text:
Transportation Company v. Downer/Opinion of the Court

On the trial the plaintiff made out a prim a facie case by producing the bill of lading, showing the receipt of the coffee by the company at New York, and the contract for its transportation to Chicago, and by proving the arrival of the coffee at the latter place in the propeller Brooklyn in a ruined condition, and the consequent damages sustained. The company met this prim a facie case by showing that the loss was occasioned by one of the dangers of lake navigation. These terms, 'dangers of lake navigation,' include all the ordinary perils which attend navigation on the lakes, and among others, that which arises from shallowness of the waters at the entrance of harbors formed from them. The plaintiff then introduced testimony to show that this danger, and the consequent loss, might have been avoided by the exercise of proper care and skill on the part of the defendant. If the danger might have been thus avoided, it is plain that the loss should be attributed to the negligence and inattention of the company, and it should be held liable, notwithstanding the exception in the bill of lading. The burden of establishing such negligence and inattention rested with the plaintiff, but the court refused an instruction to the jury to that effect, prayed by the defendant, and instructed them that it was the duty of the defendant to show that it had not been guilty of negligence. In this respect the court erred. In Clark v. Barnwell, the precise point was involved, and the decision of the court in that case is decisive of the question in this. And that decision rests on principle. A peril of navigation having been shown to exist, and to have occasioned the loss whch is the subject of complaint, the defendant was prim a facie relieved from liability, for the loss was thus brought within the exceptions of the bill of lading. There was no presumption, from the simple fact of a loss occurring in this way, that there was any negligence on the part of the company. A presumption of negligence from the simple occurrence of an accident seldom arises, except where the accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar cases, or where it is caused by the mismanagement or misconstruction of a thing over which the defendant has immediate control, and for the management or construction of which he is responsible. Thus, in Scott v. The London and St. Catharine Dock Company, the plaintiff was injured by bags of sugar falling from a crane in which they were lowered to the ground from a warehouse by the defendant, and the court said, 'There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.'

So in Curtis v. The Rochester and Syracuse Railroad Company, the Court of Appeals of New York held that the mere fact that a passenger on a railroad car was injured by the train running off a switch was not of itself, without proof of the circumstances under which the accident occurred, presumptive evidence of negligence on the part of the company. The court said that carriers of passengers were not insurers, and that many injuries might occur to those they transported for which they were not responsible, but as railroad companies were bound to keep their roads, carriages, and all apparatus employed in working them, free from any defect which the utmost knowledge, skill, and vigilance could discover or prevent, if it appeared that an accident was caused by any deficiency in the road itself, the cars, or any portion of the apparatus belonging to the company and used in connection with its business, a presumption of negligence on the part of those whose duty it was to see that everything was in order immediately arose, it being extremely unlikely that any defect should exist of so hidden a nature that no degree of skill or care could have seen or discovered it.

It is plain that the grounds stated in these cases, upon which a presumption of negligence arises when an accident has occurred, have no application to the case at bar. The grounding of the propeller and the consequent loss of the coffee may have been consistent with the highest care and skill of the master, or it may have resulted from his negligence and inattention. The accident itself, irrespective of the circumstances, furnished no ground for any presumption one way or the other. If, therefore, the establishment of the negligence of the defendant was material to the recovery, the burden of proof rested upon the plaintiff.

For the error in the refusal of the instruction prayed and in the instruction given, the judgment must be REVERSED, and the cause

REMANDED FOR A NEW TRIAL.


text: Talk:Transportation Company v. Downer/Opinion of the Court

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


text:
Amy v. The Supervisors

AMY having obtained a judgment for money against Desmoines County, Iowa, in the Circuit Court for the District of Iowa, and not being paid, procured from the same court a mandamus against Burkholder, and several others, the supervisors of the county, to compel the levy of a tax. The mandamus not being obeyed, he sued them personally. They set up certain defences, to which he demurred. The court overruled the demurrer, and he brought the case here.

Mr. J. Grant, for the plaintiff in error, submitted a brief.

No opposing counsel.

Mr. Justice SWAYNE stated the case particularly, and delivered the opinion of the court.

title: Amy v. The Supervisors


text: Talk:Amy v. The Supervisors

title: Talk:Amy v. The Supervisors


text:
Amy v. The Supervisors/Opinion of the Court

This is a writ of error to the Circuit Court of the United States for the District of Iowa.

The plaintiff in error was the plaintiff in the court below. The declaration contains two counts. The first count alleges substantially that the plaintiff recovered a judgment against the county of Desmoines in the said Circuit Court; that afterwards such proceedings were had that a peremptory writ of mandamus was issued from the court and duly served upon the defendants as supervisors of said county, whereby they were commanded to levy a tax sufficient to pay the judgment and costs; that in September, 1868, it was their duty to levy such a tax, and that they neglected to do so, whereby the plaintiff sustained damage to the amount of $12,108 3/100.

The second count sets forth substantially the same facts; and, further, the provisions of the code of Iowa prescribing the duty of the defendants, as supervisors, under such circumstances, and declaring that a failure on their part to perform the duty enjoined, should render them personally responsible for the debt. It is further averred in this count that the judgment is in full force and unsatisfied, and that the defendants have levied no tax and made no provision for its payment, and that the plaintiff is thereby damaged in the sum stated in the first count.

The defendants, by their answer, set up three defences:

(1.) Nil debet.

(2.) That the District Court of Desmoines County had enjoined them from levying a tax to pay the judgment; that they were nevertheless proceeding to levy such tax when they were attached by order of the court for contempt of its process, and compelled to give bonds to answer said charge of contempt and to obey the injunction, and that those bonds were still in force and obligatory upon them.

(3.) That before the peremptory writ of mandamus was issued the legislature of Iowa repealed the statutory provision, whereby they were made individually liable for the delinquency charged against them, and that, by reason of such repeal, they are not so liable.

The plaintiff demurred to the answer. The court overruled the demurrer and gave judgment for the defendants.

The counsel for the plaintiff in error has filed an able and elaborate brief. None has been submitted in behalf of the defendants. A few remarks will be sufficient to dispose of the case.

The Circuit Court had authority to issue the writ of mandamus. It was the process resorted to by the plaintiff to procure satisfaction of his judgment. The State court was powerless to prevent its execution. In so far as concerned the process in question the injunction was a nullity. In such cases the two sets of tribunals-State and National-are as independent as they are separate. Neither can impede or arrest any action the other may take, within the limits of its jurisdiction, for the satisfaction of its judgments and decrees. Where either is in possession of the res sought to be reached, the process of the other must pause until that possession has terminated. But this rule has no application in the case before us. These principles are a part of the checks and balances of our dual and combined polity, and are indispensable to the harmonious and beneficial working of the system. If the ground assumed by the State court in this case can be maintained, the Constitution of the United States, and the laws made in pursuance thereof, as regards their judicial administration, instead of being the supreme law of the land, would be subordinated to the authority of the courts of every State in the Union. If this writ may be paralzed by the injunction relied upon, a writ of Fieri facias and a writ of levari facias may be defeated in the same way. In point of principle there is no distinction between them. Every judgment of a court of the United States may thus be rendered fruitless of any beneficial result. These views are conclusively maintained by Riggs v. Johnson, and the principle involved has since been reaffirmed in the cases which followed, and were controlled by that judgment.

It is not necessary to consider the effect of the repeal of the provision of the code which enacted that the delinquent parties shall be personally liable. There is a common law liability which was not affected by the repeal. The statute was only cumulative on the subject.

The rule is well settled, that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. There is an unbroken current of authorities to this effect. A mistake as to his duty and honest intentions will not excuse the offender. The question of the rule by which the measure of damages is to be ascertained is not before us, and we do not feel called upon to express any opinion upon the subject.

The defences set up in the answer of the defendants are clearly bad. The demurrer should have been sustained.

The judgment of the Circuit Court is REVERSED, and the cause will be remanded with instructions to that court to proceed

IN CONFORMITY TO THIS OPINION.

AT the same time with the preceding case was decided another case, which came here on certificate of division between the judges of the Circuit Court for Wisconsin. The case, namely, of


text: Talk:Amy v. The Supervisors/Opinion of the Court


text:
Page:A short history of social life in England.djvu/56

36 table; it was covered with a linen cloth, while among the nobles bowls and dishes were of brass, silver, and gold, and drinking-cups were of horn and leather. On a raised platform at the head of the table sat the mistress of the house—the lady, or dispenser of bread—serving out the warm and freshly made loaves which formed one of the chief articles of diet in Anglo-Saxon times. Huge joints of meat were freely devoured, fingers taking the place of forks, while the bones were thrown about afterwards. For this reason finger bowls and tablecloths were introduced, a very necessary addition after a meal of this description. Butter, cheese, honey, and vegetables having been duly served, the board was cleared away, and the women of the household bore drinking horns of ale and mead to their lords and masters seated on benches round the walls. This was the main feature of the feast, and lasted late into the afternoon or evening. Hard drinkers were our Anglo-Saxon ancestors, and fastidious withal as to the quality of their drink. The brewers thereof were for the most part women, known as ale-wives, and punished for brewing bad ale.

