

On the twenty-sixth of July, 1836, an order was made by the court reciting that the order of publication, previously made by the clerk in vacation, had been duly published; and a guardian ad litem, John Brickey, was appointed in behalf of the infant defendants. On the next day an order was made reciting that the infant defendants (naming them) come 'by their guardian, Johh Brickey, and file their answer; and the said James F. Perry, and Emily, his wife, having been notified to appear at this term according to law, and answer the bill of the said complainant, or the same would be taken as confessed, and having failed to file any exceptions, plea, demurrer, or answer to the bill, it is ordered that the same be taken as confessed against the said James F. Perry and his wife.' It was further ordered and adjudged that the right, title, and interest of Perry and wife in the undivided moiety of the land conveyed by Austin's deed of February 15, 1820, to James Bryan, 'be vested in the said John Deane, the complainant, unless the said James F. Perry and wife appear at the next term of this court and file their answer to said bill.' On the thirtieth day of November, 1836, the following decree was passed:

'And now at this day comes the said John Deane, the complainant, by his solicitor, and the said William Bryan, Moses Bryan, Guy Bryan, Stephen Perry, Eliza Perry, and a child, whose name is unknown, of the said Emily Bryan, defendants, by their guardian, John Brickey, and by agreement of the parties aforesaid, it is consented that the bill be taken in lieu of allegations, and thereupon, neither party requiring a jury, all and singular the premises are submitted to the court, who doth find that the matters aforesaid, in form aforesaid in the bill alleged, are true; and the said James F. Perry, and Emily, his wife, having failed to appear at this term of the court, and file their answer to the bill of complaint, it is ordered and adjudged and decreed that the decree heretofore entered in this cause against them be, and the same is hereby, made final.

'And it is further ordered, adjudged, and decreed that the right, title, and interest of the said William Bryan, Moses Bryan, Gun Bryan, Stephen Perry, Eliza Perry, and a child, whose name is unknown, of the said Emily Bryan, defendants, in and to the undivided moiety of that certain tract of land situate in the county of Washington, in this state, heretofore granted to Moses Austin by the Spanish government, and confirmed to him by the government of the United States, containing seven thousand one hundred and sixty arpens, and being one league square, situate at and near the Mine a Breton in the county of Washington, excepting such parcels thereof as the said Moses Austin had prior to the fifteenth day of February, in the year one thousand eight hundred and twenty, sold and conveyed, and which parcels so excepted are, fourteen hundred and thirty-two arpens to John Rice Jones, forty-five arpens to the county of Washington, two hundred and sixteen arpens to a Mr. Perry, two hundred and forty-three arpens to a Mr. Ruggles, fifty-eight arpens to a Mr. McGready, four arpens to John Brickey, senior, three hundred and twenty-four arpens to Mr. Ficklin, forty-five arpens to Mr. McCormick, one hundred and sixteen arpens to Mr. Brocky, and are described in the deeds and contracts to said purchasers for the same, being the moiety conveyed as charged in the bill of complaint by Moses Austin to James Bryan, by his deed dated the fifteenth day of February, in the year one thousand eight hundred and twenty, be vested in the said John Deane, the complainant.

'And it is further ordered, adjudged, and decreed that the said defendants recover of the said complainant, John Deane, the costs and charges in this behalf expended.

'And it is further ordered, adjudged, and decreed that the said William Bryan, Moses Bryan, Guy Bryan, Stephen Perry, Eliza Perry, and a child, whose name is unkown, of the said Emily Bryan, respectively, be allowed each the time of six months after he or she respectively comes of age to appear and show cause against this decree entered as aforesaid against them.'

The present action was defended upon the following grounds: (1) That the defendants and those under whom they claim, had been in the open, continuous adverse possession of the premises in controversy for more than 30 years prior to the commencement of the action. (2) That the equitable title to the premises emanated from the government of the United States on the tenth of April, 1803; that the premises have not been in possession of the plaintiffs, or of any one under whom they claim, for a period of time exceeding 30 years prior to February 27, 1874, nor have plaintiffs, during that period, paid taxes thereon, but they have been paid by defendants and those under whom they claim; that on the tenth day of of June, 1814, all title, both legal and equitable, to said premises passed from the United States, and that no action to recover the same has been instituted, as provided by law, prior to the institution of the present suit. (3) That the decree in the equity suit, instituted on the first day of April, 1836, by John Deane, who then had actual possession of the premises, and under whom the defendants claim, estops the plaintiffs from maintaining their action, and from claiming under the deed from Moses Austin to James Bryan, Levi Pettibone, and Rufus Pettibone any interest or estate in the premises adverse to said defendants.

Without any reference to the defense based upon adverse possession, the jury were instructed to find, and did find, a verdict for the defendants. A general exception was taken by the plaintiffs to the 'instructions' given by the court.

Henry H. Denison, for plaintiff in error.

[Argument of Counsel from pages 188-190 intentionally omitted]

''Geo. D. Reynolds and F. J. Donovan'', for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:

title: Bryan v. Kennett


text: Talk:Bryan v. Kennett

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title: Talk:Bryan v. Kennett


text:
Bryan v. Kennett/Opinion of the Court

The objection that the record does not show a sufficient exception, upon the part of plaintiffs, to the instructions given to the jury, cannot be sustained. The series of propositions announced by the court, although styled instructions, embodies nothing more than the reasons that induced it to direct a verdict for the defendants. These propositions submitted no fact for the determination of the jury; for they were accompanied by a peremptory instruction to return a verdict for the defendants. As the bill of exceptions contains all the evidence, and, in addition, sets forth the exceptions reserved by the plaintiffs, in the progress of the trial, to the admission of testimony, it is competent for this court to determine whether the exceptions were well taken, and, also, whether there was error in directing a verdict for the defendants. If, upon all the evidence, excluding such as was incompetent, plaintiffs were entitled to go to the jury-and such is the contention here-there was error of law in instructing them to find for the defendants. We proceed, therefore, to consider such of the questions argued by counsel as are deemed necessary to the determination of the case.

By an act of congress, approved April 12, 1814, c. 52, (3 St. 121,) provision is made for the confirmation of the claims of every person or persons, or the legal representatives of any person or persons, claiming lands in the state of Louisiana, or the territory of Missouri, by virtue of any incomplete French or Spanish grant or concession, or any warrant or order of survey, which was granted prior to the twenty-fifth of December, 1803, for lands lying within that part of the state of Louisiana which composed the late territory of Orleans, or which was granted for lands lying within the territory of Missouri before the tenty day of Missouri before the tenth day it is contended that the Spanish grant of 1802, recited in the preamble of the act of February 14, 1874, was void, because made subsequent to the treaty of St. Ildefonso, concluded October 1, 1800, between Spain and France;-Act March 26, 1804, c. 38, § 14, (2 St. 287;) Foster v. Neilson, 2 Pet. 253, 304;-that if the grant to Austin was an incomplete grant, and, therefore, embraced by the act of 1814, that act operated only to confirm to him the equitable title to the land, the legal title remaining in the United States until the passage of the act of February 14, 1874; that the equitable title passed only under the restrictions and in the manner prescribed by the act of 1814; that, so far from Austin acquiring the legal title, the board of commissioners, organized under the act of congress, found that his title was not a grant made and completed prior to the treaty of St. Ildefonso, (2 Amer. State Papers, 678; 3 Amer. State Papers, 671; Burgess v. Gray, 16 How. 48;) that, for these reasons, Austin did not, at the date of the before-mentioned judgments, have any title which could be mortgaged or which was subject to levy and sale under execution; and, consequently, that all the proceedings which had for their object to acquire or reach his interest in the Mine a Breton survey are inoperative to defeat their rights under the act of February 14, 1874, by which, for the first time, the United States parted with the legal title.

