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Prentice v. Pickersgill/Opinion of the Court

ERROR to the Circuit Court for the Western District of Pennsylvania.

The twenty third rule of this court declares that 'in all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages shall be awarded at the rate of ten per centum per annum on the amount of the judgment; and the said damages shall be calculated from the date of the judgment in the court below until the money is paid.' With this rule in force Prentice sold to Pickersgill a lot of ground having a mortgage of $5000 on it; Pickersgill paying $1500 in cash, and Prentice covenanting to pay off the mortgage. The covenant not being kept, and the property having been sold on a foreclosure of the mortgage, Pickersgill sued Prentice on the covenant. Prentice pleaded that as 'he claimed, supposed, and understood,' the covenant was satisfied and discharged, he having paid Pickersgill $1500 back; but that a dispute arising between the parties as to whether anything more ought to be paid, the matter was agreed to be left to one Henry, who said and decided that $1500 more ought to be paid.

Replication that there was no such reference; that Henry did not make any award or decision; and that the said defendant did not pay to the plaintiff the sum of $1500, or any sum of money, for or on account of any award or determination; concluding to the country.

To this replication, after issue joined, and when the cause was on the trial list, and ready for trial, Prentice demurred, assigning for cause that the replication did not properly traverse the plea; that it introduced new matter in the allegation that the defendant did not pay to the plaintiff $1500, or any sum of money, for or on account of the award, which allegation ought to have concluded with a verification, and not to the country, and that it was colorable, uncertain, &c.

The demurrer being overruled, the case went to trial, before Grier, J., when the defendant wholly failing to prove any reference, or submission, or award by Henry, the jury found for the plaintiff $2618; the plaintiff having been credited by them with the $1500 paid back. Judgment having gone accordingly, a writ of error was taken by the defendant to this court; no counsel appearing for him in this court, nor any brief being filed.

Messrs. Veech and Henry, for the other party, defendant in error:

The averment in the replication, that the defendant did not pay the sum of $1500, or any sum on account of any award or determination made by Henry, was immaterial, and at most matter of surplusage. Independently of that averment, the replication was a complete answer to the plea. Moreover, the demurrer was too late. It was filed after issue joined, and when the cause was on the trial-list, and ready for trial. The case was tried before the jury on its merits, and the defendant below utterly failed to make out any defence to the plaintiff's claim. The plaintiff had credited him with the $1500, and the verdict was for the residue. In point of fact, the defendant below had no defence, and his demurrer, like his writ of error, was intended for delay.

The writ of error in this case was sued out merely for delay. The judgment will therefore be affirmed under the twenty-third rule, with ten per centum damages on the amount of the judgment below.

AFFIRMED ACCORDINGLY.

At the close of the term another case, The Chicago City Railway Co. v. Bour, a suit brought by a passenger against a railroad company to recover damages for an injury done to him, by reason of the negligence of their servants in running one of their cars, was affirmed with like damages, there having been no exception to the rulings or instructions of the court, and the court observing that the case seemed 'to have been brought simply for delay.' See also The Douro, 3 Wallace, 566.


text: Talk:Prentice v. Pickersgill/Opinion of the Court

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


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United States ex rel. v. Council of Keokuk (73 U.S. 514)

ERROR to the Circuit Court for the Northern District of Illinois.

The case was submitted by

Mr. Howell, for the plaintiff in error, and by Messrs. Strong and Craig, contra.

Mr. Justice CLIFFORD stated the case and delivered the opinion of the court.


text: Talk:United States ex rel. v. Council of Keokuk (73 U.S. 514)


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United States ex rel. v. Council of Keokuk (73 U.S. 514)/Opinion of the Court

The General Assembly of the State of Iowa, by a law passed January 29th, 1857, authorized the corporation defendants to levy a direct tax of one hundred and fifty thousand dollars for the benefit of the Keokuk, Mount Pleasant, and Muscatine Railroad Company, and to issue the bonds of the city for the amount, payable in one, two, and three years, with interest coupons annexed, at the rate not exceeding ten per cent. per annum. They voted the tax and issued the bonds, and the relator became the bona fide holder for value of twenty-five of the bonds before their maturity. Payment being refused after their maturity, he brought suit on the same in the Circuit Court of the United States for the District of Ioa, against the defendants, but the judges of the court being interested in the matters involved, the cause was duly transferred to the Circuit Court of the United States for the Northern District of Illinois, as appears by the record.

Judgment was rendered in favor of the relator in the latter court October 19th, 1864, for the sum of thirty-six thousand five hundred and forty-nine dollars, and costs of suit. Defendants having no corporate property, and the relator being without any other remedy, applied to the Circuit Court where the judgment was rendered for a mandamus to compel the payment. Pursuant to the application, the Circuit Court granted the alternative writ, commanding the defendants to make an appropriation to pay the amount, or show cause on the return day of the writ why they should not obey its commands.

In their return the defendants admit that the General Assembly passed the law, that they issued the bonds, and that the relator recovered judgment as alleged, but aver that on the ninth day of October, 1863, before the relator recovered his judgment, they were enjoined by the State court from levying any general or special tax upon the taxable property within the limits of the defendant corporation for the payment of the bonds of the relator principal or interest-and that they cannot pay the judgment without being guilty of contempt for violating that injunction. Other defences were set up in the return, but it is not necessary to notice any other, as they were not sustained by the court.

Relator demurred to every defence set up in the return. Reference, however, will only be made to the demurrer to the defence founded on the injunction granted by the State court. Causes of demurrer shown were as follows: (1) That the writ does not enjoin the defendants from paying over the taxes already received, but only enjoins the future collection of such taxes. (2) That the relator was not a party to those proceedings, and that the State court had no jurisdiction for the want of proper parties. (3) That the State court cannot oust the Circuit Court of its jurisdiction to enforce its own judgments.

Parties were heard and the court overruled the demurrer, holding that the injunction of the State court prevented the Circuit Court from issuing a peremptory mandamus. Standing upon his demurrer, the relator excepted to the ruling of the court and sued out this writ of error.

Principal question in the case is whether the injunction of the State court had the effect to take away the jurisdiction from the Circuit Court to issue the writ of mandamus as prayed by the relator. Transferred, as the cause had been, from the Circuit Court for the District of Iowa, it is quite clear that power of the court to which it was transferred was exactly the same in respect to the controversy as belonged to the tribunal where it was commenced.

Created, as the defendant corporation was, by the law passed by the General Assembly of Iowa, and being a municipal corporation in that State, it is quite clear that all the rights, duties and obligations of the corporation must be ascertained and defined by the laws of that State.

Modes of process and forms of process in that State, unless changed by rules of court, are the same in suits at common law as were used in the highest court of original jurisdiction in the State at the time the Federal courts were organized in that State. State processes and modes of process were first adopted by the act of the twenty-ninth of September, 1789; and by the act of the eighth of May, 1792, those regulations were made permanent, but they were confined in their application to the old States. Subsequent enactment extended those regulations to the new States admitted prior to the first day of August, 1842, when the last general provision upon the subject was passed.

Iowa was admitted into the Union on an equal footing with the original States in all respects, and by the supplementala ct passed on the same day, it is provided that the laws of the United States, which are not locally inapplicable, shall have the same force and effect within that State as elsewhere within the United States. Legal effect of that provision was, that the Process Act of the nineteenth of May, 1828, became applicable in the Federal courts of that State.

Where the debt of a municipal corporation has been reduced to judgment, and the judgment creditor has no other means to enforce the payment, the remedy in the Supreme Court of the State is mandamus to compel the proper officers of the municipality to levy and collect a tax for that purpose.

By virtue of the Process Acts the relator is undoubtedly entitled to the same remedy in the Circuit Court for that district, unless the power of the court to issue the writ is taken away or perpetually suspended by the injunction issued by the State court. Discussion of that question is unnecessary, as this court decided, at the present term, in the case of Riggs v. Johnson County, that a State court cannot enjoin the process of the Federal courts.

Orders for an injunction issued by State court are as inoperative upon the process of the Circuit Court of that district as they would be if directed to the process of a Circuit Court in any other district of the United States, because the State and Federal courts, in their sphere of action, are independent of any such control.

Judgment REVERSED and the cause remanded, with directions to sustain the demurrer of the relator, and for further proceedings in conformity to the opinion of the court.

Mr. Justice MILLER did not sit in this case.


text: Talk:United States ex rel. v. Council of Keokuk (73 U.S. 514)/Opinion of the Court


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United States ex rel. v. Council of Keokuk (73 U.S. 518)

ERROR to the Circuit Court for the Northern District of Illinois: a case submitted by Mr. Howell, for the plaintiff in error, and by Messrs. Strong and Craig, contra:

Mr. Justice CLIFFORD stated the case and delivered the opinion of the court.


text: Talk:United States ex rel. v. Council of Keokuk (73 U.S. 518)


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United States ex rel. v. Council of Keokuk (73 U.S. 518)/Opinion of the Court

Amended information of the relator states that the corporation defendants, in pursuance of the authority of an act of the General Assembly of the State, issued one hundred corporate bonds, each for the sum of one thousand dollars, redeemable in twenty years from date, with eight per cent. interest, payable semi-annually. Interest coupons were attached to the bonds, and by their terms they were payable to bearer. Statement of the relator is, that he became the holder of a large number of the bonds with the coupons attached in the ordinary course of business, before their maturity, and for a valuable consideration.