While ale and mead were being consumed with


text:
Smith v. Sac County

ERROR to the Circuit Court for the District of Iowa.

Samuel Smith sued the County of Sac, Iowa, on certain interest coupons attached to bonds purporting to have been issued by the county for the erection of a court-house.

According to the form of pleading in the Iowa courts, by petition and answer, which is adopted in the Circuit Court for that district, the plaintiff set out in a petition the adoption by vote of the people of the county, at a special election held July 7th, 1860, of a proposition submitted to them by the county judge, providing for the erection of a court-house, to cost $10,000, and the issuing of the bonds to that amount, &c.; that the proposition and the result of the vote thereon were duly recorded as required by law; that the bonds with coupons were issued accordingly; and after describing, by number and otherwise, twenty-five of the coupons, averred that the plaintiff was the owner and holder of them, that he received them in good faith before maturity and paid value therefor, and that the same are valid and legal claims against the county. Copies of the proposition submitted, the record of the vote thereon, and the bonds and coupons were made part of the petition. The bonds were payable to bearer, signed by the county judge, and with the county seal affixed, and recited on their face that they were 'issued by the said county, in accordance with a vote of the legal voters thereof, at a special election holden on Saturday, the 7th day of July, A. D. 1860, pursuant to a proclamation made by the county judge of said county, according to the statutes of the State of Iowa in such case made and provided, for the purpose of erecting a court-house in Sac City, the county seat of said county, as per said proclamation.' The concluding clause reads thus:

'In witness whereof, I, Eugene Criss, county judge of said County of Sac, have hereunto affixed my name, and caused the seal of Sac County to be attached, at Sac City, this first day of October, A. D. 1860.'The coupons were payable to the holder, and signed by the county judge. The answer opened thus:

'The defendant for answer denies that any such election as is set out in the petition was called or held; denies that the electors of said county (a majority of them) are in favor of building a court-house and issuing bonds in payment therefor; denies that any such bonds or coupons were issued, or any such contract let for building a court-house; denies that the county judge had any authority to call such election, or make such contract, or issue such bonds or coupons; defendant further denies each and every allegation in plaintiff's petition.'

Various statements, intended to defeat the claim, were then made.

It was stated by counsel at the bar, that the Revised Code of Iowa enacts that an answer shall contain 'a general denial of each allegation of the petition, or else of any knowledge or information thereof, sufficient to form a belief, OR a specific denial of each allegation of the petition controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. And also enacts that every material allegation of the petition, not controverted by the answer, must for the purposes of the action be admitted to be true.'

The case was submitted to the court, under the act of Congress authorizing the trial of issues of fact in the Circuit Courts, by the court, without a jury, and which provides that 'the finding of the court upon the facts, which finding may be either general or special, shall have the same effect as the verdict of a jury;' and further, that

'When the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment.'

The court, on the evidence, found as the facts:

'1st. That an order and proclamation was made by Eugene Criss, county judge of Sac County, for submitting to the vote of the people of the county, 'whether or not a court-house should be erected in the same, to cost $10,000, in bonds, &c., and whether or not a tax should be levied,' &c., as the same was alleged in the plaintiff's petition.

'2d. That an election was held on the 7th July, 1860, in pursuance of the said order and proclamation; and that the proposition was adopted by a majority of the votes cast at said election.

'3d. That the proposition and order for the submission of the same, together with a statement of the result of the election, was afterwards, by and under the direction of the said county judge, entered and recorded at large in the office of the said county judge in the 'Minute-Book' of the county judge and county court.

'That by the said record entry the said order for the submission of the said proposition to the vote of the people purported to have been made at a session of the county court on the 4th day of June, A. D. 1860; but that the said record was not in fact made and entered in the 'Minute-Book' at that time, nor until after the execution and delivery of the bonds, as hereinafter found; and that the said order was entered in said 'Minute-Book' in June, 1861, after the said county judge had ceased to have any power or jurisdiction over the financial business of the county.

'4th. That the said county judge of said county, having entered into a contract in behalf of said county, with one W. N. Meservy, for the erection by the said Meservy of a court-house in and for said county, did execute, October 1st, 1860, in behalf of the county, by affixing thereto his signature as such county judge, and the lawful seal of said county, and deliver to Meservy, in pursuance of the terms of the contract, ten bonds, purporting to be the bonds of the county, dated, &c., and coupons annexed, for the annual instalments of interest to grow due thereon as aforesaid, being for one hundred dollars each, and payable to bearer at said bank, or receivable for taxes at the county treasury of said county, at the option of the holder. Said bonds and coupons were all expressed in the same words and figures as set forth in the plaintiff's petition.

'5th. That the said county judge in fact signed, sealed, and delivered said bonds and coupons as aforesaid at Fort Dodge, in the County of Webster and State of Iowa, and not within the County of Sac; and that the contractor, Meservy, gave one of said bonds for $1000 as a gratuity to the county judge as soon as the same were delivered by said county judge to said Meservy; and no court-house was in fact ever built by said contractor, or any other person, in pursuance of said contract.

'6th. That the plaintiff, Smith, was, at the time of commencing this action, and still is, the holder and owner of twenty-five of the coupons, being those declared on; that he became such holder, by transfer thereof to him before maturity, and after the entry of said proceedings in the 'Minute-Book,' as hereinbefore found; that the said coupons were, at the commencement of this action, and still were, wholly unpaid.

'And, as matter of law 'arising upon, and resulting from the facts hereinbefore found,' the court was of opinion and adjudged that the said bonds and coupons were wholly void as against the said County of Sac, and that the defendant was entitled to judgment.'

To this opinion and judgment the plaintiff excepted.

On the case coming here the point was raised whether a finding that the plaintiff had had value for his bonds was not indispensable to sustain the judgment. There was not, as will have been observed, any finding of that fact, nor did the record present evidence to show it.

Mr. J. N. Rogers, for the plaintiff in error (after remarking upon the insufficiency of the answer to raise the question or put in issue the facts of good faith and consideration paid for the bonds):

It is sufficiently obvious, from the very terms of this adjudication, that the question whether or not the plaintiff was a holder in good faith and for value did not in fact at all enter into the decision of the case in the mind of the judge who pronounced it; but that he held the bonds to be 'wholly void as against the said county,' irrespective of the attitude of the holder.

The question now arises, however, whether this court can import into the special finding, by intendment, the additional fact that plaintiff is not a holder in good faith and for value, on the ground that fraud in the issue of the bonds is found; that this cast on the plaintiff the burden of proving himself to be a holder for value without notice; and that the verdict does not find affirmatively that he was such holder.

Can the verdict be thus aided by intendment?

Assuming, for the purposes of the argument (what, however, is not law), that a special verdict can supersede the necessity of a plea, and by specially finding matter of defence not pleaded, and therefore not in issue, entitle a defendant to judgment thereon; and further assuming (what is not the case), that the facts found do amount, as mere matter of law, to fraud, and not merely to evidence tending to show fraud, we submit that a plea of such fraud, had one been interposed, would have been fatally defective on demurrer, if it did not contain an allegation that plaintiff took with notice, or without giving value. What, then, it is necessary that the plea should allege, is it not equally necessary that the verdict should find? Otherwise, one-half of the issue, as material as the rest, is left undetermined on the record. How it would have been determined, had it been determined at all, this court, on error, cannot say. The rule as to the burden of proof is merely a rule of evidence to govern the court or jury on the trial in making up the verdict. It cannot supply the place of or supply defects in the verdict. There is no legal certainty that, because a fact is not specifically found in a special verdict, it was not proved. Hence arises the absolute necessity for the rule, which the authorities recognize, that a special verdict to be good must find all the facts essential to entitle one party or the other to judgment, and that it cannot be aided by intendment or presumption. If it were not so, the parties would be left at the mercy of the judge or jury trying the case; for the parties can exercise no control over either judge or jury in framing the verdict. They cannot compel a finding either way upon any particular issue of fact. A material fact may be thoroughly proven, and yet a jury bringing in a special verdict may omit to find it, through inadvertence or otherwise; and a judge may do the same thing, if not so probably from inadvertence, from mistaken views of the law as to what facts are material and what are not. If he has formed an opinion that certain facts, of the existence of which he is satisfied, are sufficient to authorize a judgment, he will not be likely to trouble himself to pass on other issues which he regards as immaterial, especially if to do so would require the weighing and sifting of conflicting evidence. In such case he will be apt to pass them over in silence.