It is not necessary, in this case, that we should define the precise nature and extent of the interest acquired by Austin in this land, prior to or apart from the grant of 1802 by Morales, then governor at New Orleans. The order of the governor general of the territory of Louisiana, in 1797, that he be placed in possession; his taking possession of the land and improving it in 1798; the orders of the lieutenant governor of the territory, in 1799, that the land be surveyed and Austin put legally in possession, followed by the execution of that order, and the recording of the certificate of survey, all prior to the treaty of St. Ildefonso, certainly operated to give Austin a property interest in the land, capable (even if the grant of 1802 was void) of being made a complete grant, with the consent of the United States. In Soulard v. U.S. 4 Pet. 511, it was said by Chief Justice MARSHALL that, in that treaty by which Louisiana was acquired, the United States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property; that the term 'property,' as applied to lands comprehends every species of title, inchoate or complete, and embraces rights which lie in contract, executory as well as executed; and that, in this respect, the relation of the inhabitants to their government was not changed; the new government taking the place of that which had passed away. In Strother v. Lucas, 12 Pet. 410, which involved the tile to real estate in St. Louis, the court said that 'the state in which the premises are situated was formerly a part of the territory, first of France, next of Spain, then of France, who ceded it to the United States by the treaty of 1803, in full propriety, sovereignty, and dominion, as she had acquired and held it; (Foster v. Neilson, 2 Pet. 301;) by which this government put itself in place of the former sovereigns and became invested with all their rights, subject to their concomitant obligations to the inhabitants;' that 'this court has defined property to be any right, legal or equitable, inceptive, inchoate, or perfect, which, before the treaty with France in 1803, or with Spain in 1819, had so attached to any piece or tract of land, great or small, as to affect the conscience of the former sovereign 'with a trust,' and make him a trustee for an individual, according to the law of nations, of the sovereign himself, the local usage or custom of the colony or district, according to the principles of justice and rules of equity;' and that 'the term 'grant,' in a treaty, comprehends not only those which are made in form, but also any concession, warrant, order, or permission to survey, possess, or settle, whether evidenced by writing or parol, or presumed from possession.'

So, in Hornsby v. U.S. 10 Wall. 242, it was said that by the term 'property,' as applied to lands, all titles are embraced, legal or equitable, perfect or imperfect. See, also, Carpenter v. Rannels, 19 Wall. 141; Morton v. Nebraska, 21 Wall. 660. And in Landes v. Perkins, 12 Mo. 238, the court said: 'It is a matter of history, of which this court will take judicial notice, that at the time of the cession of Louisiana to the United States, in that portion of the territory of which this state is composed, nineteen-twentieths of the titles to lands were like that involved in this case prior to its confirmation. There were very few complete grants. Most of the inhabitants were too poor to defray the expenses attending the completion of their titles, but they had faith in their government, and rested as quietly under their inchoate titles as though they had been perfect. As early as October, 1804, we find the legislature speaking of freeholders, and authorizing executions against lands and tenements. There being so few complete titles, the legislatures, in subjecting lands and tenements generally to execution, must have contemplated a seizure and sale of those incomplete titles which existed under the Spanish government. At the date of the act above referred to, no titles had been confirmed by the United States. An instance is not recollected in which a question has been made as to the liability of such titles as Clamorgan's, under the Spanish government, to sale under execution. It is believed that such titles have been made the subject of judicial sales without question ever since the change of government.' That such was the law of Missouri is recognized by this court in Landes v. Brant, 10 How. 370, 371, where, among other things, referring to a title derived from the Spanish government, and confirmation of which was obtained from a board of commissioners acting under the authority of the United States, it was said: 'The imperfect title, as then filed, was subject to seizure and sale by execution; the ultimate title, fect title demanded and granted was a confirmation and sanction by the political power of the imperfect title, and gave it complete legal validity.'

We are of opinion, therefore, that, even upon the assumption that the Spanish grant of 1802 was void, the interest which Austin acquired by the concession of 1797, the order of survey, and the recorded survey of 1799, in connection with his actual possession, taken under competent authority, was a property right which, at least as between private parties, could be transferred by mortgage or be reached by judicial process. But it is contended that the defendants cannot claim title under the before-mentioned proceedings in the courts of the territory and state of Missouri, and thereby defeat the rights of the plaintiffs under Austin's deed of 1820, because (1) it was not competent for the bank to have Austin's interest sold under execution on a judgment, while it held a mortgage on part of the premises sold, and thus cut off his right of redemption; (2) the sheriff's deed to Ross was void for want of a seal or scroll affixed thereto, (1 Terr. Laws Mo. 120, § 45; Moreau v. Detchemendy, 18 Mo. 522; Moreau v. Branham, 27 Mo. 351; Moreau v. Detchmendy, 41 Mo. 431; Grimsley v. Riley's Adm'rs, 5 Mo. 280; Harley v. Ramsey, 49 Mo. 309. (3) The deed from the bank was not under its corporate seal. And these matters all appearing upon the face of the record in the suit of Deane v. Bryan, instituted in 1836, no title passed by the decree therein, even if the court rendering it had jurisdiction.

These propositions were necessarily involved in the determination of that suit, and, so far as they impeach the correctness of that adjudication, are not open to re-examination in any collateral proceeding between the same parties or their privies, provided the court which rendered the decree had jurisdiction of the subject-matter and of the parties. Its jurisdiction to pass any final decree affecting the rights of non-resident minors is assailed only upon grounds to be now stated:

1. It is contended that there was no authority, under the laws of Missouri, to proceed against the non-resident minors by publication. Counsel for the plaintiffs refers to the act of March 17, 1835, regulating the practice at law in the courts of Missouri, and calls attention to the fact that, while it provides for actual service of process upon infants, no provision is made for service upon non-resident defendants by publication. And referring to the act of March 7, 1835, regulating the practice in chancery, he insists that, while a mode is therein prescribed for the service of process upon resident and non-resident defendants, no provision is made for service on non-resident minors. It is not questioned that, under the laws of Missouri, adult non-resident defendants in equity suits concerning real estate may be proceeded against by publication in such cases as that instituted by Deane in 1836; but it is contended that non-resident infants could not be brought before the court in that mode. In this view we do not concur. It appears from the Missouri statutes that the court which determined Deane's suit was a court of record, having exclusive original jurisdiction, in the county in which it was held, as a court of equity, 'in all cases where adequate relief cannot be had by the ordinary course of proceedings at law,' with authority 'to proceed therein according to the rules, usage, and practice of courts of equity, and to enforce their decrees by execution, or in any manner proper for a court of chancery;' also, that 'suits in equity concerning real estate, or whereby the same may be affected, shall be brought in the county within which such real estate, or a greater part thereof, is situate,' and, in any county, 'if all the defendants are non-residents;' and further, that 'in all cases where the court may decree the conveyance of real estate, or the delivery of personal property, they may by decree, pass the title of such property without any act to be done on the part of the defendants, when in their judgment it shall be proper; and may issue a writ of possession, if necessary, to put the party entitled into possession of such real or personal property, or may proceed by attachment or sequestration.' Rev. St. Mo. 1835, (2d Ed. 1840,) tit. 'Courts,' 155; Id. tit. 'Practice in Chancery,' art. 1, §§ 1, 2; art. 6, § 7.