By the statute of the State and the ordinances of the city, the proper officers of the city were required to levy and collect, in addition to the other taxes, an annual tax upon all property within the corporate limits of the city, subject to municipal taxation, to pay the bonds and coupons as the same should become due. Defendants neglected to pay the coupons as the interest became payable, and the relator brought suit against them in the Circuit Court of the United States for the District of Iowa; but the suit, pendente lite, was transferred to the Circuit Court for the Northern District of Illinois, because the judges of the court for the former district were interested in the matters in controversy. Judgment was rendered for the relator, October 19th, 1864, in the latter district, for the sum of five thousand four hundred and twenty-seven dollars and fifty cents damages, being the interest due on one hundred and eight coupons held by the relator.

Authority to issue the bonds was conferred by the act amending the h arter of the city, passed January 22d, 1853, and the ordinance of the city directing their issue bears date February 5th, 1856, and is fully set forth in the record. Recovery of the judgment, however, did not avail the relator, as the defendants still refused to pay, and they had no corporate property liable to seizure on execution; and being without any other remedy, he applied to the Circuit Court in which the judgment was rendered for a mandamus, commanding the proper authorities of the city, at their next meeting, to levy a sufficient tax to pay the judgment, costs, and interest. Order for the alternative writ was entered May 15th, 1865, and it was made returnable on the first Monday of July, in the same year.

Defendants admit in their answer that the bonds with coupons annexed were issued as alleged; and they also admit the judgment, and that the relator made demand that they should levy and collect a tax for the payment of the sum recovered, but allege that they were perpetually enjoined, on the nineteenth day of September, 1853, from levying or collecting any tax for the payment of the principal or interest of those bonds, and that they are utterly unable to obey the commands of the alternative writ.

Reference is made to that part of the answer only which is material in this investigation. Relator demurred to the entire answer, and the court sustained the demurrer to the defence set up, that the bonds and coupons were issued without authority, and that they were null and void, but overruled it as to the defence that the proper officers of the city had been enjoined from levying and collecting any tax to pay the judgment. Causes of demurrer shown in respect to that defence were, that the State court could not oust the Circuit Court of jurisdiction to enforce its own judgments, and that the decree of the State court could not bar him from the right to use the process of the Circuit Court to collect his judgment, as he was not a party to those proceedings. Ruling of the Circuit Court, however, was otherwise, and the relator excepted and removed the cause into this court by writ of error.

Sole defence relied on in this court is, that the defendants have been absolutely and perpetually enjoined from levying and collecting the tax by the decree of the State court, and the defendants admit that the only question is, whether the facts set forth in that part of their return to the alternative writ constitute a good defence to the petition and information of the relator. They also admit that the writ of mandamus in such a case is not a prerogative writ, and we may add that it is settled law in this court that it is not even a new suit, but is a writ in aid of jurisdiction which has previously attached, and that under such circumstances it becomes the proper substitute for an execution to enforce the judgment. Viewed in that light, the granting of the writ is no hardship upon the defendants, as they are exposed to no injustice. Alleged hardship is imaginary, and the argument deduced from that suggestion falls to the ground as soon as it is shown that the injunction of the State court is inoperative to defeat the force and effect of Federal process.

Grant that an injunction issued by a State court may have that effect, and the judicial powers confided to the Supreme Court, and such inferior courts as Congress may from time to time ordain and establish, are of no value, as they can never execute their judgments without the consent of the State courts. Fears that the officers of the corporation may be exposed to imprisonment or actions of trespass, without adequate remedy or redress, are unfounded and groundless. Careful consideration was given to that point in the case of Riggs v. Johnson County, decided at the present term, and we refer to the opinion in that case as furnishing a satisfactory answer to those suggestions. Suffice it to say, that we adhere to the rule that the injunction issued by a State court is inoperative to control, or in any manner to affect process or proceedig in the Circuit Courts of the United States.

Judgment REVERSED and the cause remanded, with instructions to sustain the demurrer of the relator, and for further proceedings in conformity to the opinion of the court.

Mr. Justice MILLER did not sit in this case.


text: Talk:United States ex rel. v. Council of Keokuk (73 U.S. 518)/Opinion of the Court


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The Ouachita Cotton

THE case thus entitled was a matter of three appeals from the Circuit Court of the United States for Illinois in a question of 395 bales of cotton which had been seized during the rebellion by a flotilla of the United States. The matter was thus:

An act of Congress of July 13th, 1861, passed soon after the outbreak of the late rebellion, enacts (§ 5) that

'It may and shall be lawful for the President, by proclamation, to declare that the inhabitants of such State, or any section or part thereof where such insurrection exists, are in a state of insurrection against the United States, and thereupon all commercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States, shall cease and be unlawful so long as such condition of hostility shall continue.'

The act proceeds:

'And all goods and chattels, wares and merchandise, coming from said State or section into the other parts of the United Stats, and all proceeding to such State or section by land or water, shall, together with the vessel or vehicle conveying the same, or conveying persons to or from such State or sections, be forfeited to the United States.'

The same section also contained this proviso:

'That the President may, in his discretion, license and permit commercial intercourse with any such part of said State or section, the inhabitants of which are so declared in a state of insurrection, in such articles, and for such time, and by such persons, as he, in his discretion, may think most conducive to the public interest, and such intercourse, so far as by him licensed, shall be conducted and carried on in pursuance of rules and regulations prescribed by the Secretary of the Treasury.'

On the 16th of August, 1861, the President issued a proclamation, declaring 'that the inhabitants of Louisiana and some other States named (except the inhabitants of that part of the State of Virginia lying west of the Alleghany Mountains, and of such other parts of that State and the other States hereinbefore mentioned as might maintain a loyal adhesion to the Union and Constitution, or might be from time to time occupied and controlled by forces of the United States engaged in the dispersion of said insurgents), were in a state of insurrection against the United States, and that all commercial intercourse between the same and the inhabitants thereof, with the exceptions aforesaid, and the citizens of other States, and other parts of the United States, is unlawful, and shall remain unlawful, until such insurrection shall cease or has been suppressed.'

With this statute and this proclamation in force, three distinct parties, American citizens or subjects,-namely, Withenbury & Doyle, The New Orleans Bank, and one Leon Queyrous, purchased during the rebellion, but after New Orleans was restored, by capture, May 6th, 1862, to the Federal jurisdiction, a quantity of cotton from the late rebel confederation. The cotton had been raised on the Ouachita, in Louisiana, and in 1862 sold by its owners to the confederation, who left it stored on the plantation where it was raised.

The circumstances under which the three parties above-named purchased respectively from the Confederate government were these:

1. Withenbury & Doyle were citizens of Ohio. The outbreak of the rebellion found them in Louisiana owners and masters there of two steamers running in lawful commerce between New Orleans and Upper Louisiana. Before very long the boats were in the service of the rebel confederacy,-wholly by compulsion, as was asserted by Withenbury & Doyle, and against every loyal ef ort on their part to keep their boats from it. The Confederacy, as in time of war, had seized them, it was alleged, meaning to pay what it deemed a fair price. Being thus indebted to Withenbury & Doyle for the use of the boats, these persons took the cotton (still on the plantation where it was raised) in payment, making the negotiation by which they became owners, with one McKee, an agent of the Confederate government. Such was their title to the cotton bought by them.

2. The title of the Bank was thus: On the capture of New Orleans by the forces of the United States, the Louisiana State Bank, a moneyed corporation in that city, found itself with a large amount of Confederate currency on hand, which, as was said, it had been compelled by the rebel confederacy to receive on deposit. It being valueless at New Orleans after the capture, and its effect-if it could be put into circulation in the regions yet under rebel control-being likely to be the yet further discrediting of the rebel credit-while if cotton could be got for it and brought into loyal regions-that would add to the resources of these last, the commander of the United States forces in New Orleans, in December, 1862, authorized the bank at its desire to dispose of this currency in the purchase of cotton within the rebel lines. Under this permission, an agent of the bank passed through the United States lines into Upper Louisiana, and purchased the cotton in question (or some other which to facilitate transfer he exchanged for it) of a sub-agent of McKee, the agent already named, in August, 1863.

3. Queyrous's purchase was thus: He was a naturalized citizen of the United States, residing in New Orleans, and, in March, 1864, purchased the cotton of Buckner, an agent of the Confederate States.

Soon after all this, to wit, in April, 1864, a flotilla of gunboats of the United States sailed up the Ouachita River, found the cotton still upon the plantation, where it had been raised, and which was in a part of Louisiana then, as, from the origin of the rebellion, it had been, subject to the power of the rebel confederacy-and seizing 935 bales of it, transported it to Cairo, where it was libelled in the District Court there, as prize of war.