Now, in such a case, the party against whom the judgment is rendered, on a finding of facts insufficient in themselves to support the judgment, is absolutely remediless, if the court of error is at liberty to add to the verdict by intendment, on the ground that a state of facts which he was bound to prove, not being affirmatively found, must be presumed not to exist. He may have proved it beyond question, or by a preponderance of evidence, and yet the court or jury may have omitted to find it, for one or the other of the reasons already suggested. If the fact is found either way, and the finding is against evidence, a motion for a new trial on that ground will afford the remedy. But if there is an entire omission to find either way upon the issue, and a finding upon it is an essential element in the facts on which judgment is to be based, there is no remedy, except to hold the verdict defective, and award a venire de novo. If in a court of error, it can be aided by intendment: if a fact essential to support the judgment, but not found by the verdict, can be assumed, because the burden was on the opposite party to prove the contrary, and the contrary is not found, then there is no safety for the rights of parties in case of a special verdict, since the judge or jury may find or omit to find upon such issues as they please, and are subject to no control in the selection.

We are advised and believe that the plaintiff is a holder bon a fide and for value, and can fully substantiate the fact by proof, and we submit that if the court is disturbed by want of a finding of that fact, that the ends of justice will be better satisfied by the award of a venire de novo, which will give both parties full opportunity to establish all material facts, than by resting an affirmance of this judgment upon a defence not pleaded, and on a fact not found, and (to say the least) perhaps not existing.

Mr. Galusha Parsons, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Smith v. Sac County


text:
United States Code/Title 11/Chapter 5/Section 510

§ 510. Subordination

 * (a) A subordination agreement is enforceable in a case under this title to the same extent that such agreement is enforceable under applicable nonbankruptcy law.

 * (b) For the purpose of distribution under this title, a claim arising from rescission of a purchase or sale of a security of the debtor or of an affiliate of the debtor, for damages arising from the purchase or sale of such a security, or for reimbursement or contribution allowed under section 502 on account of such a claim, shall be subordinated to all claims or interests that are senior to or equal the claim or interest represented by such security, except that if such security is common stock, such claim has the same priority as common stock.

 * (c) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may—
 * (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or
 * (2) order that any lien securing such a subordinated claim be transferred to the estate.


text: Talk:Smith v. Sac County

title: Talk:Smith v. Sac County


text:
Smith v. Sac County/Opinion of the Court

The plaintiff sets out in his petition all the proceedings, by vote of the county, which he deems necessary to authorize the issue of the bonds, with a copy of one of the bonds and coupons, and after describing, by number and otherwise, twenty-five of the coupons, avers that he is the owner and holder of them, that he received them in good faith before maturity and paid value therefor, and that the same are valid and legal claims against the county.

The defendant answers, denying each and every allegation of the petition, and then sets up that the bonds were issued without authority of law, failure of consideration, and other defences.

The denials of the first part of the answer, though not strictly in the form required by the rule, put in issue every material fact alleged in the petition. It therefore made an issue on the plaintiff's allegation that he became the holder of said coupons before maturity, and that he paid value therefor, so far as that might become material to be shown on the trial.

The parties having by stipulation submitted the case to the court without a jury, and the court made a special finding of facts, on which it held the law to be for defendant, and rendered a judgment accordingly, the question before us is, whether the judgment is justified by the facts found?

Treating the bonds and coupons sued on in this case, which are payable to bearer, as negotiable paper, and conceding to its fullest extent the protection which commercial usage throws around such paper in the hands of a bon a fide purchaser for value before maturity, it is nevertheless undoubtedly true that circumstances may be shown in connection with the origin of such paper, which will devolve upon the holder the burden of showing that he did give value for it before maturity. This principle is asserted in the text books of Chitty, Story, Parsons, and others, and is so laid down and sustained by numerous citations of authorities by the learned American annotator of Smith's Leading Cases, p. 752. In one of the latest of the English cases, Hall v. Featherstone, Pollock, C. B., says: 'If there are any circumstances in the nature of fraud or illegality which can be left to the jury, proof of these circumstances will cast on the plaintiff the onus of showing that he gave value for the bill.' To which Martin, Baron, added: 'I think there was, at the close of the defendant's case, evidence for the jury in support of the plea. The authorities have established a principle which is contrary to the general rule, by which a defendant is bound to prove all the facts necessary to constitute a defence.' And Bramwell said: 'The cases have established that if there be fraud or illegality in the inception of a bill or in the circumstances under which it was taken by the person who indorsed it to plaintiff, he must prove consideration. That is established beyond controversy.'

With this statement of the law on that subject, we approach the examination of the facts found by the court.

The fifth finding is, 'that the county judge in fact signed, sealed, and delivered said bonds and coupons at Fort Dodge, in the County of Webster, and State of Iowa, and not within the County of Sac: and that the contractor, Meservy, gave one of said bonds as a gratuity to the county judge as soon as the same were delivered by said county judge to said Meservy, and no court-house was ever built by said contractor or any other person in pursuance of said contract.'

Now the coupons sued on, being part of the transaction here referred to, was there not enough in what the court finds to devolve upon the plaintiff the necessity of showing that he purchased for value? In the language of Chief Baron Pollock, 'were there not circumstances in the nature of fraud, proof of which cast on the plaintiff the onus of showing that he gave value for the bonds?' They are circumstances from which no court or jury could fail to find fraud in the inception of the bonds on which he sued. Besides he had, perhaps unnecessarily, but expressly, averred that he had paid value, and this had been denied by defendant, so that the issue was fairly raised by the pleadings. He not only failed to prove that he gave value, but it does not appear that he offered any evidence to that effect. The bill of exceptions, which recites much that was offered and submitted in evidence, is silent on this point.

The sixth finding of the court is that the plaintiff was, at the time of commencing this action, and still is, the holder and owner of the twenty-five coupons declared on in the petition, that he became such holder by transfer thereof to him before maturity, and after the entry of the proceedings on the minute-book, &c.

It must be taken, then, that plaintiff did not show that he was a holder for value. There is neither finding nor evidence that he gave value, and the statement that he became the holder by transfer before maturity, does not imply that he was a purchaser in any sense or received them on any consideration whatever.

Under these circumstances the plaintiff can occupy no better position than Meservy, to whom the bonds were originally delivered by the county judge.

If Meservy had been plaintiff, ought the judgment to have been other than what it is on the record presented to us?

He contracted to build the court-house and never built it or attempted to do so. He received under this contract ten thousand dollars of what purported to be the bonds of the county. These bonds were signed, and the county seal, which was necessary to their validity, affixed by a person assuming to act as county judge in another county, at the place where Meservy resided, and as soon as the transaction was completed one of the bonds was given by Meservy as a gratuity to the person who had thus played the part of county judge. That the county judge should have left his own county and his official place of business, should have put the seal of the county in his pocket, and gone to meet Meservy in a place without the limits of his jurisdiction, should there have concocted these bonds, and on delivering ten of them to Meservy have received back one of them without any consideration but Meservy's satisfaction at the completion of the transaction, and that this should create in Meservy's favor a right of action against the county, is more than we can affirm. That the court-house was not built is only the natural result of such a proceeding. That the bonds should turn up in the possession of some one else was to be expected. But to hold that, after all this was shown in defence, such holder should have a judgment on those bonds, without any proof that he purchased them for value or that he gave any consideration for them at all, is in our judgment pushing the doctrine which gives sanctity to negotiable paper beyond any just principle or any decided case.

We think the judgment of the Circuit Court was right, and it is accordingly

AFFIRMED.


text: Talk:Smith v. Sac County/Opinion of the Court


text:
Page:Popular tales from the Norse (1912).djvu/558

 372 glistened from her; and, lo! on her other foot she had the fellow to the gold shoe.

So when the Prince knew her again, he grew so glad, he ran up to her and threw his arms round her, and gave her a kiss; and when he heard she was a King's daughter, he got gladder still, and then came the wedding-feast; and so

THUMBIKIN

on a time there was a woman who had an only son, and he was no taller than your thumb; and so they called him Thumbikin.

Now, when he had come to be old enough to know right and wrong, his mother told him to go out and woo him a bride, for now she said it was high tune he thought about getting a wife. When Thumbikin heard that, he was very glad; so they got their driving gear in order and set off, and his mother put him into her bosom. Now they were going to a palace where there was such an awfully big Princess, but when they had gone a bit of the way, Thumbikin was lost and gone. His mother hunted for him everywhere, and bawled to him, and wept because he was lost, and she couldn't find him again.

"Pip, pip" said Thumbikin, "here I am," and he had hidden himself in the horse's mane.

So he came out, and had to give his word to his mother


text:
The Sapphire

THIS was an appeal from the Circuit Court of the United States for the District of California.