By the same statute, provision is made for proceeding against defendants who are non-residents of the state, by publication, where the complainant, or any one for him, files with his bill an affidavit, stating their non-residence. Upon such affidavit being filed, the court, or the clerk in vacation, was authorized to make an order, directed to such non-residents, notifying them of the commencement of the suit, stating the substance of the allegations and prayer of the bill, and requiring them to appear on a day to be therein named (allowing sufficient time for publication) and answer the same, or the bill will be taken as confessed. Rev. St. Mo. 1835, tit. 'Practice in Chancery,' art. 1, § 7. Similar proceedings were prescribed as to persons interested in the subject-matter of the bill, whose names appeared from the verified allegations of the bill to be unknown to the complainant. Id. §§ 10, 11. While our attention has not been called to any statute of Missouri in force when Deane's suit was instituted, which, in terms, authorized publication against non-resident minors, there was no exception in their favor from the provision which permits that mode of bringing non-resident defendants before the court. They could be proceeded against by publication whenever the statute permitted such process against adults. 1 Daniell, Ch. Pr. 164, 659, c. § 2. The provision authorizing courts of equity to proceed according to the rules, usage, and practice of courts of chancery, had reference to the rules and practice which obtained in the English courts of chancery. Ruby v. Strother, 11 Mo. 417; Hendricks v. McLean, 18 Mo. 32; Creath v. Smith, 20 Mo. 113. In conformity with that practice, the court, in the case of Deane v. Bryan, appointed a guardian ad litem to defend the suit for the non-resident infant defendants. 1 Daniell, Ch. Pr. 160-163. And the record shows that he made defense.

2. But it is claimed that the decree was based upon the admissions by the guardian ad litem of the truth of the allegations of the bill, and was, for that reason, void. Without stopping to comment upon the authorities which counsel cite in support of this position, some of which hold that decrees pro confesso against infants are erroneous,-not that they are subject on that ground to collateral attack as void,-it is sufficient to say that the decree under examination was not of the character stated. The contention to the contrary rests entirely upon the recital in the decree that 'by agreement of the parties * *  * it is consented that the bill be taken in lieu of allegations.' The meaning of those words is shown by reference to the before-mentioned act regulating the practice in chancery, by which it is provided that, 'within such time as the court shall require, before the hearing of a cause at issue, each party shall set down distinctly the allegations made by him and denied by the other party, or which, by the course of proceedings in chancery, he is required to support by his testimony, and issues shall be made thereon accordingly, (Rev. St. Mo. 1835, tit. 'Practice in Chancery,' art. 3, § 1;) that the testimony shall be confined to the issue thus made, (Id. § 2;) and that 'the trial of all issues and matters of fact shall be by jury, or, if neither party require a jury, by the court, and the allegations shall be disposed of by a general or special verdict before a final decree shall be made, except such as shall be expressly decided by the court to be immaterial or irrelevant to the merits of the cause.' Id. § 5. The consent given was, not that the court might take the allegations of the bill to be true, but only that the 'bill be taken in lieu of allegations,' thereby dispensing with the requirement of the statute that the complainant should formally 'set down' the material allegations of his bill. The effect of the consent was to place the complainant under the necessity, imposed by statute as well as by the established rules in equity practice, of proving every allegation of fact necessary to authorize a decree against the non-resident infants. Nothing was confessed by the guardian ad litem, but, a jury being waived, the court found the matters alleged in the bill to true, and decreed accordingly. That the evidence upon which the court acted does not appear in the record, is, perhaps, because the suit was heard upon oral testimony, in connection with the official documents and records referred to in the bill. Id. § 7.

We have, then, a final decree of a court of superior general jurisdiction, rendered in a suit that involved the title to a tract of land embracing the premises in controversy, and situate in the county in which the court was held; in which suit the present plaintiffs, as non-resident minors, were parties defendant, having been brought, in the mode prescribed by the local law, before the court, by publication, and having made defense by guardian ad litem duly appointed, and by which decree it was adjudged that the right, title, and interest of the present plaintiffs and others in the said tract be vested in the complainant Deane, under whom the present defendants hold possession. The decree, as we have seen, passed the title without any conveyance from the non-resident defendants; for, by its terms, whatever title they held was vested in the complainant Deane. According to the settled principles of law, the plaintiffs are thereby estopped from asserting, in this collateral proceeding, any interest in the premises in controversy adverse to that of the defendants. It is not subject to collateral attack, because there is nothing on the face of the record which shows any want of jurisdiction in the court that rendered it. It was and is conclusive as to all the parties to that suit. and their privies, until reversed or modified on appeal, or unless, in proper time, it had been impeached, in some direct proceeding, and set aside or annulled.

One other question remains to be considered. Upon the supposition that Austin took nothing by the grant of 1802, and at most had but an equitable interest in the land capable of being enlarged into a complete title in the mode prescribed by the acts of congress, the plaintiffs claim that the rights of the United States were unaffected by any proceedings between private persons, involving Austin's title; and, consequently, that the legal title passed to them under that clause of the act of February 14, 1874, which releases whatever title the United States may have 'to the heirs, legal representatives, or assigns of said Moses Austin.' In other words, that the decree in 1836 does not preclude them from accepting from the government the legal title to the premises in controversy. We have seen that the property interest of Austin, whatever it was, passed, before the act of 1874, under valid judicial proceedings to other than the present plaintiffs. If congress intended to pass the title of the government to the heirs simply, there was no necessity to include his 'legal representatives or assigns.' But there could have been no such intention; for it was common knowledge, as it was the settled law, that such inchoate interest or title as Austin acquired from the Spanish government, prior to October 1, 1800, could, as between private persons, be transferred or reached by judicial process. We concur with the court below in holding that congress intended, by the act of 1874, to recognize the claim of Austin arising from the concession, survey, and grant recited in its preamble, and to release to the assignee of such claim the remaining title (if any such there was) of the United States. And those who purchased under the proceedings referred to, were assignees within the meaning of the act. There was no purpose to disturb their title or possession. On the contrary, the sole object of this legislation, so far as it may be ascertained from the debates in congress, was to assure those who thus acquired possession, whether by contract or by operation of law, that they would not be disturbed by any assertion of claim upon the part of the United States. It originated with the representatives in congress from Missouri, whose avowed purpose was to protect the interests of their immediate constituents. The necessity of this act arose from a then recent opinion of the commissioner of the general land office, that the legal title to the land within the Austin claim was still in the United States. In order to quiet the fears of those 'who have been in possession for half a century, claiming the land adversely against everybody, as well as the United States,' the act of 1874 was passed. It had no other object. Cong. Rec. vol. 2, pt. 1, (43d Cong. 1st Sess. 1874,) pp. 716, 910.

There is no error in the record, and the judgment must be affirmed. It is so ordered.

title: Bryan v. Kennett/Opinion of the Court


text: Talk:Bryan v. Kennett/Opinion of the Court


text:
Page:Travels with a Donkey In The Cevennes.djvu/98

80 the building which is set apart for MM. les retraitants. It was clean and whitewashed, and furnished with strict necessaries, a crucifix, a bust of the late Pope, the Imitation in French, a book of religious meditations, and the Life of Elizabeth Seton, evangelist, it would appear, of North America and of New England in particular. As far as my experience goes, there is a fair field for some more evangelisation in these quarters; but think of Cotton Mather! I should like to give him a reading of this little work in heaven, where I hope he dwells; but perhaps he knows all that already, and much more; and perhaps he and Mrs. Seton are the dearest friends, and gladly unite their voices in the everlasting psalm. Over the table, to conclude the inventory of the room, hung a set of regulations for MM. les retraitants: what services they should attend, when they were to tell their beads or meditate, and when they were to rise and go to rest. At the foot was a notable N. B.: "Le temps libre est employé à l'examen de conscience, à la confession, à faire de bonnes résolutions," etc. To make good


text:
Northern Liberty Market Company v. Kelly

This was a writ of error to reverse a judgment for the defendant in an action brought on April 4, 1884, by a corporation formed for the purpose of erecting a market-house in the city of Washington, and carrying on a marketing business there, upon 20 promissory notes made by him to the plaintiff, dated January 1, 1875, for $171.05 each; two payable in 52 months, two in 58 months, two in 64 months, and two at the end of each succeeding 6 months, the last two being payable in 106 months after date, and all bearing interest at the yearly rate of 8 per cent. Also upon a promissory note made by the defendant, dated August 5, 1881, for $1,881.60, payable in 90 days after date; and upon a promissory note, dated March 11, 1881, for $394.08, made by one William S.C.ross, and guarantied by the defendant, and payable in 60 days after date; each of the last two notes bearing interest at the yearly rate of 6 per cent.