Withenbury & Doyle intervened as claimants, on sale of it, to its proceeds, under their title as stated, for the whole 935 bales. A firm named Grieff & Zunts, who had purchased from the bank, came in as succeeding to its title for the same total amount; while a French firm, foreigners, resident in France, Le More & Co., who had purchased 830 bales from Queyrous, intervened for that proportion of the capture.

By order of the court the claims were consolidated, and having been considered, were dismissed on the ground that the transactions of the original parties, Withenbury & Doyle, the Bank and Queyrous, were 'void;' the inhabitants of the loyal and disloyal districts having been rendered incapable of any dealing with each other, so long as the rebellion continued; prohibition being the rule, and license the exception; and the license in this case not having been by the President, who alone was capable of giving one. None of the original parties, therefore, who dealt with the rebels, had any title, and neither Grieff & Zunts, nor the house of Le More in France, who stood in the shoes of two of them, could get through them one that should be different.

The claims of all three intervenors were accordingly dismissed, and without the question between the captors and the United States having been disposed of, the correctness of this decree of dismissal was made by this appeal the question now before the court.

The appeals were argued elaborately in this court, by Mr. R. M. Corwine, representing Withenbury & Doyle; Mr. Goold, representing Grieff & Zunts; and Messrs. Louis Janin and J. A. McClernand, representing Le More. These counsel made common case as against the United States and the captors, and particular case as against each oh er. The disposition of the court against all the appellants in common, dispenses with any note of the argument on the latter heads. As against the United States it was argued—

1. That the property libelled being the property of loyal citizens of the United States, and within their territorial jurisdiction, inland, could not lawfully be the subject of capture by the naval forces of the United States as prize of war or otherwise.

2. As long as the rebels held, with the strong hand of war, any of the territory of the United States, to the exclusion of the laws and officers of the United States, that citizens thereof, then in such territory, might lawfully sell to or buy property of those rebels, whether the latter had such transaction individually or under the assumed name of a government; provided, it did not appear that the same was done with the intention and for the purpose of aiding such assumed government in its unlawful usurpations.

3. That it was lawful for any parties having licenses granted to them by the proper authorities of the United States for that purpose, to carry on trade in the region where this cotton was; and that two of these purchasers had such licenses.

4. That whatever loyal citizens did, in aid of the rebel cause, by compulsion, or in order to avoid military conscription, would not deprive them of their legal and constitutional rights as citizens of the United States.

5. That property acquired as this was, although it remained within the lines of the insurgents, was not stamped with the disabilities of enemy's property, but was entitled to the care of the government so soon as removed beyond the enemy's lines.

6. That the Non-intercourse Act of July 13th, 1861, being in violation of the general rights of the citizens of one State to trade with those of every other, is to be construed strictly; that it forfeits no goods but those 'coming from said State or section INTO the other parts of the United States, and all proceeding TO such State.' The property must, therefore, be caught in the predicament of passing from one State to an other.

7. That as respected the case of Le More & Co., especially, it was obvious that whatever might be the case if the cotton had been yet owned by Queyrous, that Le More & Co. being citizens of a foreign and neutral state and purchasers bona fide for value, held the property discharged of all liability; that certainly as a neutral they could have purchased of the Confederacy directly, and that their right was not impaired by its coming through the channel that it did.

Mr. Stanbery, A. G., and Mr. Ashton, special counsel of the United States, with Mr. L. Weldon, for the captors, placed the matter chiefly on the broad principle declared in Griswold v. Waddington, as well as in later and in earlier cases. In the case named, Chancellor Kent thus expressed himself:

'There is no authority in law, whether that law be national, maritime, or municipal, for any kind of private, voluntary, unlicensed business communication or intercourse with an enemy. It is all noxious, and in a greater or less degree it is criminal. Every attempt at drawing distinctions has failed; all kinds of intercours, except that which is hostile, is illegal. The law has put the sting of disability into every kind of voluntary communication and contract with an enemy, which is made without the special permission of the government. There is wisdom and policy, patriotism and safety, in this principle, and every relaxation of it tends to corrupt the allegiance of the citizen, and prolong the calamities of war.'

The act of Congress and the Proclamation were yet over and above this general principle of law.

2. The President alone had power to license; a matter twice decided by this court.

3. Queyrous having thus had no title whatever, Le More, who got no more than he had, could not have a good one.

Mr. Justice SWAYNE delivered the opinion of the court.

title: The Ouachita Cotton


text: Talk:The Ouachita Cotton

title: Talk:The Ouachita Cotton


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The Ouachita Cotton/Opinion of the Court

These three cases relate to the same cotton. The several appellants are conflicting claimants, and it will conduce to brevity and clearness in the expression of our views as to the merits of their respective claims, to dispose of all the cases together.

The cotton was seized on the bank of the Ouachita River, in the State of Louisiana, by the naval forces of the United States, in April, 1864. It was sent to Cairo, and libelled as prize of war in the District Court of the United States for the Southern District of Illinois. The court, by an interlocutory decree, directed the cotton to be sold, and the proceeds to be held subject to its order. The decree was executed, and the proceeds are so held. The appellants intervened in that court by filing their petitions. The claim of Withenbury & Doyle, and that of Grieff & Zunts, each, covers all the cotton. Le More & Co. claim 830 bales.

The court below decreed against all the claimants, and ordered their petitions, respectively, to be dismissed. From these decrees the several parties appealed, and the cases are now before this court for final decision.

The original case is still pending in the District Court. No further step in it has been taken. It is there awaiting adjudication. It is not in this court, and we can do nothing which will affect it, further than to dispose of the cases before us. Neither the captors nor the United States have yet been heard in the main case. All questions between them, relating to it, are still in abeyance. If this court should decree in favor of either of the two larger claims in the cases before us, there would be nothing left for the original parties to contend for. The entire res of the controversy would be lost to both. If we should sustain the smaller claim and exclude the others, the proceeds of 105 bales of the cotton will remain undisposed of. But if the decrees below shall be affirmed, the effect will be only to remove from the original case the grafts which have been placed upon it by the parties before us, and thereby to leave it in all respects as it was before they intervened.

The place where the cotton was seized was, at the time of the seizure, and had been from the commencement of the war, insurgent territory. It was raised near the place of seizure, upon the plantation of Simmons & Tatem, and was sold by Simmons-who had become the sole owner-to the rebel government, in the fall of 1862. Payment was made in Confederate bonds.

Withenbury & Doyle were citizens of the State of Ohio, but were in Louisiana at the breaking out of the rebellion. They owned two steamboats, and were engaged in running them upon the waters of that State. They remained there, and their boats were largely employed in the rebel service. They claim to have been thoroughly loyal to the United States all the time, and that such use of their boats was, on their part, the result of fear and compulsion, and was inevitable.

They bought the cotton in controversy of McKee, the cotton agent of the rebel government, in August, 1863. The consideration of the purchase was the indebtedness of that government for the service of the boats. Withenbury says in his deposition: 'The so-called Confederate government owed me largely for the services of my steamboat, and I received from their agent, A. W. McKee, cotton in preference to Confederate money. This cotton was situated on the Ouachita and Red Rivers, about equally divided. The largest quantity in any one place was nine hundred and thirty-five bales (935), which was stored on the plantation of Dr. John T. Simmons, on the Ouachita River, below Monroe.' The testimony of McKee, the rebel agent, is to the same effect. He says: 'The services of their boats ended in 1863, in the month of April. I then agreed to pay them in cotton if money was not soon forthcoming. . . . I paid them in the Simmonsc rop of cotton, on the Ouachita River. . . There was no contract or bargain made how they were to be paid, or how much they were to be paid. The boats were required to do the work with the understanding that they would be paid the customary prices. . . . On settlement in the spring of 1863, there was a balance due them, for services rendered under my direction, of between eighty and ninety thousand dollars.'

Doyle procured permission from the proper military authorities of the United States, to bring to New Orleans, upon government transports, from Upper Louisiana, 2500 bales of cotton, then lying there, which he claimed belonged to him. The cotton in controversy was a part of it. Before this could be done the cotton in question was seized, removed to Cairo, and libelled as before stated.

Le More & Co. are a commercial house of Havre, in France. They claim 830 bales of the cotton. They purchased through their agent, Jules Le More, on the 1st of March, 1864. The purchase was made of Leon Queyrous, a naturalized citizen, residing in New Orleans. He bought of Buckner, an agent of the rebel government, in the preceding month of February. Possession was delivered by Buckner to Queyrous, and by Queyrous to the agent of Le More & Co.