The case was one of collision between the American ship Sapphire and the French transport Euryale, which took place in the harbor of San Francisco on the morning of December 22, 1867, by which the Euryale was considerably damaged. A libel was filed in the District Court two days afterwards, in the name of the Emperor Napoleon III, then Emperor of the French, as owner of the Euryale, against the Sapphire. The claimants filed an answer, alleging, among other things, that the damage was occasioned by the fault of the Euryale. Depositions were taken, and the court decreed in favor of the libellant, and awarded him $15,000, the total amount claimed. The claimants appealed to the Circuit Court, which affirmed the decree. They then, in July, 1869, appealed to this court. In the summer of 1870, Napoleon III was deposed. The case came on to be argued here February 16, 1871. Three questions were raised:

1. The right of the Emperor of France to have brought suit in our courts.

2. Whether, if rightly brought, the suit had not become abated by the deposition of the Emperor Napoleon III.

3. The question of merits; one of fact, and depending upon evidence stated towards the conclusion of the opinion (see infra, pp. 169, 170), where the point is considered.

Mr. C. B. Gooderich, for the appellant:

1. The sovereign of a country, the public rights or property of which have been destroyed, or injured, by a citizen of another country, cannot maintain suit against such citizen, in the judicial tribunals of the country to which such citizen belongs, to recover compensation for the injury. The remedy, and the only remedy, of the foreign sovereign is by diplomatic correspondence and arrangement between the two countries. The repose of nations, and their intercourse with each other, cannot be maintained, if sovereign rights are to be ascertained and adjudicated by a suit, in the name of the foreign sovereign, against a private citizen by whom they may have been violated.

The case before the court illustrates the propriety of the principle and reason upon which the position is taken. The claimants cannot call upon Napoleon, to answer interrogatories, upon oath, under the admiralty rule which requires libellants to answer. The owners of the Sapphire, in their answer, say that the collision was caused by the fault of the French transport. Admitting this to be true, still they cannot obtain a warrant for the arrest of a vessel belonging to the navy of France, and which is in our harbor in the charge of an officer of the French navy.

There should in every proceeding be a mutuality of remedy. In the case of specific performance, whenever from personal incapacity, the nature of the contract, or any other cause, the contract is incapable of being performed, against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former.

The case of Prioleau v. United States and Andrew Johnson, presents in its result difficulties attending a suit in the name of a foreign government, which can be surmounted only by holding that a foreign sovereign cannot maintain suit in the courts of another country, against its citizens, for the purpose of vindicating his sovereign rights. In the assertion of individual private rights he may have suit.

The cases cited say, that a foreign sovereign, by the institution of a suit, submits to the jurisdiction of the court divested of his sovereign rights; must answer to a cross-bill, upon oath; make discovery, or put some one forward, as party to the suit, who can. This shows that his sovereign rights cannot with propriety become the subject of a suit.

2. But supposing that the suit could yet be maintained if Napoleon III were now Emperor, it would seem certain that it cannot be continued, he being now deposed, and reduced to the state of a private person. The Euryale is a vessel of the French government; a government with which he has nothing whatever now to do; being banished and a fugitive.

3. [The counsel then discussed the question of fact.]

Mr. C. Cushing, contra (a brief of Mr. Melton Andrews being submitted on the merits), stated that suits had been maintained in Great Britain, in the name of the United States, within the last five years, in the following cases, he himself having been counsel in the same, namely: The Sumter (Admiralty), The Rappahannock (Admiralty), The Gibraltar (Admiralty), The Tallahassee (Admiralty), The Alexander (Admiralty), Prioleau (Chancery), Wagner (Chancery), Tait (Law), Gudgeon (Chancery), Blakely Company (Rolls), and in British America, in the case of Boyd and others (Chancery), and The Georgia (Admiralty).

Indeed the right of a government to sue in the courts of Great Britain is a right recognized from the time of Rolle's Abridgement (Temp. James I).

The courts in England hold, indeed, that a sovereign cannot be forced into court by suit, and to that extent some of the cases cited on the other side go. But they admit that, if a foreign sovereign appears in court voluntarily as plaintiff, the defendant may then sue him by cross-bill or otherwise. That is not to deny his right to sue, but only to declare its consequences.

2. The right to sue having been in this case one in which the name of the late Emperor was used only as representing the government, survives his deposition. Substitution on the record of the name of any new government of France, is matter as of course.

3. [The counsel then discussed the question of fact.]

Mr. Justice BRADLEY delivered the opinion of the court.

title: The Sapphire


text: Talk:The Sapphire

title: Talk:The Sapphire


text:
The Sapphire/Opinion of the Court

The first question raised is as to the right of the French Emperor to sue in our courts. On this point not the slightest difficulty exists. A foreign sovereign, as well as any other foreign person, who has a demand of a civil nature against any person here, may prosecute it in our courts. To deny him this privilege would manifest a want of comity and friendly feeling. Such a suit was sustained a want of comity and King of Spain in the third circuit by Justice Washington and Judge Peters in 1810. The Constitution expressly extends the judicial power to controversies between a State, or citizens thereof, and foreign States, citizens, or subjects, without reference to the subject-matter of the controversy. Our own government has largely availed itself of the like privilege to bring suits in the English courts in cases growing out of our late civil war. Twelve or more of such suits are enumerated in the brief of the appellees, brought within the last five years in the English law, chancery, and admiralty courts. There are numerous cases in the English reports in which suits of foreign sovereigns have been sustained, though it is held that a sovereign cannot be forced into court by suit.

The next question is, whether the suit has become abated by the recent deposition of the Emperor Napoleon. We think it has not. The reigning sovereign represents the national sovereignty, and that sovereignty is continuous and perpetual, residing in the proper successors of the sovereign for the time being. Napoleon was the owner of the Euryale, not as an individual, but as sovereign of France. This is substantially averred in the libel. On his deposition the sovereignty does not change, but merely the person or persons in whom it resides. The foreign state is the true and real owner of its public vessels of war. The reigning Emperor, or National Assembly, or other actual person or party in power, is but the agent and representative of the national sovereignty. A change in such representative works no change in the national sovereignty or its rights. The next successor recognized by our government is competent to carry on a suit already commenced and receive the fruits of it. A deed to or treaty with a sovereign as such enures to his successors in the government of the country. If a substitution of names is necessary or proper it is a formal matter, and can be made by the court under its general power to preserve due symmetry in its forms of proceeding. No allegation has been made that any change in the real and substantial ownership of the Euryale has occurred by the recent devolution of the sovereign power. The vessel has always belonged and still belongs to the French nation.

If a special case should arise in which it could be shown that injustice to the other party would ensue from a continuance of the proceedings after the death or deposition of a sovereign, the court, in the exercise of its discretionary power, would take such order as the exigency might require to prevent such a result.

The remaining question relates to the merits of the case. And on the merits of the case, as presented by the record, we think that the court below erred in imposing the whole damage upon the Sapphire. We think that the Euryale was equally in fault, and that the damage ought to be divided between them. It is not our general practice to scrutinize very carefully the weight of evidence in cases of collision, where the evidence is substantially conflicting, and where both District and Circuit Courts have concurred in a decree upon the merits. Our views upon this subject will be found quite fully expressed by Mr. Justice Clifford in the case of The Baltimore. But this case depends upon a narrow point, the evidence on which is in our view so decidedly adverse to the sole liability of the Sapphire that it becomes our duty to notice it.

The Euryale came to anchor in the harbor on the 14th of December, about six hundred yards from the wharf. She was of four hundred and fifty tons burden, drew thirteen feet of water, and had out fifty-six fathoms of chain, and an anchor weighing 3500 pounds. The Sapphire, of thirteen hundred tons burden, came to anchor about the 18th of December, about three hundred yards (as alleged both in the libel and answer) to the southeasterly of the Euryale, at a point father up the harbor, and farther from the wharf. She had out about fifty fathoms of chain, and an anchor weighing 3600 to 3800 pounds, and she was heavily laden, drawing about twenty-three feet of water.

On the night of the 21st of December it commenced to blow pretty strong from the southeast, by midnight blowing a six-knot breeze, and it kept increasing up to the time of the collision at five o'clock the next morning, when it seems to have been blowing a gale. At half-past three in the morning the tide changed from ebb to flood, the direction of flood-tide being southeasterly, directly contrary to that of the wind. And the captain of the Euryale says (and he is not contradicted) that the wind was twice as strong as the tide. The weight of the evidence is that the Sapphire, under the force of the wind, dragged her anchor and got inside of the Euryale; that is, between her and the city. At a few minutes past five the collision occurred.

The libellant insists that the Sapphire was in fault in two points: 1st, in anchoring too near the Euryale in the first instance; 2d, in not having out sufficient anchors. We think that the first charge is not sustained. Experienced pilots testified that two hundred and fifty yards distance is a good and sufficient berth in that harbor. And it is to be noted that the master of the Euryale made no complaint of too great proximity, although she and the Sapphire were lying in the same relative position for several days. On the other point, we agree with the District and Circuit Courts that the Sapphire was in fault. Had a second anchor been put out at an earlier period the collision in all probability would not have occurred. Indeed, the captain of the Sapphire gave orders to the first officer that if she was likely to start, to put the second anchor down. But it was not done till the collision itself broke the ring-stopper and let it down. A more careful watch would have led to the discovery of the vessel's having started, and would have prevented the catastrophe which ensued.