The judgment was rendered upon a case stated by the parties, in substance as follows: The plaintiff is, and since May 18, 1874, has been, a corporation, duly incorporated under the general incorporation act in force in the District of Columbia, (Rev. St. D. C. §§ 553-593,) by which it became a corporation for 20 years, and capable of suing and being sued, and of taking, holding, and conveying any real and personal estate necessary to enable it to carry on its business. On January 1, 1875, being the owner in fee of a parcel of land in the city of Washington, and having built a market-house thereon, it offered for sale by public auction leases for 99 years, renewable forever, of the stalls in the market-house, at a specified rent, the highest bidder being entitled to his option of the stalls. At the sale the defendant was the highest bidder for a stall, and made and delivered to the plaintiff, in part payment of the purchase money for the option of that stall, the 20 notes for $171.05 each, and afterwards received from the plaintiff such a lease of that stall, and took and has since retained possession of the stall under the lease. On August 5, 1881, the defendant, with full knowledge of the foregoing facts, including the fact that by the terms of incorporation the plaintiff's corporate existence was limited to 20 years, made and delivered to the plaintiff the note for $1,881.60, in compromise of the 20 original notes, and upon express agreement that if this note should not promptly paid at maturity, the plaintiff might surrender it to the defendant, and thereupon the plaintiff's cause of action upon the original notes should revive. The note for $394.08 was made by Cross, and guarantied by the defendant, under like circumstances, and in consideration of the surrender of two other notes similar in amount and consideration to the 20 notes before mentioned. All the notes in suit remain unpaid, otherwise than by the giving of the note for $1,881.60, and all are still held by the plaintiff.

R. T. Merrick and J. J. Darlington, for plaintiff in error.

James G. Payne, for defendant in error.

[Argument of Counsel inteneionally omitted]

Mr. Justice Gray delivered the opinion of the court. He recited the facts as above stasted, and continued:


text: Talk:Northern Liberty Market Company v. Kelly


text:
Northern Liberty Market Company v. Kelly/Opinion of the Court

The plaintiff insists that the original notes were valid, because a corporation, empowered to hold and convey real estate for the objects of its incorporation, may convey an estate in fee or any less estate in lands which it has purchased, and may therefore make a valid lease of them for any term of years, though extending beyond the limit of its corporate existence. But it is unnecessary to express a definitive opinion upon that point, because it is agreed, in the case stated that the defendant gave, in compromise of the original 20 notes for $171.05 each, the new note for $1,881.60. If the plaintiff had exceeded its corporate powers in making the original contract, yet it had authority to compromise and settle all claims by or against it under that contract. Morville v. American Tract Soc. 123 Mass. 129. The compromise of the disputed claim on the original notes was a legal and sufficient consideration for the new note. Cook v. Wright, 1 Best & S. 559; Tuttle v. Tuttle, 12 Metc. 551; Riggs v. Hawley, 116 Mass. 596. By the terms of the agreement of compromise, the plaintiff's cause of action on the original notes was not to revive, in case of the new note not being paid at maturity, except upon the surrender of this note to the defendant. The plaintiff, not having surrendered it, but holding and suing upon it as well as upon the original notes, has not performed the condition on which the revival of the right of action on the original notes depended. It follows that the plaintiff cannot recover in this action on the original notes for $171.05 each, but is entitled to recover on the new note for $1,881.60, and also, for like reasons, on the note for $394.08, made by Cross and guarantied by the defendant.

Judgment reversed, and case remanded, with directions to enter judgment for the plaintiff on the twenty-first and twenty-second counts.


text: Talk:Northern Liberty Market Company v. Kelly/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Bowden, John (d.1750)


text:
Tucker v. Masser

C. J. Rowell and L. C. Rockwell, for plaintiffs in error.

No brief filed for defendant in error, or argument made.

FIELD, J.

title: Tucker v. Masser


text: Talk:Tucker v. Masser

title: Talk:Tucker v. Masser


text:
Tucker v. Masser/Opinion of the Court

This is an action of ejectment for the possession of three lots in what is known as Stevens' and Leiter's subdivision of the city of Leadville, in Lake county, Colorado. The complaint is in the usual form under the practice established in that state, where the action is brought to obtain possession of land alleged to be part of the public domain, but of which the plaintiff claims to have a better right of possession than his adversary. It alleges that on the tenth of March, 1879, the plaintiff was and still 'is the owner, by prior actual possession on the public domain, and by superiority of possessory title, and entitled to the immediate possession' of the described premises, and that they are of the value of $5,000; that on the twentieth of that month the defendants wrongfully and unlawfully entered upon the premises, and wrongfully and unlawfully withheld them from the plaintiff, to his damage of $1,000; that the rents and profits of the premises, from the date of the ouster, have been $200 a month, and aggregate $3,000. The plaintiff, therefore, asks judgment for the possession of the premises, and for the damages, rents, and profits. The answer of the defendants denies the general allegations of the complaint, and avers that they are the owners of the premises, and entitled to their possession.

On the trial the plaintiff offered proof tending to show prior occupation of the premises, the erection of some buildings thereon, his forcible dispossession by the defendants, and the damages he had sustained. The defendants introduced in evidence a patent of the United States to William H. Stevens and Levi Z. Leiter, bearing date November 5, 1878, which convered the premises in controversy, and traced title from the patentees through sundry mesne conveyances. The patent was for a placer mining claim, and the plaintiff was allowed, against the objections of the defendant, to introduce, for the purpose of impeaching the patent, the proceedings before the land department of the government upon which it was issued. And the court decided that as it appeared upon such proceedings that the patent was issued upon four mining locations made after 1870 united in one claim, embracing 290 acres, or thereabouts, the patent was invalid and passed no title to the patentees; holding, in effect, that several distinct mining locations could not after that year be thus united in one claim for which a single patent could be issued. The plaintiff accordingly recovered.

The validity of a patent for a placer mining claim, composed of distinct mining locations, some of which were made after 1870, and together embracing over 160 acres, was sustained in the case of Smelting Co. v. Kemp, before us at October term, 1881, (104 U.S. 636.) All the questions presented in the case at bar were there fully considered after two arguments of counsel, and we have seen no reason to question the soundness of the conclusions we then reached. The judgment below must, therefore, upon the authority of that case, be reversed, and the cause be remanded for a new trial; and it is so ordered.

title: Tucker v. Masser/Opinion of the Court


text: Talk:Tucker v. Masser/Opinion of the Court


text:
Cardwell v. Americal River Bridge Company

The American river is a branch of the Sacramento river in California. It is entirely within the state, and navigable for small steam-boats and barges from its mouth to the town of Folsom, a distance of 30 miles. By its junction with the Sacramento river, vessels starting upon it can proceed to the bay of San Francisco, and thence to adjoining states and foreign countries. It is therefore a navigable water of the United States, and, as such, is under the control of the general government in the exercise of its power to regulate foreign and interstate commerce, so far as may be necessary to insure its free navigation.