Grieff & Zunts claim through the Bank of the State of Louisiana. In the fall of 1862, after the capture of New Orleans by the land and naval forces of the United States, the bank having on hand upwards of a million dollars of Confederate money, applied to the military authorities there for permission to send it within the rebel lines, and invest it in cotton. Permission was accordingly given, and an agent was sent to Upper Louisiana with the money. He made large purchases in the country upon the Red River. Finding it impossible to remove the cotton, he exchanged it with the rebel authorities for cotton in the Ouachita District, including, as is alleged, the cotton in controversy. This arrangement was made in 1863. The bank sold to Grieff & Zunts in March, 1864. It is strenuously insisted by the counsel for the other claimants that the proof shows that the contract of exchange did not include the cotton in controversy, that it was conditional, and was subsequently rescinded by the parties, and that the bank took no title under it. However these things may be, they are immaterial in the view which we have taken of the case. We have, therefore, not found it necessary fully to examine the testimony relating to them. For the purposes of this opinion, it is assumed that the facts are, as they are claimed to be by the counsel of Grieff & Zunts.

The fifth section of the act of July 13th, 1861, authorized the President, under the circumstances mentioned, to declare any State, or part of a State, to be 'in a state of insurrection against the United States,' and it enacts that thereupon, 'all commercial intercourse by and between the same, and the citizens thereof, and the citizens of the rest of the United States, shall cease, and be unlawful so long as such condition of hostility shall continue:. . . Provided, however, that the President may, in his discretion, license and permit commercial intercourse with any such part of such State, the inhabitants whereof are so declared in a state of insurrection, in such articles and for such time and by such persons as he, in his discretion, may think most conducive to the public interest, and such intercourse, so far as by him licensed, shall be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury.'

On the 16th of August, 1861, the President issued a proclamation declaring the rebel States, including Louisiana, to be in a state of insurrection. It excepted several localities from its operation. Among them were such parts of the States mentioned 'as may be from time to time occupied and controlled by forces of the United States engaged in the dispersion of the insurgents.' By another proclamation of the 2d of April, 1863, the President declared the same Stae s to be in insurrection, and revoked all the exceptions contained in the former proclamation, but again made certain local exceptions, of which 'the port of New Orleans' was one. This proclamation declares 'that all commercial intercourse, not licensed and conducted as is provided in said act, between the said States and the inhabitants thereof, with the exceptions aforesaid, is unlawful, and will remain unlawful until such insurrection shall cease or has been suppressed, and notice thereof has been given by proclamation.' The date of this proclamation was prior to either of the purchases of the cotton from the rebel agents, to which the claimants, respectively, trace their titles.

The subjugation of New Orleans and the restoration of the national authority there are regarded as having become complete on the 6th of May, 1862. From that time its citizens were clothed with the same rights of property, and were subject to the same inhibitions and disabilities as to commercial intercourse with the territory declared to be in insurrection, as the inhabitants of the loyal States. Such is the result of the application of well-settled principles of public law. The proclamation of the 2d of April, 1863, recognized but did not change the existing condition of things. It was the same afterwards as before. The effect of the proclamation was cumulative.

The language of the act of 1861, and of the proclamation of 1863, is clear and explicit. There is no room for doubt as to their meaning, nor as to their effect in these cases. Commercial intercourse between the inhabitants of territory in insurrection and those of territory not in insurrection, except under the license of the President, and according to regulations prescribed by the Secretary of the Treasury, was entirely prohibited. As was well remarked in the able opinion of the court below, 'Prohibition was the rule, and license the exception.' No such license was given by the President to either of the parties by whom the purchases of the cotton were made from the agents of the rebel government. Those given by the military authorities were nullities. They conferred no rights whatever. No one could give them but the President. From any other source they were void. The law-making power, in its wisdom and caution, confided this important authority, so liable to be abused, to the Chief Magistrate alone.

Withenbury & Doyle being citizens and residents of Ohio; Queyrous being a citizen of Louisiana, and a resident of New Orleans, and the Bank of the State of Louisiana being a local institution of that city when they purchased, their purchases were all illegal and void, and passed no title to the vendees. Withenbury & Doyle, therefore, never had any title. Queyrous took none, and, therefore, could convey none to Le More & Co. The bank acquired none, and nothing passed by the sale to Grieff & Zunts.

All the parties in this litigation stand before us without any right or interest in the cotton which this court can recognize.

Other questions of fact and of law have been argued with great ability; but as we have found the statute and the proclamation conclusive in every aspect of the cases which can be presented, we have deemed it unnecessary further to examine the subject.

We have found no error in the record.

This conclusion is not in conflict with the ruling in the case of Mrs. Alexander's Cotton. Upon that subject it is sufficient to remark that there, the whole case was not, as here, before us.

The several decrees of the District Court are

AFFIRMED.


text: Talk:The Ouachita Cotton/Opinion of the Court


text:
Hanger v. Abbott

73 U.S. 532

18 L.Ed. 939

6 Wall. 532

HANGER

v.

ABBOTT.

December Ternm, 1867

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

J. & E. Abbott, of New Hampshire, sued Hanger, of Arkansas, in assumpsit. The latter pleaded the statute of limitations of Arkansas, which limits such action to three years The former replied the rebellion, which broke out after the cause of action accrued, and closed for more than three years all lawful courts. On demurrer, and judgment against it, and error to this court, the question here was, simply, whether the time during which the courts in Arkansas were closed on account of the rebellion, was to be excluded from the computation of time fixed by the Arkansas statute of limitations within which suits on contracts were to be brought, there being no exception by the terms of the statute itself for any such case.

Mr. Reverdy Johnson, for the plaintiff in error, cited Alabama v. Dalton in this court; ''Mr. S.C.. Eastman, contra'', placed the case on general principles of law, and on an act of Congress of June 11th, 1864, ch. cxviii.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Hanger v. Abbott


text: Talk:Hanger v. Abbott

title: Talk:Hanger v. Abbott


text:
Hanger v. Abbott/Opinion of the Court

The declaration was in assumpsit, and the plaintiffs alleged that the defendant, on the tenth day of April, 1865, was indebted to them for divers goods, wares, and merchandise and also for money had and received in the sum of ten thousand dollars. Defendant appeared and pleaded two pleas in answer to the declaration:

(1) That he never promised as the plaintiffs have alleged.

(2) That the cause of action did not accrue at any time within three years next before the commencement of the suit.

Issue was joined by the plaintiffs on the first plea, and in answer to the second they filed seven replications, but particular reference need only be made to the fifth and sixth of the series.

Substance of the fifth replication was that the defendant, from the sixth day of May, 1861, to the first day of January, 1865, was an actual resident of Arkansas, and that the plaintiffs were at the same time actual residents of New Hampshire, and that during the whole of that period they were prevented, by reason of resistance to the execution of the federal laws and the interruption of the ordinary course of judicial proceedings in the former state from instituting their action and from having the defendant served with proper process, and so they aver that they did commence their suit within three years next before the cause of action accrued.

Sixth replication alleges that the parties respectively had been for more than three years before the commencement of the suit actual residents of their respective states and that the cause of action accrued before the twenty-fifth day of October, 1859, and that after the same had so accrued, to-wit, on the sixth day of May, 1861, all the lawful courts of the state where the defendant resided were closed by reason of the insurrection and rebellion which then and there arose against the lawful authority of the United States; that the courts so remained closed from that day to the first day of January, 1865, and so the plaintiffs say that the period during which the courts were not open for the reasons stated should not be deemed and taken as any part of the three years' limitation, as pleaded, and they in fact say that they did commence their suit within three years next before the cause of action accrued.

Demurrers were filed by the defendant to the replications, and the court gave judgment for the plaintiffs in the sum of nine thousand four hundred eighty-three dollars and twenty-six cents damages and costs suit, whereupon the defendant sued out this writ of error. Proclamation of blockade was made by the President on the nineteenth day of April, 1861, and on the thirteenth day of July in the same year, Congress passed a law authorizing the President to interdict all trade and intercourse between the inhabitants of the states in insurrection and the rest of the United States.

War, when duly declared or recognized as such by the war-making power, imports a prohibition to the subjects, or citizens, of all commercial intercourse and correspondence with citizens or persons domiciled in the enemy country. Upon this principle of public law, it is the established rule in all commercial nations that trading with the enemy, except under a government license, subjects the property to confiscation or to capture and condemnation.

Partnership with a foreigner is dissolved by the same event which makes him an alien enemy, because there is in that case an utter incompatibility created by operation of law between the partners as to their respective rights, duties, and obligations, both public and private, which necessarily dissolves the relation, independent of the will or acts of the parties. Direct consequence of the rule as established in those cases is that as soon as war is commenced, all trading, negotiation, communication, and intercourse between the citizens of one of the belligerents with those of the other, without the permission of the government, is unlawful. No valid contract therefore can be made, nor can any promise arise by implication of law from any transaction with an enemy. Exceptions to the rule are not admitted, and even after the war has terminated, the defendant, in an action founded upon a contract made in violation of that prohibition, may set up the illegality of the transaction as defense. Various attempts, says Mr. Wheaton, have been made to evade the operation of the rule and to escape its penalties, but they have all been defeated by its inflexible rigor. All foreign writers on international law concur in the opinion that the immediate and necessary consequence of a declaration of war is to interdict all intercourse or dealings between the subjects of the belligerent states. Hostilities once commenced, any attempt at trading on the part of the subjects of either state, unless by permission of the sovereign, is prohibited and becomes ipso facto a breach of the allegiance due to their respective sovereigns, as such is forbidden by the public law of the civilized world.