But we are also satisfied that the Euryale was not free from fault. The captain was not on board. The first officer, though on board, was not on deck from eleven o'clock until after the collision. Le Noir, the third officer, was officer of the deck that night. He was called up by the head, or chief, of the watch at three o'clock to observe that the Sapphire was approaching nearer to them than she had been. He attributed it to her letting out more chain, and returned below, and did not come on deck again until five o'clock, a few moments before the collision, when it was too late to avoid it. The instant he came on deck he ordered done the thing that could have saved them had it been done earlier-the jib to be hoisted. It would have sheered the vessel off, and allowed the Sapphire to pass her. Such is the testimony of the libellant's own witnesses. It is the judgment of the first officer of the ship. Why was not this done before? Why was not the officer, on such a night, in such a gale, at his post? At four o'clock the man in charge of the watch saw the Sapphire approaching, and says he made a report to that effect. The first officer says that no report was made to him. But the third officer, who was officer of the deck, does not say that it was not made to him. If the fact was not communicated to the proper officer, that was in itself a fault. If it was communicated and not attended to, the case of the libellant is not bettered. But the evidence is very strong that the officer received the information. Deveaux, the head of the watch, says that he reported the fact at four o'clock; and Bioux, who had charge of the watch between four and five o'clock, says that between those hours he saw the Sapphire with the wind astern, and heading the current, coming towards the Euryale; that she continued to approach gradually, and that he reported this to Mr. Le Noir between four and five o'clock. Here, then, was a clear neglect of proper precautions for an entire hour immediately preceding the collision.

We cannot avoid the conviction that there was a want of proper care and vigilance on the part of the officers of the Euryale, and that this contributed to produce the collision which ensued. Both parties being in fault, the damages ought to be equally divided between them.

Decree of the Circuit Court REVERSED, and the cause remitted to that court with directions to enter a decree

IN CONFORMITY WITH THIS OPINION.

title: The Sapphire/Opinion of the Court


text: Talk:The Sapphire/Opinion of the Court

title: Talk:The Sapphire/Opinion of the Court


text:
Coal Company v. Blatchford

APPEAL from the Circuit Court for the Western District of Pennsylvania. The case was this:

The eleventh section of the Judiciary Act enacts:

'That the Circuit Courts shall have original cognizance. . . of all suits of a civil nature, &c., where an alien is a party, or the suit is between a citizen of the State where the suit is brought and a citizen of another State.'

With this provision in force, R. M. Blatchford and J. B. Newman filed their bill for the foreclosure of a mortgage executed by the Susquehanna and Wyoming Valley Railroad and Coal Company to them as trustees, to secure the payment of the company's bonds and for the sale of the mortgaged property. The mortgage conferred upon the plaintiffs the usual rights and powers of mortgagees, and contained stipulations authorizing them to use different remedies in case default was made in the payments provided.

The bill stated that the defendant was a corporation created and organized under the laws of the State of Pennsylvania; that the plaintiff, Blatchford, was a citizen of the State of New York; that the plaintiff, Newman, was a citizen of the State of Pennsylvania, and that they as trustees sued solely for the use of Henry Beckett, an alien and a subject of the Queen of Great Britain, and Joseph Loyd, a citizen of New Jersey, both residing in New Jersey. The defendant demurred to the bill on the ground that the plaintiff Newman and the defendant corporation, being citizens of the same State, the court had not jurisdiction of the cause. The court overruled the demurrer, and an answer and replication having been filed, the case was heard on the pleadings; and a decree rendered for the plaintiffs. From this decree the appeal was taken; and the question presented for consideration here was whether the jurisdiction of the Federal court depended upon the citizenship of the trustees, who were the plaintiffs, or of the parties for whose benefit the suit was averred to have been brought.

Mr. Theodore Cuyler, in support of the jurisdiction:

The jurisdiction of the Circuit Courts, when it is founded upon the citizenship of the parties, rests upon that of the real and not of the nominal parties to the suit. This is decided in Browne v. Strode, where this court says that the courts of the United States have jurisdiction in a case between the citizens of the same State, if the plaintiffs are only nominal plaintiffs, for the use of an alien. By a law of the State of Mississippi sheriffs were required to give bond to the governor for the faithful performance of their duty. 'The fact that the governor and the party sued are citizens of the same State, will not,' say this court, in McNutt v. Bland, 'oust the jurisdiction of the Circuit Court of the United States, provided the party for whose use the suit is brought is a citizen of another State.' So again the court declares in Wormley v. Wormley, that the court will not suffer its jurisdiction in an equity cause to be ousted by the circumstances of the joinder or non-joinder of merely formal parties, who are not entitled to sue or liable to be sued in the United States courts. In Irvine v. Lowry, the doctrine of Brown v. Strode is strongly affirmed.

In this case nothing can be actually decreed in favor of Newman, the party referred to in the demurrer. Both he and Blatchford, his co-trustee, are, in the language of Judge Baldwin, in Irvine v. Lowry, 'the mere instruments or conduits through whom the legal right of the real plaintiff could be asserted.'

At all events, the objection should have been taken by plea in abatement. It is too late when coming on demurrer.

Mr. E. F. Hodges, for the appellant, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Coal Company v. Blatchford


text: Talk:Coal Company v. Blatchford

title: Talk:Coal Company v. Blatchford


text:
Coal Company v. Blatchford/Opinion of the Court

The eleventh section of the Judiciary Act of 1789 vests in the Circuit Courts original jurisdiction of suits of a civil nature, at law and in equity, when the matter involved exceeds, exclusive of costs, the sum or value of five hundred dollars, in three classes of cases: 1st, when the United States are plaintiffs or petitioners; 2d, when an alien is a party; and, 3d, when the suit is between a citizen of the State where the suit is brought and a citizen of another State.

In the last two classes the designation of the party, plaintiff or defendant, is in the singular number, but the designation is intended to embrace all the persons who are on one side, however numerous, so that each distinct interest must be represented by persons, all of whom are entitled to sue, or are liable to be sued, in the Federal courts. In other words, if there are several co-plaintiffs, the intention of the act is that each plaintiff must be competent to sue, and, if there are several co-defendants, each defendant must be liable to be sued, or the jurisdiction cannot be entertained. Executors and trustees suing for others' benefit form no exception to this rule. If they are personally qualified by their citizenship to bring suit in the Federal courts, the jurisdiction is not defeated by the fact that the parties whom they represent may be disqualified. This has been repeatedly adjudged. It was so adjudged as early as 1808, in Chappedelaine v. Dechenaux, where the complainants, though citizens of France, brought suit, one as residuary legatee and the other as administrator de bonis non of a testator, who had been a citizen of Georgia, against the defendant, who was a citizen of that State. Counsel, on opening the question of jurisdiction, was stopped by the court, Mr. Chief Justice Marshall observing that the impression of the court was that the case was clearly within the jurisdiction of the courts of the United States; that the plaintiffs were aliens; and, although they sued as trustees, they were entitled to sue in the Circuit Court. This ruling was followed in Childress v. Emory, and in Osborn v. The Bank of the United States, the Chief Justice laid it down as a universal rule that, in controversies between citizens of different States, the jurisdiction of the Federal courts depended not upon the relative situation of the parties concerned in interest, but upon the relative situation of the parties named in the record.

These authorities are conclusive of the present case. The defendant is a corporation created under the laws of Pennsylvania. One of the plaintiffs, Blatchford, describes himself in the bill as a citizen of the State of New York, and the plaintiff Newman describes himself as a citizen of Pennsylvania, and they both describe themselves as trustees, who sue solely for the use of Henry Beckett, an alien and a subject of the Queen of Great Britain, and of Joseph Loyd, a citizen of New Jersey. The demurrer of the defendant raises the objection that the plaintiff, Newman, is a citizen of the same State with the defendant, and that the court has in consequence no jurisdiction of the case. If there were no other parties, the suit clearly would not lie, for the eleventh section of the Judiciary Act only authorizes a suit between citizens of different States, not between citizens of the same State. And the objection, according to the construction we give to that section and to the authorities cited, is equally available when a disqualified party is joined with others who are qualified.

The cases of Browne v. Strode, and McNutt v. Bland, upon which the plaintiffs rely, do not aid them. In the first case the action was on a bond given by an executor for the faithful execution of his testator's will, in conformity with the statute of Virginia, which required all such bonds to be made payable to the justices of the peace of the county where administration was granted, but allowed suits to be brought upon them at the instance of any party aggrieved. The object of the action was to recover of the defendant, a citizen of Virginia, a debt due by the testator to a British subject, and was brought in the name of the justices of the peace of the county, who were also citizens of that State. It was held that the Circuit Court had jurisdiction.