The defendant is a corporation organized under the laws of California, and, pursuant to the authority conferred by an act of its legislature, has constructed a bridge over the American river, of 20 feet in width and 300 feet in length, which is used as a roadway, across the stream. Its floor is about 14 feet above extreme low water, and about 5 feet above extreme high water; and the bridge is without a draw or opening for the passage of vessels. Steam-boats and other craft are therefore obstructed by it in the navigation of the river.

The complainant alleges that he is the owner of a large tract of land, bordering on the river, below Folsom, and raises many tons of grain each year; that he is also the owner of a steam-boat and other vessels by which he could ship his grain down the river but for the obstruction caused by the bridge; that there are also large quarries of granite on his land sufficient to supply the markets of Sacramento and San Francisco for years, and also large deposits of cobble-stone which have a value for paving, and, but for the obstruction, he could ship the granite and cobble-stone by his vessels and sell them at a profit, whereas the expense of sending them by rail or other means open to him are such as to deprive him of all profit on them. He therefore files his bill against the company, and prays that it may be enjoined from maintaining the bridge across the river until a draw shall have been placed in it sufficient to allow steam-boats, vessles, and water-craft, capable of navigating the stream, to pass and repass, freely and safely. A demurrer to the bill was sustained, and the bill dismissed, and the case is brought here on appeal.

J. J. Scrivner, for appellant.

[Argument of Counsel from pages 206-208 intentionally omitted]

A. T. Britton and J. B. Haggin, for appellee.

Mr. Justice Field delivered the opinion of the court. He recited the facts as stated above, and continued:


text: Talk:Cardwell v. Americal River Bridge Company


text:
Cardwell v. Americal River Bridge Company/Opinion of the Court

The questions thus presented are neither new nor difficult of solution. Except in one particular, they have been considered and determined in many cases, of which the most important are Willson v. Blackbird Creek Marsh Co. 2 Pet. 245; The Wheeling Bridge Case, 13 How. 564; Gilman v. Philadelphia, 3 Wall. 713; Pound v. Turck, 95 U.S. 459; Escanaba Co. v. Chicago, 107 U.S. 678; S.C.. 2 SUP. CT. REP. 185; and Miller v. Mayor of New York, 109 U.S. 385; S.C.. 3 SUP. CT. REP. 228. In these cases the control of congress over navigable waters within the states so as to preserve their free navigation under the commercial clause of the constitution, the power of the states within which they lie to authorize the construction of bridges over them until congress intervenes and supersedes their authority, and the right of private parties to interfere with their construction or continuance, have been fully considered, and we are entirely satisfied with the soundness of the conclusions reached. They recognize the full power of the states to regulate within their limits matters of internal police, which embraces among other things the construction, repair, and maintenance of roads and bridges, and the establishment of ferries; that the states are more likely to appreciate the importance of these means of internal communication and to provide for their proper management, than a government at a distance; and that, as to bridges over navigable streams, their power is subordinate to that of congress, as an act of the latter body is, by the constitution, made the supreme law of the land; but that until congress acts on the subject their power is plenary. When congress acts directly with reference to the bridges authorized by the state, its will must control so far as may be necessary to secure the free navigation of the streams.

In Willson v. Blackbird Creek Marsh Co. a dam had been constructed across a small navigable river in the state of Delaware, by authority of its legislature; and this court held that the obstruction which it caused to the navigation of the stream was an affair between the government of the state and its citizens, in the absence of any law of congress on the subject. In the case of Gilman v. Philadelphia a bridge across the Schuylkill river, connecting East and West Philadelphia, had been constructed by authority of the legislature of Pennsylvania. It was without a draw, and prevented the passage of vessels to wharves above it although the river was tide-water and navigable to them, and commerce had been carried on to them for years in all kinds of vessels. The owner of the wharves filed a bill to prevent the erection of the bridge, alleging that it would be an unlawful obstruction to the navigation of the river and an illegal interference with his rights, and claimed that he was entitled to be protected by an injunction against the progress of the work, and to a decree for its abatement should it be proceeded with to completion. But the court held that the state had not exceeded the bounds of her authority in permitting its construction, and until the power of the constitution was made effective by appropriate legislation, the power of the state was plenary, and its exercise, in good faith, could not be made the subject of review here. The court observed that it was not to be forgotten that bridges, which are connecting parts of turnpikes, streets, and railroads, were means of commercial transportation, as well as navigable waters; that the commerce which passed over a bridge might be much greater than would be transported on the water obstructed; and that it was for the municipal power to weigh the considerations that applied to the subject, and to decide which should be preferred, and how far either should be made subservient to the other.

These cases illustrate the general doctrine, now fully recognized, that the commercial power of congress is exclusive of state authority only when the subjects upon which it is exerted are national in their character, and admit and require uniformity of regulations affecting alike all the states, and that when the subjects within that power are local in their nature or operation, or constitute mere aids to commerce, the states may provide for their regulation and management until congress intervenes and supersedes their action. The complainant, however, contends that congress has intervened and expressed its will on this subject by a clause in the act of September 9, 1850, admitting California as a state into the Union, which declares 'that all the navigable waters within the said state shall be common highways and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefor.' 9 St. 454. This declaration is similar to that contained in the ordinance of 1787, for the government of the territory of the United States north-west of the Ohio river, so far as the latter relates to the navigable waters flowing into the Mississippi and the St. Lawrence. And in Escanaba Co. v. Chicago we held, with respect to the state of Illinois, that the clause was superseded by her admission into the Union, for she then became entitled to and possessed of all the rights of domain and sovereignty which belonged to the original states. The language of the resolution admitting her declared that it was on 'an equal footing with the original states in all respects whatever;' so that, after her admission, she possessed the same power over rivers within her limits that Delaware exercised over Blackbird creek, and Pennsylvania over Schuylkill river.

The act enabling the people of Wisconsin territory to form a constitution and state government, and for admission into the Union, contains a similar clause. And yet, in Pound v. Turck, which was before this court at October term, 1877, it was held that a statute of that state which authorized the erection of a dam across a navigable river within her limits was not unconstitutional, in the absence of other legislation by congress bearing on the case The court does not seem to have considered the question as affected by the clause in the enabling act. That clause is not, it true, commented on in the opinion, but the section containing it is referred to, and the declaration that navigable streams within the state are to be common highways, must have been in the mind of the court. It held, however, that the case was governed by the decisions in the Delaware and Pennsylvania cases, observing that there were in the state of Wisconsin, and other states, many small streams navigable for short distances from their mouths in one of the great rivers of the country, by steam-boats, but whose greatest value, in water carriage, was as outlets to saw-logs and lumber, coal, and salt, and that, in order to develop their greatest utility in that regard, it was often essential that dams, booms, and piers should be used, which are substantial obstructions to general navigation, and more or less so to rafts and barges; but that to the legislature of the state the authority is most properly confided to authorize these structures where their use will do more good than harm, and to impose such regulations and limitations in their construction and use as will best reconcile and accommodate the interests of all of all concerned. And the court added that the exercise of this limited power may all the more safely be confided to the local legislatures, as the right of congress is recognized to interfere and control the matter whenever deemed necessary.