Executory contracts also with an alien enemy, or even with a neutral, if they cannot be performed except in the way of commercial intercourse with the enemy, are dissolved by the declaration of war, which operates for that purpose with a force equivalent to an act of Congress.

In former times, the right to confiscate debts was admitted as an acknowledged doctrine of the law of nations, and in strictness it may still be said to exist, but it may well be considered as a naked and impolitic right, condemned by the enlightened conscience and judgment of modern times. Better opinion is that executed contracts such as the debt in this case, although existing prior to the war, are not annulled or extinguished, but the remedy is only suspended, which is a necessary conclusion on account of the inability of an alien enemy to sue or to sustain, in the language of the civilians, a persona standi in judicio. Trading, which supposed the making of contracts and which also involves the necessity of intercourse and correspondence, is necessarily contradictory to a state of war, but there is no exigency in war which requires that belligerents should confiscate or annul the debts due by the citizens of the other contending party.

We suspend the right of the enemy, says Mr. Chitty, to the debts which our traders owe to him, but we do not annul the right. We preclude him during war from suing to recover his due, for we are not to send treasure abroad for the direct supply of our enemies in their attempt to destroy us, but with the return of peace, we return the right and the remedy. During war, says Sir William Scott, there is a total inability to sustain any contract by an appeal to the tribunals of the one country on the part of the subjects of the other. Views of Mr. Wheaton are, and they are undoubtedly correct, that debts previously contracted between the respective subjects, though the remedy for their recovery is suspended during war, are revived on the restoration of peace unless actually confiscated in the meantime in the rigorous exercise of the strict rights of war, contrary to the milder rules of recent times. He says, in effect, that the power of confiscating such debts theoretically exists, though it is seldom or never practically exerted; that the right of the creditor to sue for the recovery of the debt is not extinguished, that it is only suspended during the war, and revives in full force on the restoration of peace.

Under the thirty-fourth section of the Judiciary Act, the statutes of limitations of the several states, where no special provision has been made by Congress, form the rule of decision in the courts of the United States, and the same effect is given to them as is give to the courts of the state.

Grant that the law of nations is that debts due from individuals to the enemy may, by the rigorous application of the rights of war, be confiscated, still it is a right which is seldom or never exercised in modern warfare, and the rule is universally acknowledge that if the debts are not so confiscated, the right to enforce payment revives when the ware has terminated. Vattel says the sovereign may confiscate debts due from his subjects to the enemy if the term of payment happens in time of war, or at least he may prohibit his subjects from paying while the war continues, but at present a regard to the advances and safety of commerce induces a less rigorous rule.

Where a debt has not been confiscated, the rule is undoubted that the right to sue revives on the restoration of peace, and Mr. Chitty says that with the return of peace, we return to the creditor the right and the remedy. Unless we return the remedy with the right, the pretense of restoring the latter is a mockery, as the power to exercise it with effect is gone by lapse of time during which both the rights and the remedy were suspended.

When our ancestors immigrated here, they brought with them the statute of 21 Jac. I, c. 16, entitled "An act for limitation of actions, and for avoiding of suits in law," known as the statute of limitations. Proceedings in courts of justice are usually determined by the lex fori of the place where the suit in pending, including the statutes of limitations, which are those of the country where the suit is brought, and not those of the lex loci contractus.

Such statutes exist in all the states, and with few exceptions they have been copied from the one brought here in colonial times. They are statutes of repose to quiet title, to suppress fraud, and to supply the deficiency of proofs arising from the ambiguity and obscurity or antiquity of transactions. They proceed also upon the presumption that claims are extinguished whenever they are not litigated in the proper forum within the prescribed period, and they take away all solid ground of complaint, because they rest on the negligence or laches of the party himself.

Persons within the age of twenty-one years, femes covert, non compos mentis, persons imprisoned or beyond the seas, were excepted out of the operation of the third section of the act, and were allowed the same period of time after such disability was removed. Just exceptions indeed are to be found in all such statutes, but when examined, it will appear that they were framed to prevent injustice, and never to encourage laches or to promote negligence. Cases where the courts of justice are closed in consequence of insurrection or rebellion are not within the express terms of any such exception, but the statute of limitations was passed in 1623, more than a century before it came to be understood that debts due to alien enemies were not subject to confiscation. Down to 1737, says Chancellor Kent, the opinion of jurists was in favor of the right to confiscate, and many maintained that such debts were annulled by the declaration of war. Regarding such debts as annulled by war, the lawmakers of that day never thought of making provision for the collection of the same on the restoration of peace between the belligerents. Commerce and civilization have wrought great changes in the spirit of nations touching the conduct of war, and in respect to the principles of international law applicable to the subject.

Constant usage and practice of belligerent nations from the earliest times subjected enemy's goods in neutral vessels to capture and condemnation as prize of war, but the maxim is now universally acknowledged that "free ships make free goods" which is another victory of commerce over the feelings of avarice and revenge. Individual debts, as a general remark, are no longer the subject of confiscation, and the rule is universally admitted that if not confiscated during the war, the return of peace brings with it both "the right and the remedy."

Total inability on the part of an enemy creditor to sustain any contract in the tribunals of the other belligerent exists during war, but the restoration of peace removes the disability, and opens the doors of the courts. Absolute suspension of the right, and prohibition to exercise it, exist during war by the law of nations, and if so, then it is clear that peace cannot bring with it the remedy if the war is of much duration, unless it also be held that the operation of the statute of limitation is also suspended during the period the creditor is prohibited, by the existence of the war and the law of nations, from enforcing his claim. Neither laches nor fraud can be imputed in such a case, and none of the reasons on which the statute is founded can possibly apply, as the disability to sue becomes absolute by the declaration of war, and is a conclusion of law. Ability to sue was the status of the creditor when the contract was made, but the effect of war is to suspend the right not only without any fault on his part, but under the circumstances which make it his duty to abstain from any such attempt. His remedy is suspended by the acts of the two governments and by the law of nations not applicable at the date of the contract, but which comes into operation in consequence of an event over which he has no control.

Old decisions, made when the rule of law was that war annulled all debts between the subjects of the belligerents, are entitled to but little weight, even if it is safe to assume that they are correctly reported, of which, in respect to the leading case of Prideaux v. Webber, there is much doubt. Miller v. Prideaux, Lee v. Rogers, Hall v. Wybourne, Aubrey v. Fortescue, are of the same class, and to the same effect. All of those decisions were made between parties who were citizens of the same jurisdiction, and most of them were made nearly a hundred years before the international rule was acknowledged that war only suspended debts to an enemy and that peace had the effect to restore the remedy. The rule of the present day is that debts existing prior to the war, but which made not part of the reasons for undertaking it, remain entire, and the remedies are revived with the restoration of peace.

The suspension of the remedy during war is so absolute that courts of justice will not even grant a commission to take testimony in an enemy's country. But when the reason for the suspension ceases, the right to prosecute revives, and the fact that the right had been suspended constitutes no disability.

When the courts of justice are open, and judges and ministers of the same may by law protect men from wrong and violence and distribute justice to all, says Lord Coke, it is said to be time of peace, but when by invasion, insurrection, rebellion or such like, the peaceable course of justice is disturbed and stopped, so as the courts of justice be, as it were, shut up, et silent leges inter arma, then it is said to be time of war, and having described the conditions both of war and peace, he adds emphatically that if a man is disseized in time of peace and the descent is cast in time of war, this shall not take away the entry of the disseizee, which is a direct authority for the plaintiffs in this case.

Text writers usually say, on the authority of the old cases referred to, that the nonexistence of courts or their being shut is no answer to the bar of the statute of limitations, but Plowden says that things happening by an invincible necessity, though they be against common law or an act of Parliament, shall not be prejudicial. That therefore to say that the courts were shut is a good excuse on voucher of record. Exceptions not mentioned in the statutes have sometimes been admitted, and this Court held that the time which elapsed while certain prior proceedings were suspended by appeal should be deducted, as it appeared that the injured party in the meantime had no right to demand his money or to sue for the recovery of the same, and in view of those circumstances, the court decided that his right of action had not accrued so as to bar it, although not commenced within six years. But the exception set up in this case stands upon much more solid reasons, as the right to sue was suspended by the acts of the government, for which all the citizens are responsible. Unless the rule be so, then the citizens of a state may pay their debts by entering into an insurrection or rebellion against the government of the Union, if they are able to close the courts, and to successfully resist the laws until the bar of the statute becomes complete, which cannot for a moment be admitted. Peace restores the right and the remedy, and as that cannot be if the limitation continues to run during the period the creditor is rendered incapable to sue, it necessarily follows that the operation of the statute is also suspended during the same period.