In McNutt v. Bland the action was on a bond given by a sheriff of a county in Mississippi. By the law of that State sheriffs were required to execute bonds to the governor of the State and his successors, conditioned for the faithful performance of the duties of their office, which bond could be prosecuted at any time by any party injured until the whole amount of the penalty was recovered. The action in the case cited was brought in the name of the governor for the use of citizens of New York, against the defendants, who were citizens of Mississippi. Upon demurrer it was held by this court that the Circuit Court had jurisdiction.

'In this case,' said the court, 'there is a controversy and suit between citizens of New York and Mississippi; there is neither between the governor and the defendants. As the instrument of the State law to afford a remedy against the sheriff and his sureties, his name is on the bond and to the suit upon it, but in no just view of the Constitution or law can he be considered as a litigant party; both look to things, not names; to the actors in controversies and suits, not to the mere forms or inactive instruments used in conducting them in virtue of some positive law.' The court then cites the case of Browne v. Strode, and states the principle, on which it was decided, to be, 'that where the real and only controversy is between citizens of different States, of an alien or a citizen, and the plaintiff is by some positive law compelled to use the name of a public officer who has not, or ever had any interest in or control over it, the courts of the United States will not consider any others as parties to the suit, than the persons between whom the litigation before them exists.'

There is no analogy between these cases and the case at bar. The nominal plaintiffs in those cases were not trustees, and held nothing for the use or benefit of the real parties in interest. They could not, as is said in McNutt v. Bland, prevent the institution or prosecution of the actions or exercise any control over them. The justices of the peace in the one case, and the governor in the other, were the mere conduits through whom the law afforded a remedy to the parties aggrieved.

In the case at bar the plaintiffs are the real prosecutors of the suit. They are parties to the mortgage contract negotiating its terms and stipulations, and to them the usual rights and powers of the mortgagees are reserved, and to them the usual obligations of mortgagors are made. The right to use different remedies is expressly provided upon default in the payments stipulated, and the adoption of either rests at the option of the plaintiffs. So long as they do not refuse to discharge the trusts reposed in them, other parties are not authorized to institute or prosecute any proceedings for the enforcement of the mortgage, or to exercise any control over them.

The case is not one where a plea in abatement was required to raise the question of citizenship. Here the citizenship of the parties is averred in the bill of complaint, and the consequent defect in the jurisdiction of the court is apparent, and a defect of this character thus disclosed may be reached on demurrer or taken advantage of without demurrer, on motion, at any stage of the proceedings. A plea in abatement is required only where the citizenship averred is such as to support the jurisdiction of the court and the defendant desires to controvert the averment. The question of citizenship constitutes no part of the issue upon the merits.

It follows, from the views expressed, that the decree of the court below must be REVERSED, and that the cause must be remanded with directions to the court to dismiss the bill

FOR WANT OF JURISDICTION.


text: Talk:Coal Company v. Blatchford/Opinion of the Court


text:
United States v. O'Keefe

APPEAL from the Court of Claims; the case being thus:

By act of Congress of 1855, establishing the Court of Claims, persons are authorized to sue the United States. The words of the enactment are:

'And the said court SHALL hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, which may be suggested to it by a petition filed therein.'When the court gives judgment for the claimant, the judgment is paid by the Secretary of the Treasury as of course, unless within a time specified the United States appeal to this court; Congress making always, in the annual appropriation bill, an appropriation for judgments in the Court of Claims.

By the terms of a later act (that of July 27, 1868), the right to recover from the United States, by process in the said court, the proceeds of captured and abandoned property, is confined to 'citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts.'

With these statutes in force, one O'Keefe, a subject of Great Britain, brought suit in the Court of Claims to recover from the United States the proceeds of certain captured and abandoned cotton. The question was, conceding his right otherwise to recover, whether Great Britain gave our citizens the right to prosecute claims against her, in her courts.

The Court of Claims found as a fact,

'That the government of England accords to its subjects and aliens the right to prosecute claims against it by petition of right given by the common law of England, and regulated by statute 23d and 24th Victoria, July 3, 1860, as to the mode of procedure; in which the petition addressed to the King is, by his fiat indorsed thereon, directed to a court of his kingdom, to hear and determine the case. The fiat, except in a very extraordinary case, is granted as a matter of right to any suppliant, subject or alien. The petition is in form addressed to the grace and favor of the King, but in practice is left at the office of the Home Secretary, and the fiat is then obtained as a matter of official routine.'

By the act of 23d and 24th Victoria, thus referred to in the above finding, and so made part of it, it is enacted that:

'§ 2. The said petition shall be left with the Secretary of State for the Home Department, in order that the same may be submitted to her Majesty for her Majesty's gracious consideration, and in order that her Majesty, if she shall think fit, may grant her fiat that right be done, and no fee or sum of money shall be payable by the suppliant on so leaving such petition, or upon his receiving back the same.

'§ 3. Upon her Majesty's fiat being obtained to such petition, a copy of such petition and fiat shall be left at the office of the solicitor to the treasury, with an indorsement thereon in the form or to the effect in the schedule [No. 2] to this act annexed, praying for a plea or answer on behalf of her Majesty within twenty-eight days.'

The solicitor mentioned in the last section is to transmit the petition to the department of the government having charge of the subject to which it relates; and proceedings are there to be taken to have the thing judicially heard. In case of failure on behalf of her Majesty, or other person called upon to plead, answer, or demur, in due him, either to such petition, or at any subsequent stage of the proceedings thereon, the suppliant shall be at liberty to apply to the court or a judge for an order, that the petition be taken pro confesso; which, on proofs, &c., it may be. After judgment, it is made lawful for the commissioners of her Majesty's treasury, and they are required, to pay the amount of any moneys and costs as to which a judgment shall be given, &c., out of any moneys in their hands for the time being applicable thereto, or which may be thereafter voted by Parliament for that purpose, provided such petition shall relate to any public matter; and in case the same shall relate to any matter affecting her Majesty in her private capacity, the amount to which the suppliant is entitled shall be paid to him out of such funds or moneys as her Majesty shall be graciously pleased to direct to be applied for that purpose.

The 15th section of the act enacts that the judges of the courts of law, or three or more of the judges of the Court of Chancery, &c., shall make all such general rules and orders in their said respective courts of law and equity for regulating the pleading and practice on such petitions of right, and for the effectual execution of the act, and of its intention and object, as they may think fit, necessary, reasonable, or proper, and frame writs and forms of proceeding; 'provided always,' however, the statute goes on to say,'That it shall be lawful for the Queen's most excellent Majesty, by any proclamation inserted in the London Gazette, or for either of the houses of Parliament, by any resolution passed at any time within three months next after such rules, orders, and regulations shall have been laid before Parliament, to suspend the whole or any part of such rules, orders, or regulations, and in such case the whole, or such part thereof as shall be so suspended, shall not be binding and obligatory on the said courts.'

The Court of Claims, considering that this act of the British government did 'accord to citizens of the United States the right to prosecute claims against such government in its courts,' and considering further, that on the merits O'Keefe had made out his case, held as matter of law that he was entitled to judgment. The United States appealed.

Mr. Akerman, Attorney-General of the United States, and Mr. Talbot, Assistant Attorney-General, for the appellant:

The facts found are not sufficient to support the conclusion of law rested upon them. The court does not find that the government of Great Britain grants to any person an independent right to sue that government. The sovereign's permission that the suit may be brought in court, is not granted as a matter of course, but at the royal discretion, which withholds it when the sovereign deems fit. A right differing from this altogether, is that which was provided by statute of the United States establishing the Court of Claims. That statute enacts that the said court SHALL hear and determine all claims. . . which shall be suggested to it by way of petition. Suppose that this enactment should read: 'The said court, the President in each case consenting thereto, shall hear and determine all claims founded,' &c. Can there be a doubt that the privilege then granted would be different from the right now provided? Certainly not. The right to sue the United States in the Court of Claims, which is now unconditioned, would then be subject to the will of the Executive. No petitioner could obtain hearing in that court until he first obtained the consent to such hearing of the President, the supreme head of the departments, against the action of one of which he wished to obtain a judgment.

There is another respect in which the remedy by petition of right lacks an essential element of a genuine remedy by process of law. The 15th section of the act of Parliament shows that proceedings in courts upon a petition of right, are subject to the direct control of the royal authority. The sovereign may, by proclamation, suspend the rules adopted by the courts to regulate such proceedings, so that the same 'shall not be binding and obligatory on the said courts.' The proceeding, by petition of right, has none of the freedom of a right to prosecute a claim. The jurisdiction of the Court of Claims, on the other hand, is based upon a law of the land. The jurisdiction of an English court depends upon the arbitrary will of a ruler. The right, in return for which the American right is to be accorded, should be substantially like the American right. It is not substantially like the American right, when it depends for its exercise upon the arbitrary will of the government, no matter what may have been the general custom of the government in the exercise of such arbitrary will, no matter how liberal the actual practice in the past may have been.