The clause, therefore, in the act admitting California, quoted above, upon which the complainant relies, must be considered, according to these decisions, as in no way impairing the power which the state could exercise over the subject if the clause had no existence. But, independently of this consideration, we do not think the clause itself requires the construction which the court below placed upon it, and which counsel urges so earnestly for our consideration. That court held that the clause contains two provisions: one that the navigable waters shall be a common highway to the inhabitants of the state, as well as to citizens of the United States; and the other, that they shall be forever free from any tax, impost, or duty therefor; that these provisions are separate and distinct, and that one is not an adjunct or amplification of the other. Possibly, some support is given to that view by language used in the opinion in Escanaba Co. v. Chicago. In that case all the bridges over the Chicago river had draws for the passage of vessels, and we there held that a bridge constructed with a draw could not be regarded, within the ordinance of 1787, as an obstruction to the navigation of the stream. We were not required to express any further opinion as to the meaning of the ordinance. But upon the mature and careful consideration which we have given in this case to the language of the clause in the act admitting California, we are of opinion that if we treat the clause as divisible into two provisions, they must be construed together as having but one object, namely, to insure a highway equally open to all without preference to any, and unobstructed by duties or tolls, and thus prevent the use of the navigable streams by private parties to the exclusion of the public, and the exaction of any toll for their navigation; and that the clause contemplated no other restriction upon the power of the state in authorizing the construction of bridges over them whenever such construction would promote convenience of the public. The act admitting California declares that she is 'admitted into the Union on an equal footing with the original states in all respects whatever.' She was not, therefore, shorn by the clause as to the navigable waters within her limits of any of the powers which the original states possessed over such waters within their limits. Decree affirmed.


text: Talk:Cardwell v. Americal River Bridge Company/Opinion of the Court


text:
Page:Travels with a Donkey In The Cevennes.djvu/99

Rh resolutions, indeed! You might talk as fruitfully of making the hair grow on your head. I had scarce explored my niche when Brother Ambrose returned. An English boarder, it appeared, would like to speak with me. I professed my willingness, and the friar ushered in a fresh, young little Irishman of fifty, a deacon of the Church, arrayed in strict canonicals, and wearing on his head what, in default of knowledge, I can only call the ecclesiastical shako. He had lived seven years in retreat at a convent of nuns in Belgium, and now five at our Lady of the Snows; he never saw an English newspaper; he spoke French imperfectly, and had he spoken it like a native, there was not much chance of conversation where he dwelt. With this, he was a man eminently sociable, greedy of news, and simple-minded like a child. If I was pleased to have a guide about the monastery, he was no less delighted to see an English face and hear an English tongue. He showed me his own room, where he passed his time among breviaries, Hebrew bibles, and the Waverley novels. Thence he led me to the


text:
Voss v. Fisher

E. A. West and L. L. Bond, for appellant.

E. Taggart, for appellee.

WOODS, J.

title: Voss v. Fisher


text: Talk:Voss v. Fisher

title: Talk:Voss v. Fisher


text:
Voss v. Fisher/Opinion of the Court

Neck-pads for horses, to which the letters patent relate, were made of various kinds and used long before application for the patent was filed. They were attached to the horse-collar at its upper end, immediately below the point where the two arms of the collar are buckled together. They rested on the neck of the horse, and their object was to prevent the galling of the horse's neck by the upper part of the collar. The improvement in neck-pads covered by the letters patent of the appellee was described as follows in the specification: 'This invention relates to a new device for protecting the necks of horses between the upper ends of the collar to prevent galling. For this purpose pieces of leather, cloth, or other material have heretofore been used, but without the desired success. Pads could not be made, as their inner faces could not be kept clear from wrinkles or protuberances, which are more injurious than the omission of a protecting device. My invention consists in producing a pad which may be attached to the collar, and which is perfectly smooth on the under side, the leather used on the under side being crimped in order to obtain the desired shape. The pad is so shaped that if fits a horse's neck between the arms of the collar, it being thick on top and tapering to wards the ends. The under side of the pad is formed by a sheet of leather, which is crimped in order to have its ends turned up without producing wrinkles; the stuffing in the pad is of hay, or any other suitable material. On the outer side of the pad, near the ends of the same, are straps which are fitted around the collar to prev nt longitudinal displacement of the pad.' The claim was as follows: 'The neck-pad having an inner lining of crimped leather, and provided with straps to allow its being fastened to the collar as herein shown and described for the purpose specified.'

The thing made and sold by the appellant, which was charged to be an infringement of the appellee's patent, was a single piece of crimped leather having a piece of sheet metal, so shaped as to fit it, riveted to its upper side in order to stiffen it and preserve its crimped form, and provided with straps to fasten it to the collar. The specification of appellant's patent describes a stuffed pad. The drawing by which it is illustrated shows a stuffed pad, and the certified model of the invention from the patent-office, exhibited at the hearing, is a stuffed pad.

It is clear that if the patent is to be construed as a combination consisting of a stuffed pad, having an inner lining of crimped leather and straps to fasten the pad to the collar, the appellant does not infringe, for he does not use one of the elements of the combination, namely, the stuffed pad, nor its equivalent. Prouty v. Ruggles, 16 Pet. 336; Gould v. Rees, 15 Wall. 187; Rowell v. Lindsay, ante, 507, and cases therein cited. But counsel for appellee insists that the patent was not intended to cover a combination, but merely the forming of the under side of the pad by the use of a smooth sheet of leather crimped in order to have its ends turned up without producing wrinkles.

As already stated, the appellant does not use the crimped leather as the inner lining of a stuffed pad. He uses the crimped leather stiffened by a metal plate as a substitute for a stuffed pad with a crimped leather lining. There is, therefore, no infringement, unless the patent of the appellee should be construed to cover simply a piece of leather crimped to the proper shape, and having its under side smooth and free from wrinkles, to be used to keep the upper part of the collar from galling the neck of the horse. If the patent is so construed it must be held void, for the evidence in the record is conclusive to show that such a device was made, sold, and used by many persons years before the date of the appellee's patent. The result of these views is that the decree of the circuit court must be reversed, and the cause remanded to that court, with directions to dismiss the bill.

title: Voss v. Fisher/Opinion of the Court


text: Talk:Voss v. Fisher/Opinion of the Court


text:
Caillot v. Deetken

J. J. Scrivner, for plaintiff in error.

John F. Hanna and ''Jas. M. Johnston'', for defendant in error.

MILLER, J.

title: Caillot v. Deetken


text: Talk:Caillot v. Deetken

title: Talk:Caillot v. Deetken


text:
Caillot v. Deetken/Opinion of the Court

It has been repeatedly decided by this court that where no return has been made to a writ of error by filing the transcript of the record here, either before or during the term of the court next succeeding the filing of the writ in the circuit court, this this court has acquired no jurisdiction of the case, and, the writ having then expired, can acquire none under that writ, and it must, therefore, be dismissed. Villabolos v. U.S. 6 How. 81; Castro v. U.S. 3 Wall. 46; Mussina v. Cavazos, 6 Wall. 358; Murdock v. Memphis, 20 Wall. 624. In the case before us the writ of error was filed in the circuit court in which the record was March 16, 1882, and the transcript that was returned with it was filed in this court November 28, 1884. Two full terms of the court had passed, therefore, between the filing of the writ of error in the circuit court and its return with the transcript into this court. It must, therefore, be dismissed for want of jurisdiction.

title: Caillot v. Deetken/Opinion of the Court


text: Talk:Caillot v. Deetken/Opinion of the Court


text:
Cheong Ah Moy v. United States

H. S. Brown and ''Thos. D. Riordan'', for plaintiff in error.

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

MILLER, J.