Reference is made to the remarks of the judge who gave the opinion in the case of Alabama v. Dalton, but the case then before the Court involved no such question as is presented in this case, and those remarks are more than counterbalanced by those made by the Chief Justice in McIver v. Ragan, where he admits that the case would be within the exceptions to the statute if it appeared that the courts of the country were closed so that no suits could be instituted. Viewed in any light, we think the decision of the circuit court overruling the demurrer to the fifth and sixth replications of the plaintiffs was correct.

Plaintiffs also rely upon the Act of Congress of the eleventh of June, 1864, as being sufficient to take the case out of the operation of the statute, but it is not necessary to decide that point in this case, and we express no opinion upon the subject.

Judgment affirmed with costs.

title: Hanger v. Abbott/Opinion of the Court


text: Talk:Hanger v. Abbott/Opinion of the Court


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Clark v. United States (73 U.S. 543)

APPEAL from the Court of Claims.

The case was thus: Clark entered into a contract with the United States to furnish all the material and make 221,000 cubic yards of embankment at the Navy Yard at Memphis, Tennessee; the embankment to be made in such manner and places as should be directed by the engineer, and finished on or before the 15th of July, 1847. The United States engaged, that for the materials and embankment made, &c., according to the contract, there should be paid, on account of all bills presented for the aforesaid materials and work delivered and executed, 'eighteen cents for every cubic yard.' Ten per cent. was to be withheld from the amount of all payments as collateral security, and a bond given to secure performance.

Clark having brought suit in the Court of Claims to recover a balance which he asserted to be due on this contract, that court found—

'1. That he built 128,913.55 yards of the embankment, for which he had been paid.

'2. That the system of measurements pursued by the officers of the United States, and by which the said quantity of yards was computed, consisted in measuring from a fixed base monthly, and that the claimant at the time objected to the system, contending that he should be paid for the quantity of earth actually deposited by him on the embankment.

'3. That there was a waste and shrinkage of the embankment while building, and a natural settling of the batture on which the embankment was built, and that the loss occasioned thereby necessarily was borne by the claimant under the system of measurements adopted.

'4. That this system was the one customarily used on the public works of the government, and that there was no competent evidence offered to show a contrary custom.

'5. That the officers of the government interfered with the claimant in the execution of his work, compelling him to dump loose earth where it was exposed to the direct currents of the river, and that they also used the embankment as a roadway, to the loss and injury of the claimant, but that all of such acts of which there was sufficient evidence, occurred subsequent to the 15th day of July, 1847, and when the claimant was in default in not having performed his said agreement and completed the said embankment.'

And the court decided:

'That the contract was entire and not severable, and that by the terms thereof the claimant could only recover for the embankment completed and not for the quantity of earth deposited by him therein, and that as a necessary and legal consequence thereof all loss by settling, shrinkage, and the action of the currents of the river, was to be borne by the claimant and not by the United States.

'That the claimant was not entitled to recover for the interference of the defendants or their officers subsequent to the 15th July, 1847, the time when the work under his said contract was to have been completed by the terms of his agreement.'

From this deciso n Clark appealed.

Messrs. Norton and Weed, Solicitor and Assistant Solicitor for the Court of Claims, in support of the decision, contended, by brief filed, that the claimant having contracted to furnish materials, as well as to do the work, all loss, though arising from inevitable accident, was to be borne by him: that it was a case for the maxim, res perit domino. They contended also that the contract was entire, and that the appellant having been bound to complete his work by July 15th, and the United States having had a right to use the place from that day, he could recover nothing unless he showed that the day, he could recover nothing unless he showed that the failure to complete was caused by the United States.

Mr. Hughes, who filed a brief for Mr. McCalla, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Clark v. United States (73 U.S. 543)


text: Talk:Clark v. United States (73 U.S. 543)


text:
Clark v. United States (73 U.S. 543)/Opinion of the Court

1. Among the facts found by the court it is stated that 'the officers of government interfered with claimant in the execution of his work, compelling him to where it was exposed to the direct current of the river, and that they also used the embankment as a roadway to the loss and injury of the claimant; but that all of such acts of which there was sufficient evidence, occurred subsequent to the 15th day of July, 1847, and when claimant was in default in not having performed his said agreement, and completed said embankment.' And they declare the law applicable to this state of facts to be, 'that the claimant was not entitled to recover for the interference of defendants or their officers subsequent to the 15th July, 1847, the time when the work under his contract was to have been completed by the terms of his agreement.'

We are of opinion that this ruling was erroneous. The court seems to have placed this right of the agents of the government to use the embankment as a roadway, and to compel him to dump loose earth into the current, by which it was carried away, both of which are found to be to his loss and injury, upon the simple fact that those injuries were inflicted after the day at which his contract should have been completed. What relation there is between his failure to do all the work by a certain day, and the claim of the government to subject him to these losses, is not pointed out by the court, nor is it perceived by us. The contract declared no penalty for not completing the work by the 15th July. It does not even authorize the government to forfeit the contract or to terminate it. The utmost that can be claimed for this failure is such damages as it may have sustained because the work was not finished in time. For this the plaintiff had given a bond with sureties. But if the government permitted him to go on in the effort to complete the contract, it surely had acquired no right to compel him to do it in a manner which necessarily involved him in great loss, and to use the embankment as a roadway, to his further injury.

2. The court finds that there was waste and shrinkage of the embankment while building, and a natural settling of the batture on which the embankment was built, and that the loss occasioned thereby necessarily was borne by the claimant under the system of measurement adopted. And they find, as matter of law, that the contract being entire and not severable, claimant could only recover for embankment completed, and that, as a necessary consequence, all losses by settling and shrinkage, and the action of the current, were to be borne by the claimant.

We take it for granted that the word 'settling' in this finding of the law is used for the settling of the batture. If this be so, we think the court erred in this matter also. It must be evident, if the foundation on which the embankment was built had settled lower while the building was going on, that the embankment which supplied the place of this settling was there, and had become the property of the government. If the system of measurement did not enable the engineer to compute this accurately they so uld have done it approximately, or adopted some other system. It is clear that for the embankment built by him and remaining, he should be paid; and if the quantity necessary to be built had increased by this settling, it was the loss of the government, which had agreed to pay by the cubic yard, and not by a certain sum for the job in the aggregate.

3. A more difficult question is presented in reference to the question of loss by the action of the current, and the natural waste and shrinkage of the embankment while it was in process of completion.

It is certainly true that if this embankment had been built on dry land the contract is of that nature that these losses would fall on claimant, and the custom of measurement found by the court probably was founded on such work. But we do not feel so clear that in a contract like this, in which no place is mentioned for its precise location, and in regard to which the contract obliges the party to do the work 'in such manner and at such places as shall be directed by the said engineer or other authorized agent,' the government is only bound to pay for what earth remains visible, and capable of being triangulated after the work is finished. If, for instance, the engineer had ordered plaintiff to commence in the middle of the river, and had caused him to dump the whole 221,000 yards in the midst of the current, where it could neither be seen nor measured, we are of opinion that the quantity of dirt placed there should be ascertained by some other mode, and paid for. As the contract is silent as to the place where the work was to be done, as there are no facts found concerning the previous negotiations as to location or character of work required, we have not sufficient means of determining whether the application of the law to this point by the court was correct or not. We must, therefore, dismiss this, the most important branch of the case, with the foregoing remarks, and as the judgment of the Court of Claims must be reversed for the errors already mentioned, the court may on a new trial find differently, or may find such acts as will enable us to determine the law of the case if it shall become necessary.

JUDGMENT REVERSED, and the case remanded for further proceedings in conformity with this opinion.


text: Talk:Clark v. United States (73 U.S. 543)/Opinion of the Court


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Tome v. Dubois

ERROR to the Circuit Court for the District of Maryland; the case, as stated in the brief of counsel, and assumed by this court, being in substance thus:

Dubois & Lowe brought trover against Tome, Shure & Abbott to recover damages for the conversion by them of certain saw-logs, and certain planks, which Dubois & Lowe alleged to be their property.

At the trial of the cause, evidence was offered on the part of the plaintiffs, that on September 30th, 1861, several booms on the Susquehanna River were carried away by a freshet, and that a large quantity of logs for lumber were swept down the river; that telegrams were at once sent to the postmasters at Port Deposit and Havre de Grace, towns on the lower part of the river, requesting them to have the logs caught and saved for the owners, and that under such notices, the defendants caught and saved a quantity of the logs, and at once began to saw them into lumber. Evidence was also offered, that a few days after the freshet, the owners of the logs appointed a committee of three persons to go down the river, and settle with the persons who had saved any portion of the logs, and with full authority to sell the same; that on the 7th or 8th October, 1861, the committee went to the sawmill of the defendants, about seven miles from Havre de Grace, and saw some of the logs there; that the committee offered to sell to the defendants all the logs between Safe Harbor Dam and Havre de Grace, which included the logs then in the possession of defendants, but the parties could not agree at to the terms of sale; that the defendants were then engaged in sawing the logs, and had prior to that time sawed som of them, and that the committee prohibited all further sawing thereof; that they estimated the lumber which had been sawed at from 40,000 to 200,000 feet; that they made several visits to the mill of the defendants, and on their last visit, which was in December, 1861, and was for the purpose of ascertaining and measuring the whole amount, there were, in their judgment and by their measurement, 400,000 feet of sawed lumber, and 100,000 feet in logs. Evidence was also offered, that on the 26th October, 1861, the plaintiffs bought all of the logs from Safe Harbor to Havre de Grace from the committee, and settled with them therefor; that on the next day the plaintiffs gave notice to Tome (one of the defendants) of the purchase, and he having refused to pay them for the logs which had been sawed, they demanded possession of all the lumber sawed and unsawed in the defendants' possession, and prohibited the sawing of any more, but he denied their ownership, alleging that the logs and lumber had not been scaled and delivered to them; and that after the logs had been scaled, and the quantity of lumber estimated by the committee in December, 1861, the plaintiffs made another application to the same defendant without success, he referring them to Shure (a co-defendant in this case), of whom they had made repeated demands, and received repeated refusals. The plaintiffs also gave evidence, that the logs when sawed, were worth from $13 to $16 per thousand feet.