Messrs. J. J. Weed and T. Wilson, with a brief of Messrs. Cooley and Clark, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: United States v. O'Keefe


text:
Page:Popular tales from the Norse (1912).djvu/559

 Rh that he wouldn't do so any more. But when they had driven a bit farther on, Thumbikin was lost again. His mother hunted for him, and called him and wept; but gone he was, and gone he stayed.

"Pip, pip" said Thumbikin at last; and then she heard how he laughed and tittered, but she couldn't find him at all for the life of her.

"Pip, pip, why, here I am now!" said Thumbikin, and came out of the horse's ear.

So he had to give his word that he wouldn't hide himself again; but they had scarce driven a bit farther before he was gone again. He couldn't help it. As for his mother, she hunted, and wept, and called him by name; but gone he was, and gone he stayed; and the more she hunted, the less she could find him in any way.

"Pip, pip, here I am then," said Thumbikin.

But she couldn't make out at all where he was, his voice sounded so dull and muffled.

So she hunted, and he kept on saying, "Pip, here I am," and laughed and chuckled, that she couldn't find him; but all at once the horse snorted, and it snorted Thumbikin out, for he had crept up one of his nostrils.

Then his mother took him and put him into a bag; she knew no other way, for she saw well enough he couldn't help hiding himself.

So when they came to the palace the match was soon made, for the Princess thought him a pretty little chap, and it wasn't long before the wedding came on too.

Now, when they were going to sit down to the wedding-feast, Thumbikin sat at the table by the Princess's side; but he had worse than no seat, for when he was to eat he


text: Talk:United States v. O'Keefe

title: Talk:United States v. O'Keefe


text:
United States v. O'Keefe/Opinion of the Court

It is insisted that Great Britain does not accord to our citizens the right to prosecute claims against her government in her courts, because the mode of proceeding in that country for the recovery of claims against the government depends on the will of the Crown, while with us the right is absolute.

It is a familiar principle that all governments possess an immunity from suit, and it is only in a spirit of liberality, and to promote the ends of justice, that they ever allow themselves to be brought into court. If the privilege be granted at all, necessarily the regulations concerning it and the mode of proceeding will differ, as much as the governments themselves differ.

In England, it is easy to see that the method of redressing injuries to which the Crown is a party, would be different from the remedy adopted in this country in case the United States be the aggressor, because of the principle underlying the English constitution, that the King can do no wrong. On this account, although it would not do to issue mandatory process against the sovereign, yet the law being unwilling that private rights should be invaded in the conduct of public affairs and not redressed, has furnished the subject who is thus injured with a mode of obtaining redress, which is consistent with the idea of kingly prerogative. The law allows him by petition to inform the King of the nature of his grievance, and 'as the law presumes that to know of any injury and to redress it are inseparable in the royal breast, it then issues, as of course, in the King's own name, his orders to his judges to do justice to the party aggrieved.' #fn-s-s-s

This valuable privilege, secured to the subject in the time of Edward the First, is now crystallized in the common law of England. As the prayer of the petition is grantable ex debito justitiae, ii is called a petition of right, and is a judicial proceeding, to be tried like suits between subject and subject.

It does not exist by virtue of any statute, nor does the recent legislation in England concerning it do more than to regulate the manner of its exercise and to confer on the petitioner the privilege, not before granted, of instituting his proceeding in any one of the superior courts of common law or equity in Westminster.

In this condition of the law regarding the petition of right, which is conceded to aliens as well as subjects, how can it be contended that the British government does not accord to citizens of the United States the right to prosecute claims against it in its courts? It is of no consequence that, theoretically speaking, the permission of the Crown is necessary to the filing of the petition, because it is the duty of the King to grant it, and the right of the subject to demand it. And we find that it is never refused, except in very extraordinary cases, and this proves nothing against the existence of the right. It is easy to see that cases might arise, involving political considerations, in which it would be eminently proper for the sovereign to withhold his permission, but Congress did not legislate with reference to such a state of things. It would be a severe rule of interpretation that would exclude all British subjects from the Court of Claims, because in a few sporadic cases, from motives of state policy, the petition of right was denied. And we cannot impute to the legislature an intention that would produce such a result, in the absence of an express declaration to that effect. Evidently Congress meant to confer on the British subject the right to sue in the Court of Claims under the act relating to captured and abandoned property, if, in the ordinary course of the administration of justice in England, the law secures to the American citizen the right to prosecute his claim against the government in its courts. That the petition of right accomplishes this object, cannot admit of question. If the mode of proceeding to enforce it be formal and ceremonious, it is nevertheless a practical and efficient remedy for the invasion by the sovereign power of individual rights. Indeed, it is not less practical and efficient than a suit in the Court of Claims. And in one important particular the two proceedings are alike, for both end with the recovery of the judgments. After they are obtained, it depends in England on the Parliament, and in this country on Congress, whether or not they shall be paid.

We all agree that O'Keefe had the right to bring his action in the Court of Claims, and the judgment of that court is therefore

AFFIRMED.


text: Talk:United States v. O'Keefe/Opinion of the Court


text:
Leon v. Galceran

GALCERAN and two other sailors brought each a suit in personam, in one of the State courts of Louisiana, against Maristany, owner of the schooner Gallege, to recover mariners' wages, and had the schooner, which was subject to a lien and 'privilege' in their favor, according to the laws of Louisiana, similar in some respects to the principles of the maritime law, sequestered by the sheriff of the parish. The writ of sequestration was levied upon the schooner, which was afterwards released upon Maristany's giving a forthcoming bond, with one Leon as surety, for the return of the vessel to the sheriff on the final judgment. Judgments having been rendered by default against Maristany, the owner, in personam, for the amounts claimed, with the mariner's lien and privilege upon the property sequestered, a writ of ''fi. fa.'' was issued and demand made without effect, of the defendant in execution, by the sheriff, for the return of the property bonded. On the return of the sheriff that the property bonded could not be found, suits (the suits below) were brought in the same court by the three sailors against Leon, to enforce in personam against him the obligation of the forthcoming bonds, and judgments were rendered in personam against Leon, the surety, in their favor, for the amounts fixed by the original judgments. From the judgments thus rendered in the court below (that having been the highest court in Louisiana where a decision in the suit could be had), Leon took these writs of error.

Messrs. Cushing and Drew, for the plaintiff in error.

Even if the State court could entertain a personal action against the owner, it had no jurisdiction over the vessel by conservatory writ and proceeding in rem to enforce a maritime lien by seizure before judgment. This is settled in The Moses Taylor, and in The Hine v. Trevor. Having no jurisdiction, therefore, over the vessel in a proceeding in rem, the judicial bond given in that court for its delivery was null and void; and the court having no authority of law, or jurisdiction over the subject-matter, the order of the court to bond is also an absolute nullity.

'The rule, that as one binds himself he shall remain bound, may be true in mere conventional obligations, but the effect of judicial bonds must be tested by the law directing them to be taken. That which is superadded must be rejected and that which is omitted supplied. So, if there be no law authorizing such a bond to be taken, or if the prerequisites required for the taking thereof be not fulfilled, the bond will not bind; there is error, and the consideration falls.'

Galceran, by brief signed propri a persona, contra:

The right of mariners to bring suits in personam against the owners of the vessel on which they have earned their wages, in the State courts, is expressly reserved to them by the Judiciary Act of 1789, under the proviso, 'saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.'

This is the right which has been exercised in this case. The State court had jurisdiction over the subject-matter of the controversy, inasmuch as the suits were brought in personam, which is clearly a common law remedy, and judgments obtained personally against the owner of the vessel.

The writ of sequestration was issued as a mesne or conservatory process, to preserve intact pendente lite, a lien and privilege granted by law, and to secure the presence of the vessel within the territorial jurisdiction of the State court, until after the final judgments, to be then subjected to execution and sale to satisfy said judgments; and inasmuch as the writ was only resorted to as a means of enabling the State court more effectually to exercise its lawful jurisdiction and to secure in advance the execution of valid personal judgments on transitory property pledged by law to their payment, it follows that the writ was as lawful as the suit itself, to which indeed it was a mere appendage or incident, and as the writ of ''fi. fa.'' issued on the personal judgments and of which the writ of sequestration was the mere precursor.

The only thing which the Federal Constitution and the Judiciary Act of 1789 seem to have taken away from the State courts is the 'cognizance of civil causes of admiralty and maritime jurisdiction,' when the same are sought to be brought solely in rem against the offending vessel itself as a party defendant to the suit, according to the peculiar forms of the proceedings in rem of the admiralty courts, the judgments and sales of which are building on the whole world, erga omnes.

The writ of sequestration has no analogy whatever with the admiralty process, as understood and defined by writers on admiralty law.