title: Cheong Ah Moy v. United States


text: Talk:Cheong Ah Moy v. United States

title: Talk:Cheong Ah Moy v. United States


text:
Cheong Ah Moy v. United States/Opinion of the Court

The plaintiff in error here is a Chiness woman, who, arriving at San Francisco from China, was not permitted to land in that city, by reason of the acts of congress of May 6, 1882, and the amendatory act of 1884, and, being forcibly kept on board the vessel, sued out a writ of habeas corpus to obtain her release. On a hearing in the circuit court of the United States it was ordered that she be returned on board the vessel in which she came, or some other vessel of the same line, to be carried back to China; and she was placed in the custody of the marshal, who was directed to execute the order. On undertaking to do this, it was found that the vessel had sailed, and the marshal placed his prisoner in jail for safe-keeping until another vessel should be at hand to remove her. Her counsel, upon this state of facts, applied to the circuit court for permission to give bail on behalf of the woman and have her released from custody. The judges of the circuit court were opposed in opinion on the question of granting this motion, and, having overruled it, have certified the division to this court. In the mean time it is made to appear to us, by the return of the marshal, and by affidavits, that on the second day of October, three days after the order was made overruling the motion, and ten days before the writ of error herein was served by filing it in the clerk's office of the circuit court, the marshal had executed the original order of the court by placing the prisoner on board the steam-ship New York, one of the Pacific Mail steam-ships, about to start for China, and that she departed on said vessel on the seventh day of October. It thus appears that the order of deportation had been fully executed, and the petitioner in the writ of habeas corpus placed without the jurisdiction of the court and of the United States six days before the writ of error was filed in the circuit court and several days before it was issued. The question, therefore, which we are asked to decide is a moot question as to plaintiff in error, and if she was permitted to give bail it could be of no value to her, as the order by which she was remanded has been executed, and she is no longer in the custody of the marshal or in prison. This court does not sit here to decide questions arising in cases which no longer exist in regard to rights which it cannot enforce.

The writ of error is dismissed.


text: Talk:Cheong Ah Moy v. United States/Opinion of the Court


text:
Price v. Pennsylvania R Company

A statute of Pennsylvania, passed in 1851, makes the provision, now become common, for a recovery by the widow or children of a person whose death was caused by the negligence of another of damages for the loss of the deceased.

A statute passed April 4, 1868, provides that 'where any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the road, works, depot, and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employe, the right of action or recovery in all such cases against the company shall be such only as would exist if such person were an employe: provided, that this section shall not apply to passengers.' The plaintiff in error sued the defendant in for the loss of her husband by a death which the jury, by the following special verdict, found to be caused by the negligence of the company's servant or servants:

'We find for the plaintiff in the sum of ($5,000) five thousand dollars, subject to the opinion of the court on the question of law reserved, to-wit: We find that A. J. Price at the time of his death was route agent of the United States post-office department, duly appointed and commissioned, his route being on the Western Pennsylvania Railroad from Allegheny City to Blairsville, in the state of Pennsylvania; that his duties as such agent required him to be on the mail car on the mail train of said road to receive and deliver mail matter; that for the purpose of his business and that of the postal department, and in accordance with the laws of the United States and the regulations of the post-office department, and acceptance thereof by the railroad company, one end of the baggage car on the mail train was divided off and fitted up for the use of the department in carrying the mails, and that the duties of the said route agent required him to be in said room in the car during the running of the train; that said Price was daily on said train, making a round trip from Allegheny City to Blairsville and return; that on the twenty-third day of July, 1877, while at his post in his room on said car, Mr. Price was killed in a collision of the mail train coming west with another train of the defendant company going east; that said collision was caused by the negligence or misconduct of the conductor and engineer in charge of the train going east in neglecting or disobeying orders, and in failing to take necessary precaution to avoid a collision.

'We find that the Pennsylvania Railroad Company, by resolution dated April 16, 1868, accepted the provisions of the act of assembly, approved fourth April, 1868, (P. L. p. 59,) and that [at the] time of the collision the Pennsylvania Railroad Company was operating the Western Pennsylvania Railroad under lease.

'If, under this finding of facts, and under the acts of congress and acts of assembly offered in evidence, and the postal regulations in evidence, the court should be of the opinion that the plaintiffs, as widow and children of deceased, are entitled to recover, then judgment to be entered on the verdict in favor of the plaintiffs.

If the court should be of the opinion that the law is with the defendant, then judgment to be entered in favor of the defendant non obstante veredicto.'

Upon this verdict the judge of the trial court held that the deceased was a person engaged in and about the train, within the meaning of the act of 1868, but that he was also within the proviso as a passenger, and gave judgment for plaintiff on the verdict. The judgment was reversed by the supreme court of Pennsylvania on the ground that the deceased was not a passenger within the meaning of the proviso, and a judgment was rendered for defendant, to which this writ of error is prosecuted.

Mr. Charles A. Ray, Mr. Edward A Newman, and Mr. Thomas M. Bayne for plaintiffs in error.

[Argument of Counsel from page 220 intentionally omitted]

Mr. John Dalzell argued for the defendant in error.

Mr. Justice Miller deliverd the opinion of the court. He recited the facts as above stated, and continued:

title: Price v. Pennsylvania R Company


text:
Page:Travels with a Donkey In The Cevennes.djvu/100

82, into the chapter-house, through the vestry, where the brothers' gowns and broad straw hats were hanging up, each with his religious name upon a board,—names full of legendary suavity and interest, such as Basil, Hilarion, Raphael, or Pacifique; into the library, where were all the works of Veuillot and Chateaubriand, and the Odes et Ballades, if you please, and even Molière, to say nothing of innumerable fathers and a great variety of local and general historians. Thence my good Irishman took me round the workshops, where brothers bake bread, and make cart-wheels, and take photographs; where one superintends a collection of curiosities, and another a gallery of rabbits. For in a Trappist monastery each monk has an occupation of his own choice, apart from his religious duties and the general labours of the house. Each must sing in the choir, if he has a voice and ear, and join in the haymaking if he has a hand to stir; but in his private hours, although he must be occupied, he may be occupied on what he likes. Thus I was told that one brother was engaged with literature; while Father Apollinaris


text: Talk:Price v. Pennsylvania R Company

title: Talk:Price v. Pennsylvania R Company


text:
Price v. Pennsylvania R Company/Opinion of the Court

The plaintiff argues here, and insisted throughout the progress of the case in the state courts, that, by reason of certain laws of the United States as applied to the facts found in the verdict of the jury, the decedent was a passenger, and the supreme court erred in holding otherwise. These laws are thus cited in the brief of plaintiff's counsel: 'Section 8, act March 3, 1865, (13 St. at Large U.S. 506,) provides that 'for the purpose of assorting and distributing letters and other matter in railway post-offices, the postmaster general may, from time to time, appoint clerks who shall be paid out of the appropriation for mail transportation.' Section 4000, Rev. St. U.S. requires that 'every railway company carrying the mail shall carry on any train which may run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same."

We do not think these provisions either aid or govern the construction of the proviso in the Pennsylvania statute. The person thus to be carried with the mail matter, without extra charge, is no more a passenger, because he is in charge of the mail, nor because no other compensation is made for his transportation, than if he had no such charge; nor does the fact that he is in the employment of the United States, and that defendant is bound by contract with the government to carry him, affect the question. It would be just the same if the company had contracted with any other person who had charge of freight on the train to carry him without additional compensation. The statutes of the United States, which authorize this employment and direct this service, do not, therefore, make the person so engaged a passenger, or deprive him of that character, in construing the Pennsylvania statute. Nor does it give to persons so employed any right, as against the railroad company, which would not belong to any other person in a similar employment by others than the United States.