On the part of the defendants, evidence was offered that after the receipt of the notices by telegraph, they commenced to save the logs as they were brought down by the freshet, and that with the expectation of becoming the purchasers of the logs, they sawed and converted the same into lumber as fast as they were saved, and directed the foreman at their saw-mill to keep an account of the same; that they had converted about twenty-two logs into lumber, when the committee came to the mill, and objected to the manner of keeping the account, and gave directions as to the keeping of the same in a different manner; that of the logs when so sawed into lumber they had sold three canal-boat loads on the 18th and 25th of October, 1861, and received the money therefor, at the value of $11 per thousand feet; that about 780 logs were the whole amount so recovered and sawed by them, and that from the moment they heard of the sale of the logs by the committee to the plaintiffs, they ceased either to catch or saw the logs; that five of the logs sawed would make a thousand feet of lumber; and that it was worth $3 per thousand to saw it, and $5 per thousand to save the logs. The defendants also proved, that when called on by the committee after they had made their final estimate and measurement of the lumber, for an account of the logs so caught and manufactured into lumber, they expressed a willingness to furnish such account, and to pay therefor to the committee, for themselves or for the owners, but would not furnish an account for nor settle with the plaintiffs, whom they refused to know in the matter.

The defendants requested the court to instruct the jury as follows:

1. If the jury shall find that the logs in question were the property of the several parties shown by the evidence to have constituted the committee to dispose of the same, and that the defendants took the logs into their possession, and sawed the same into boards without the consent of the owners, then the taking and sawing were a tortious conversion of the logs, for which the defendants became responsible to the original owners in trover and the plaintiffs are not entitled to recover in this action, notwithstanding the jury shall also find that after the conversion, the plaintiffs purchased all the former owners' interest in the logs.

2. That if the jury shall find for the plaintiffs, the measure of damages is the value of the logs at the time and place of the conversion.

3. If the jury shall find that the logs in question were saved by the defendants from the freshet for the e nefit of the owners when they should appear, and then shall further find that being perishable, they were sawed by the defendants also for the benefit of whom it might concern, then the measure of damages will be the value of the logs at the time and place they were so saved, or the value of the lumber, deducting therefrom the cost of saving and sawing.

4. If the jury find from the evidence that the logs were saved in conformity with the instructions of those who were the owners thereof at the time of the freshet, and that they or so many thereof as were saved were hereafter sawed into plank, with the sanction of the committee representing the owners, then the jury, in estimating the value of the logs and lumber at the time of the demand and refusal, are to allow a reasonable sum as compensation for saving such logs, and sawing the same into plank.

But the court rejected the prayers presented by the defendants, and instructed the jury:

If the jury find from the evidence in this case that the sawlogs and planks found by the witnesses at defendants' mill were saw-logs that had come down the river during the freshet, belonging to the owners represented by the committee, or plank sawed from the logs, and that the logs and plank were sold by the committee to the plaintiffs in this case, and that subsequently to the purchase the plaintiffs demanded the same from the defendants, and that the defendants refused to give up the same to the plaintiffs, then the plaintiffs are entitled to a verdict for such sum as the jury may find the logs and plank to have been worth at the time of such demand and refusal at the mill of the defendants, with interest from the time of such demand, after deducting whatever cost the jury may find the defendants incurred for the saving of the logs, and also the cost of sawing; if the jury shall further find that the saving and sawing were done at the request or by the sanction of the owners or the committee.

Exceptions were duly taken by the defendants to the refusal of the court to instruct the jury as requested and also to the instructions given by the court; and the refusal and the instructions given were now the matters in question here.

Mr. G. H. Williams, for the plaintiff in error, contended, 1st, that if the sawing of the logs (which was a necessary part of their saving) was a tortious conversion, then the right of action therefor was not assignable, and also that the instruction tended to confuse the jury by leaving to them to find or not a fact which was not disputed, viz., that at least the logs were saved under instructions. That the defendants were not, at all events, trespassers ab initio; and that if the plaintiffs could not sue for so many of the logs as were converted previous to their purchase, there was no separation of the residue, or delivery by the former owners, for which trover would lie.

Mr. J. N. Steele, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Tome v. Dubois


text: Talk:Tome v. Dubois

title: Talk:Tome v. Dubois


text:
Tome v. Dubois/Opinion of the Court

Careful attention to the facts of the case, as given in the statement prepared as a part of the opinion of the court, will very much facilitate the investigation, as it discloses very fully the substance of the entire transaction, the order of the events and the pretensions of the respective parties

Original ownership of the logs is not a question in the case, and the present parties conceded that the booms containing the logs were broken by the freshet, and that the logs, in spite of any efforts of the owners, were carried away by the current, and floated down the river. Telegrams were sent by the owners making known their loss, and requesting the persons to whom they were directed to take measures in their discretion to save the logs, and it is without dispute tha the defendants promptly engaged in the business, and saved the logs in controversy. Owning sawmills, they immediately commenced to saw the logs, as they secured them, into planks. Other persons also lost logs by the same freshet, and the several owners appointed a committee of three persons to go down the river and, if possible, protect their interests, and to sell the logs if in their discretion it was thought best. Pursuant to that authority they went to the mills of the defendants, and offered to sell them the logs, sawed and unsawed, but the parties not being able to agree, the committee notified the defendants that they must stop sawing the logs into lumber. Unable to come to any satisfactory arrangement, the committee left and sold the whole lumber, logs and planks, to the plaintiffs, who paid the consideration. Having become the owners, the plaintiffs went to the mills of the defendants, and failing to sell the lumber to them, or to come to any agreement with them, they demanded the lumber, logs and planks, and the defendants refusing to deliver the same, they instituted this suit in the Circuit Court.

Purchase by the plaintiffs was made on the twenty-sixth day of October, 1861, as appears by the evidence. Refusal of the defendants to deliver the lumber as demanded, was placed upon the ground that they, the defendants, were responsible to the former owners, and they denied that the ownership was in the plaintiffs, as the logs and planks had not been scaled and delivered to them since the purchase.

Theory of the first prayer for instruction is, that the defendants are not liable in this action, because they took the logs into their possession, and sawed the same into planks while the logs were the property of the original owners. Stated in other words, the proposition is, that the logs, at the time of the conversion, were the property of the vendors of the plaintiffs, and the defendants contend that, having tortiously converted the lumber to their own use, before the sale, they are not liable to the plaintiffs as the purchasers. Delivery was not essential, as it is well settled that when the terms of the sale are agreed on, and the bargain is struck, and everything the seller has to do with the property is complete, the contract of sale becomes absolute between the parties without delivery, and the property and risk vest in the purchaser.

Owners of personal property are not obliged to treat every act of a third person who invades their right of property or possession as constituting a tortious conversion of the property, but they may, if they see fit, waive the tort, and in that state of the case, they may sell the property and convey a good title, and their vendee may, upon demand and refusal, maintain trover.

Such a defence of a wrongdoer is not entitled to any special favor, and we concur in the remarks of Judge Story, that there is no principle of law which establishes that a sale of personal property is void because the property was not in the possession of the rightful owner at the time the sale was made. Under such circumstances, the sale is not a sale of a right of action, but a sale of the thing itself, and good to pass the title against every person not holding the same in good faith for a valuable consideration without notice, and a fortiori against a wrongdoer.

Conversion relied on by the plaintiffs is not because the defendants intermeddled with the logs without authority, or that they refused to deliver the lumber when it was demanded by the committee. They could not rely on those acts wih any hope of success, as the plaintiffs, at those dates, had no title to the lumber, which at that time was vested in their vendors. But they subsequently became the purchasers, and the proofs show that they twice demanded the lumber after the defendants knew that the plaintiffs had become the purchasers.