It cannot be pretended that vessels are not liable to seizure under executions issued upon judgments rendered by State courts. How, then, can it be contended that a writ of attachment or any other mesne or conservatory process, which only anticipates and subserves the writ of ''fi. fa., cannot be lawfully resorted to, when sanctioned by the State law, to prevent the departure of the vessel pendente lite'', in order to subject it afterwards under execution to the payment of the creditor's personal judgment, for which she is legally pledged?

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Leon v. Galceran


text: Talk:Leon v. Galceran

title: Talk:Leon v. Galceran


text:
Leon v. Galceran/Opinion of the Court

Mariners in suits to recover their wages, may proceed against the owner or master of the ship in personam, or they may proceed in rem against the ship or ship and freight, at their election.

Where the suit is in rem against the ship or ship and freight, the original jurisdiction of the controversy is exclusive in the District Courts, as provided by the ninth section of the Judiciary Act, but when the suit is in personam against the owner or master of the vessel, the mariner may proceed by libel in the District Court, or he may, at his election, proceed in an action at law either in the Circuit Court, if he and his debtor are citizens of different States, or in a State court as in other causes of action cognizable in the State and Federal courts exercising jurisdiction in common law cases, as provided in the eleventh section of the Judiciary Act.

He may have an action at law in the case supposed either in the Circuit Court or in a State court, because the common law, in such a case, is competent to give him a remedy, and wherever the common law is competent to give a party a remedy in such a case, the right to such a remedy is reserved and secured to suitors by the saving clause contained in the ninth section of the Judiciary Act.

Services, as mariners on board the schooner Gallego, were rendered by each of the appellees in these cases, and their claims for wages remaining unpaid, on the eighth of August, 1868, they severally brought suit in personam against Joseph Maristany, the sole owner of the schooner, to recover the respective amounts due to them as wages for their services as such mariners.

Claims of the kind create a lien upon the vessel under the laws of that State quite similar to the lien which arises in such cases under the maritime law. The accordingly applied to the court where the suits were returnable for writs of sequestration, and the same having been granted and placed in the hands of the sheriff for service, were levied upon the schooner as a security to respond to the judgments which the plaintiffs in the respective suits might recover against the owner of the vessel, as the defendant in the several suits.

Such a writ when duly issued and served in such a case has substantially the same effect in the practice of the courts of that State as an attachment on mesne process in jurisdictions where a creditor is authorized to employ such a process to create a lien upon the property of his debtor as a security to respond to his judgment. Neither the writ of sequestration nor the process of attachment is a proceeding in rem, as known and practiced in the admiralty, nor do they bear any analogy whatever to such a proceeding, as the suit in all such cases is a suit against the owner of the property and not against the property as an offending thing, as in case where the libel is in rem in the Admiralty Court to enforce a maritime lien in the property.

Due notice was given of the suit to the defendant in each case, and he appeared and made defence. Pending the suits the schooner, which had previously been seized by the sheriff under the writ or writs of sequestration, was released on motion of the defendant in those suits and was delivered into his possession, he, the defendant, giving a bond to the sheriff, with surety conditioned to the effect that he would not send the property out of the jurisdiction of the court nor make any improper use of it, and that he would faithfully present the same in case such should be the decree of the court, or that he would satisfy such judgment as should be recovered in the suit.

Judgment was recovered by the plaintiff in each case against the owner of the schooner, and executions were issued on the respective judgments, and the same were placed in the hands of the sheriff. Unable to find any property of the debtor or to make the money the sheriff returned the execution unsatisfied, and the property bonded was duly demanded both of the principal obligor and of the present plaintiff in error, who was the surety in each of the forthcoming bonds.

Given, as the bonds were, on the release of the schooner, they became the substitute for the property, and the obligors refusing to return the same or to satisfy the judgments, the respective judgment creditors instituted suits against the surety in those bonds. Service having been duly made, the defendant appeared and filed an exception to the jurisdiction of the court in each case, upon the ground that the cause of action was a matter exclusively cognizable in the District Courts of the United States, but the court overruled the exception and gave judgment for the plaintiff, whereupon the defendant sued out a writ of error in each case and removed the same into this court.

Briefly stated, the defence in the court below was that the action was founded on a bond given for the sale of the schooner seized under admiralty process in a proceeding in rem, over which the State court had no jurisdiction ratione materiae, 'and that the bond was taken coram non judice and is void.' Enough has already been remarked to show that the theory of fact assumed in the exception is not correct, as the respective suits instituted by the mariners were suits in personam against the owner of the schooner and not suits in rem against the vessel, as assumed in the exception. Were the fact as supposed, the conclusion assumed would follow, as it is well-settled law that common law remedies are not appropriate nor competent to enforce a maritime lien by a proceeding in rem, and consequently that the jurisdiction conferred upon the District Courts, so far as respects that mode of proceeding, is exclusive.

State legislatures have no authority to create a maritime lien nor can they confer any jurisdiction upon a State court to enforce such a lien by a suit or proceeding in rem, as practiced in the admiralty courts, but whenever a maritime lien arises the injured party may pursue his remedy by a suit in personam or by a proceeding in rem at his election. Such a party may proceed in rem in the admiralty, and if he elects to pursue his remedy in that mode he cannot proceed in any other form, as the jurisdiction of the admiralty courts is exclusive in respect to that mode of proceeding, but such a party is not restricted to that mode of proceeding, even in the Admiralty Court, as he may waive his lien and proceed in personam against the owner or master of the vessel in the same jurisdiction, nor is he compelled to proceed in the admiralty at all, as he may resort to his common law remedy in the State courts, or in the Circuit Court, if he and his debtor are citizens of different States.

Suitors, by virtue of the saving clause in the ninth section of the Judiciary Act conferring jurisdiction in admiralty upon the District Courts, have the right of a common law remedy in all cases 'where the common law is competent to give it,' and the common law is as competent as the admiralty to give a remedy in all cases where the suit is in personam against the owner of the property.

Attempts have been made to show that the opinion of the court in the case of The Moses Taylor, and the opinion of the court in the case of The Hine v. Trevor, are inconsistent with the views here expressed, that the court in those cases do not admit that a party in such a case can ever have a remedy in a State court, but it is clear that every such suggestion is without foundation, as plainly appears from the brief explanations given in each case by the justice who delivered the opinion of the court. Express reference is made in each of those cases to the clause in the ninth section of the Judiciary Act which gives to suitors the right of a common law remedy where the common law is competent to give it, and there is nothing in either opinion, when the language employed is properly applied to the subject-matter then under consideration, in the slightest degree inconsistent with the more elaborate exposition of the clause subsequently given in the opinion of the court in the case of The Belfast, in which all the members of the court as then constituted concurred. Those explanations are a part of the respective opinions, and they expressly recognize the right of the suitor to his common law action and remedy by attachment as provided in the saving clause of the ninth section of the Judiciary Act.

Common law remedies are not competent to enforce a maritime lien by a proceeding in rem, and consequently the original jurisdiction to enforce such a lien by that mode of proceeding is exclusive in the District Courts, which is precisely what was decided in each of the three cases to which reference is made. Authority, therefore, does not exist in a State court to hear and determine a suit in rem, found upon a maritime contract in which a maritime lien arises, for the purpose of enforcing such a lien. Jurisdiction in a such cases is exclusively in the District Courts, subject to appeal as provided in the acts of Congress, but such a lien does not arise in a contract for materials and supplies furnished to a vessel in her home port, and in respect to such contracts it is competent for the States to create such liens as their legislatures may deem just and expedient, not amounting to a regulation of commerce, and to enact reasonable rules and regulations prescribing the mode of their enforcement.

Even where a maritime lien arises the injured party, if he sees fit, may waive his lien and proceed by a libel in personam in the admiralty, or he may elect not to go into admiralty at all, and may resort to his common law remedy, as the plaintiffs in these cases did, in the subordinate court. They brought their suits in the State court against the owner of the schooner, as they had a right to do, and having obtained judgments against the defendant they might levy their executions upon any property belonging to him, not exempted from attachment and execution, which was situated in that jurisdiction.

Undoubtedly they might also resort to the bond given when the schooner was released, but they were not compelled to do so if the sheriff could find other property belonging to the debtor. By the return of the sheriff it appears that other property to satisfy the executions could not be found, and under those circumstances they brought these suits against the surety in those bonds, as they clearly had a right to do, whether the question is tested by the laws of Congress or the decisions of this court.

JUDGMENT AFFIRMED.

title: Leon v. Galceran/Opinion of the Court


text:
United States Code/Title 11/Chapter 5/Section 511

§ 511. Rate of interest on tax claims

 * (a) If any provision of this title requires the payment of interest on a tax claim or on an administrative expense tax, or the payment of interest to enable a creditor to receive the present value of the allowed amount of a tax claim, the rate of interest shall be the rate determined under applicable nonbankruptcy law.

 * (b) In the case of taxes paid under a confirmed plan under this title, the rate of interest shall be determined as of the calendar month in which the plan is confirmed.


text: Talk:Leon v. Galceran/Opinion of the Court