We are therefore of opinion that no question of federal authority was involved in the judgment of the supreme court of Pennsylvania, and the writ of error is accordingly dismissed.


text: Talk:Price v. Pennsylvania R Company/Opinion of the Court


text:
County of Dakota v. Glidden

J. M. Woolworth, R. P. Ranney, and A. P. Hodges, for defendant in error.

A. J. Poppleton and John M. Thurston, for plaintiff in error.

[Argument of Counsel from page 223 intentionally omitted]

MILLER, J.

title: County of Dakota v. Glidden


text: Talk:County of Dakota v. Glidden

title: Talk:County of Dakota v. Glidden


text:
County of Dakota v. Glidden/Opinion of the Court

This case comes before us on a motion to dismiss the writ of error. The ground of this motion is that since the judgment was rendered, which plaintiff in error now seeks to reverse, the matter in controversy has been the subject of compromise between the parties to the litigation, which is in full force and binding on plaintiff and defendant, and which leaves nothing of the controversy presented by the present record to be decided. The evidence of this compromise is not found in the record of the case in the circuit court, nor in any proceedings in that court, and it is argued against the motion to dismiss that it cannot, for that reason, be considered in this court. It consists of duly-certified transcripts of proceedings of the board of commissioners of Dakota county, who are the authorized representatives of that county in all its financial matters, of receipts of the parties or their attorneys, and of affidavits of persons engaged in the transaction. These are undisputed on the other side, either by contradictory testimony or by the brief of counsel who appear to oppose this motion. They leave no doubt of the fact, if it is competent for this court to consider them, that shortly after the judgment against the county in favor of Glidden was rendered, the parties entered into negotiations to settle the controversy, which, after due deliberation and several formal meetings of the board of commissioners, resulted in such settlement. The judgment in the case was rendered on certain coupons for interest due on bonds issued by said county to aid in constructing railroads. These bonds bore interest at the rate of 10 per cent. per annum, and became due in the year 1896. By the new agreement the county took up the bonds and the coupons on which judgment was rendered, and issued new bonds bearing 6 per cent. interest, the principal payable in the year 1902. These new bonds were delivered to plaintiff and accepted by him in satisfaction of his judgment and of his old bonds, and these latter were delivered by him to the county authorities and destroyed by burning.

There can be no question that a debtor against whom a judgment for money is recovered, may pay that judgment, and bring a writ of error to reverse it, and if reversed can recover back his money. And a defendant in an action of ejectment may bring a writ of error, and, failing to give a supersedeas bond, may submit to the judgment by giving possession of the land, which he can recover, if he reverses the judgment, by means of a writ of restitution. In both these cases the defendant has merely submitted to perform the judgment of the court, and has not thereby lost his right to seek a reversal of that judgment by writ of error or appeal. And so, if, in the present case, the county had paid the judgment in money, or had levied a tax to raise the money, or had in any other way satisfied that judgment without changing the rights of the parties in any other respect, its right to prosecute this writ of error would have remained unaffected. But what was done was a very different thing from that. A new agreement, on sufficient consideration, was made, by which the judgment itself, the coupons on which it was recovered, and the bonds of which these coupons were a part, were all surrendered and destroyed, and other bonds and other coupons were accepted in their place, payable at a more distant date and with a lower rate of interest, with the effect of extinguishing the judgment now sought to be reversed, so that the plaintiff in that judgment could not issue execution on it, though there is no supersedeas bond to secure its payment. It is a valid compromise and settlement of a much larger claim, but it includes this judgment necessarily. It extinguishes the cause of action in this case. If valid, it is a bar to any prosecution of the suit in the circuit court, though we should reverse this judgment on the record as it stands for errors which may be found in it. To examine these errors and reverse the judgment is a fruitless proceeding, because when the plaintiff has secured his object the relation of the parties is unchanged, and must stand or fall on the terms of the compromise.

It is said that to recognize this compromise and grant this motion is to assume original instead of appellate jurisdiction. But this court is compelled, as all courts are, to receive evidence dehors the record affecting their proceeding in a case before them on error or appeal. The death of one of the parties after a writ of error or appeal requires a new proceeding to supply his place. The transfer of the interest of one of the parties by assignment or by a judicial proceeding in another court, as in bankruptcy or other wise, is brought to the attention of the court by evidence outside of the original record, and acted on. A release of errors may be filed as a bar to the writ. A settlement of the controversy, with an agreement to dismiss the appeal or writ of error, or any stipulation as to proceedings in this court, signed by the parties, will be enforced, as an agreement to submit the case on printed argument alone, within the time allowed by the rule of this court.

This court has dismissed several suits on grounds much more liable to the objection raised than the present case, as in the case of Cleveland v. Chamberlain, 1 Black, 419, where the plaintiff in error, having bought out the defendant's interest in the matter in controversy, and having control of both sides of the litigation in the suit, still sought for other purposes to have the case decided by this court. On evidence of this by affidavits the court dismissed the writ. Similar cases in regard to suits establishing patent rights or holding them void by the inferior courts, as in Lord v. Veazie, 8 How. 254; Wood Paper Co. v. Heft, 8 Wall. 336, have been dismissed, because the parties to the suit having settled the matter, so that there is no longer a real controversy, one or both of them was seeking a judgment of this court for improper purposes, in regard to a question which exists no longer between those parties.

It is by reason of the necessity of the case that the evidence by which such matters are brought to the attention of the court must be that not found in the transcript of the original case, because it occurred since that record was made up. To refuse to receive appropriate evidence of such facts for that reason is to deliver up the court as a blind instrument for the perpetration of fraud, and make its proceedings by such refusal the means of inflicting gross injustice. The cases and precedents we have mentioned are sufficient to show that the proposition of plaintiff in error is untenable.

In the case of Board of Liquidation v. Louisville & N. R. Co. 109 U.S. 223, S.C.. 3 SUP. CT. REP. 144, a question arose on the presentation of an order made by the authorities of the city of New Orleans to dismiss a suit in this court in which that city was plaintiff in error. The order was based on a compromise between those authorities and the railroad company, which the board of liquidation, intervening here, alleged to be without authority, and fraudulent. The court here did not disregard the compromise or the order of the city to dismiss the case; but, considering that the question of authority in the mayor and council of the city to make the compromise, and of the alleged fraud in making it, required the power of a court of original jurisdiction to investigate and decide thereon, continued the case in this court until that was done in the proper court. But when this was ascertained in favor of the action of the mayor and council, the suit was dismissed here on the basis of that compromise order.

In the case before us we see no reason to impeach the transaction by which the new bonds were substituted for the old, and for the judgment we are asked to reverse; and the writ of error is accordingly dismissed.


text: Talk:County of Dakota v. Glidden/Opinion of the Court


text:
Page:Travels with a Donkey In The Cevennes.djvu/101

Rh busies himself in making roads, and the Abbot employs himself in binding books. It is not so long since this Abbot was consecrated, by the way; and on that occasion, by a special grace, his mother was permitted to enter the chapel and witness the ceremony of consecration. A proud day for her to have a son a mitred abbot; it makes you glad to think they let her in. In all these journeyings to and fro, many silent fathers and brethren fell in our way. Usually they paid no more regard to our passage than if we had been a cloud; but sometimes the good deacon had a permission to ask of them, and it was granted by a peculiar movement of the hands, almost like that of a dog's paws in swimming, or refused by the usual negative signs, and in either case with lowered eyelids and a certain air of contrition, as of a man who was steering very close to evil. The monks, by special grace of their Abbot, were still taking two meals a day; but it was already time for their grand fast, which begins somewhere in September and lasts till Easter, and


text: Board of County Commissioners of the County of Anderson v. Beal


text: Talk:Board of County Commissioners of the County of Anderson v. Beal