Third prayer for instructions corresponds with the proofs, which show that the defendants persistently denied the title of the plaintiffs, and claimed the right to hold the lumber, sawed and unsawed, for the benefit of the original owners, which is a theory without merit, and which requires no further explanation. Claiming no title to the property, they refused to deliver it, because, as they insist, they had taken away from the original owner the power to sell, by tortiously converting it to their own use. Even at the trial they admitted that the property did not belong to them, but insisted that the purchasers acquired no title for the reasons already suggested. Claim is also made in argument that the defendants had sold a part of the lumber, but it is too late to raise any such question in this court, as none such was raised at the trial, or reserved in the bill of exceptions.

Proper exceptions were also taken to the refusal of the court to give the second and fourth prayers presented by the defendants, but the exceptions cannot be sustained, as the substance of both is embraced in the instructions given by the court. Purport of those prayers were that the defendants were entitled to a reasonable sum for the cost of saving and sawing the logs. Instructions of the court to the jury were, that they should deduct from the value of the lumber the cost of saving the lumber, and also the cost of sawing, which is all the defendants could demand in any view of the facts. Valid objection cannot be taken to the qualification annexed to that instruction, as the testimony was without conflict that the defendants had saved the logs and manufactured a part of them into plank, and there is no proof that the owners or the committee made and complaint that the work had been done without authority. Amount of the verdict affords satisfactory evidence that the finding was correct. The residue of the instruction is unexceptionable and there is no error in the record.

JUDGMENT AFFIRMED WITH COSTS.

title: Tome v. Dubois/Opinion of the Court


text: Talk:Tome v. Dubois/Opinion of the Court


text:
Insurance Company v. Hallock

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

In Indiana the distinction between proceedings in common law and chancery is abolished, and under their code one form of action only, the 'civil action,' is known. This code provides as follows:

'Sect. 407. When a judgment requires the payment of money, or the delivery of real or personal property, the same may be enforced by execution.'

'Sect. 409. The execution must issue in the name of the State, and be directed to the sheriff of the county, sealed with the seal, and attested by the clerk of the court.'

The proceedings to foreclose a mortgage are the same as in other actions, except that when there is no express agreement in the mortgage, nor any separate instrument, for the payment of the sum secured thereby, the remedy of the mortgagee shall be confined to the property mortgaged, and in that case the judgment of foreclosure shall order the mortgaged premises to be sold, or so much thereof as will satisfy the judgment. If there is a promise in the mortgage, or in a separate instrument, to pay the sum secured, the court shall direct in the order of sale that any balance which may remain unsatisfied after the sale of the mortgaged premises, shall be levied of any other property of the mortgage debtor.

Section 635 is thus:

'A copy of the order of sale, and judgment, shall be issued and certified by the clerk, under the seal of the court, to the sheriff, who shall thereupon proceed to sell the mortgaged premises, r so much thereof as may be necessary to satisfy the judgment, interest, and costs, as upon execution; and if any part of the judgment, interest, and costs, remain unsatisfied, the sheriff shall forthwith proceed to levy the residue of the other property of the defendant.'

With these provisions of the code in force, the AEtna Insurance Company, brought suit against Hallock and others, to try the title to land. The defendants had possession, claiming under a judicial sale in proceedings to foreclose a mortgage. It was admitted that the plaintiffs below had the legal title to the land in controversy, unless it had been divested by those proceedings.

On the trial the defendant having introduced a transcript of the record of the proceedings under which they claimed title from the Court of Common Pleas of Vanderburgh County, 'the plaintiffs then offered in evidence the original order of sale issued to the sheriff on the decree of foreclosure, and upon which order of sale the sheriff sold to the defendant in the case the premises in controversy, which order of sale appeared, on inspection thereof, not to have been issued under the seal of said Court of Common Pleas of Vanderburgh County, and not to have had the seal of said court impressed thereon, or in any manner annexed thereto. . . . And the court, because the said order of sale was not issued under the seal of the said Court of Common Pleas of Vanderburgh County, did find for plaintiffs, to which finding of the court the defendants at the time excepted.' Judgment having been given accordingly, the question now before this court was the correctness of the decision so made.

Mr. R. M. Corwine, for the plaintiff in error:

Did the omission to use the seal of the court make the order void, or was it avoidable merely? The general rule in judicial sales is, that the purchaser is not bound to look beyond the 'judgment, levy, and sale.' All other steps (such as the issuing of an execution after a year and a day without a revivor) are merely directory to the officer. As between the parties to the process, or their privies, the return is usually conclusive, and not liable to be collaterally impeached. In Sowle v. Champion, in the Supreme Court of Indiana, it was held that an order of sale, issued on a decree of foreclosure, which did not set out a copy of the decree, was informal, under the statute, but was not void, and if not set aside on the defendants' motion, that all acts done under it were valid. Yet the direction of the code, 'that a copy of the order of sale and judgment shall be issued,' is as stringent and mandatory as that other direction, that it 'shall be issued and certified by the clerk under the seal of the court,' &c. If the one is merely directory, the other is so also.

Messrs. Hughes, Denvers, and Peck, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Insurance Company v. Hallock


text: Talk:Insurance Company v. Hallock

title: Talk:Insurance Company v. Hallock


text:
Insurance Company v. Hallock/Opinion of the Court

If the paper here called an order of sale is to be treated as a writ of execution or fieri facias issued to the sheriff, or as a process of any kind issued from the court, which the law required to be issued under the seal of the court, there can be no question that it was void, and conferred no authority upon the officer to sell the land.

The authorities are uniform that all process issuing from a court, which by law authenticates such process with its seal, is void if issued without a seal. Counsel for plaintiffs in error have not cited a single case to the contrary, nor have our own researches discovered one.

We have decided in this court that a writ of error is void for want of a seal, though the clerk had returned the transoript in obedience to the writ.

We have held that a bill of exceptions must be under the seal of the judge.

It is true that the paper now under consideration is not an ordinary fieri facias, nor is it any other common-law writ. It may be well, therefore, to consider what is its relation to the writ of fieri facias, and especially whether it was essential to the authority of the sheriff to make the sale. That the ordinary writ of fieri facias is the authority of the sheriff to levy on property and sell it is undoubted, and needs no reference to authorities to support it; and if the supposed writ is void, then the levy and sale are also void, and not merely voidable, because they are made without any authority on the part of the officer.

The decisions cited by counsel are all cases where process was issued irregularly, in point of time, or where the officer has not proceeded according to some statutory requirement which was directory to him, but did not affect his power to sell.

But if his power to sell depends upon a process, and that process shows on its face that it is void, it can confer no authority, and all his proceedings under it are simply void.

The question then recurs, did the authority of the sheriff to make the sale on which plaintiffs in error rely, depend upon the order of sale issued by the Court of Common Pleas?

In courts which pursue the chancery practice in foreclosing mortgages, unaffected by statutory provisions, the sale is made by a commissioner appointed by the court. This is usually one of the standing master commissioners of the court, or, for reasons shown, some special commissioner for that purpose. In neither case does any process or order under seal of the court issue to the commissioner. He may, if he thinks proper, procure a copy of the decree and order appointing him commissioner, or if the party who wishes the decree executed thinks proper in this mode to demand of him to proceed, he may furnish him such copy.

But it is believed that the decree itself is the authority on which the commissioner acts, and if he proceeds in conformity to the decree, the sale will be valid although no copy has been placed in the hands of the commissioner.

In the courts of Indiana the distinction between common law and chancery proceedings is abolished, and under their code of civil procedure but one form of action, called a civil action, is known. This code provides, § 407, that 'when a judgment requires the payment of money, or the delivery of real or personal property, the same may be enforced by execution.' Section 409 says, 'The execution must issue in the name of the State, and be directed to the sheriff of the county, sealed with the seal, and attested by the clerk of the court.'

Section 635, which relates to the proceedings to foreclose a mortgage, we give verbatim:

'A copy of the order of sale, and judgment, shall be issued and certified by the clerk, under the seal of the court, to the sheriff, who shall thereupon proceed to sell the mortgaged premises, or so much thereof as may be necessary to satisfy the judgment, interest, and costs, as upon execution; and if any part of the judgment, interest, and costs remain unsatisfied, the sheriff shall forwith proceed to levy the residue of the other property of the defendant.'

Though the order of sale here described may not come under the name of any of the recognized common law writs of execution, as capias, fieri facias, or others, yet it comes clearly within the function and supplies the purpose of an execution-that is, a process issuing from a court to enforce its judgment.

The statute recognizes it such, and requires that it shall issue under the seal of the court. The sheriff to whom it is directed is required to proceed 'as upon execution.' If the debt is not satisfied by the sale of the property specifically mentioned in the order, it the operates as a fieri facias, under which the sheriff is directed to levy the residue of any other property of the defendant. It is therefore to all intents and purposes an execution, and the statute expressly requires that it must issue under the seal of the court. Without the seal it is void. We cannot distinguish it from any other writ or process in this particular.

It is equally clear that under the Indiana statute the sheriff could not sell without this order, certified under the seal of the court, and placed in his hands. This is his authority, and if it is for any reason void, his acts purporting to be done under it are also void.

JUDGMENT AFFIRMED.


text: Talk:Insurance Company v. Hallock/Opinion of the Court