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Dobson v. Hartford Carpet Company Same/Opinion of the Court

These are three suits in equity brought in the circuit court of the United States for the Eastern district of Pennsylvania, against John Dobson and James Dobson, trading as John and James Dobson and as 'The Falls of Schuylkill Carpet Mills.' No. 1 is brought by the Hartford Carpet Company, for the infringement of design letters patent No. 11,074, granted March 18, 1879, to the plaintiff, as assignee of Winthrop L. Jacobs, for three and one-half years, for a design for carpets. No. 2 is brought by the Bigelow Carpet Company, for the infringement of design letters patent No. 10,778, granted August 13, 1878, to the plaintiff, as assignee of Hugh Christie, for three and one-half years, for a design for carpets. No. 3 is brought by the Bigelow Carpet Company, for the infringement of design letters patent No. 10,870, granted October 15, 1878, to the plaintiff, as assignee of Charles Magee, for three and one-half years, for a design for carpets.

No. 1 was commenced on the twenty-sixth of April, 1879, and Nos. 2 and 3 on the seventh of May, 1879. In No. 1 and No. 3 the defendants appeared by a solicitor, but did not plead, answer, or demur to the bill, and it was taken as confessed, in each suit, on the eleventh of July, 1879; and on the second of September, 1879, and interlocutory dec ee was entered in each suit, awarding a perpetual injunction, and an account of profits and damages. In No. 2, an answer was filed on the third of September, 1879, denying infringement and setting up want of novelty. A replication was filed, and on the fifth of November, 1879, a preliminary injunction was granted. Testimony was taken, and on April 23, 1880, on final hearing, a decree was made for a perpetual injunction, and an account of profits and damages. Some testimony on the accounting in Nos. 1 and 3 was taken in November, 1879, but most of the evidence before the master was taken in the three suits at the same time, in June, 1880.

In No. 1, the master filed a report on January 18, 1881, setting forth that the plaintiff, before the master, waived all claim for profits, and limited its claim to the damages it had suffered by the infringement; that the defendants had sold 20 pieces, of 50 yards each, of carpet containing the patented design; that the plaintiff claimed $13,400 damages, being 67 cents a yard, on 400 pieces of carpet, of 50 yards each, as being the decrease of the plaintiff's sales caused by the infringement, estimating the cost to the plaintiff of making and selling the carpet at $1.08 per yard, and his selling price at $1.75 per yard; and that the master had rejected that claim, as founded on inadmissible evidence, and a further claim of $3,000 damages, for expenses caused to the plaintiff, by the infringement, in getting up other designs, and changing its looms to other carpets. The report was for six cents damages. The plaintiff excepted to the report because it did not find profits to have been made by the defendants, and did not report more than nominal damages. The court sustained the exceptions, and decreed to the plaintiff $737, being for 20 pieces of infringing carpet made and sold by the defendants, at 55 yards perpiece, or 1,100 yards, at 67 cents per yard, as the plaintiff's profit per yard on carpet of the patented design. The final decree was for $737 and costs, and a perpetual injunction. The defendants have appealed.

In No. 2, the master filed a report on January 18, 1881, setting forth that the plaintiff, before the master, waived all claim for profits, and limited its claim to the damages it had suffered by the infringement; that no testimony had been taken showing the amount of the defendants' sale of the infringing carpet; that the plaintiff claimed $11,250 damages, being 75 cents a yard, on 300 pieces of carpet, of 50 yards each, as being the decrease of the plaintiff's sales, caused by the infringement, estimating the cost to the plaintiff of making and selling the carpet at $1.10 per yard, and his selling price at $1.85 per yard; and that the master had rejected that claim as not sustained by the evidence, and also a further claim for expense caused to the plaintiff by the infringement, in getting up another design, and in resetting its looms to manufacture the same. The report was for six cents damages. The plaintiff excepted to the report for not finding more than nominal damages. The court sustained the exceptions, and decreed to the plaintiff $750, being for 20 pieces of infringing carpet made by the defendants, at 50 yards per piece, or 1,000 yards, at 75 cents per yard, as the plaintiff's profit per yard on carpet of the patented design. The final decree was for $750 and costs, and a perpetual injunction. The defendants have appealed.

In No. 3, the master filed a report on January 18, 1881, setting forth that the plaintiff, before the master, waived all claim for profits, and limited its claim to the damages it had incurred by the infringement; that the defendants had sold 31 pieces, amounting to 1,684 1/4 yards, of carpet containing the patented design; that the plaintiff claimed $3,750 damages, being 75 cents a yard on 5,000 yards of carpet, as being the decrease of the plaintiff's sales, caused by the infringement, estimating the plaintiff's profit on making and selling the carpet at 75 cents per yard; and that the aster had rejected that claim as not sustained by the evidence, and also a further claim for the cost of getting up another design to replace the one infringed. The report was for six cents damages. The plaintiff excepted to the report, because it did not find profits to have been made by the defendants, and did not report more than nominal damages. The court sustained the exceptions, and decreed to the plaintiff $1,312.50, being for 35 pieces of infringing carpet made and sold by the defendants, at 50 yards per piece, or 1,750 yards, at 75 cents per yard, as the plaintiff's profit per yard on carpet of the patented design. The final decree was for $1,312.50 and costs, and a perpetual injunction. The defendants have appealed.

The circuit court proceeded on the ground, as stated in its decision, (10 Fed. Rep. 385,) that it was to be presumed that the defendants' carpets displaced in the market an equal quantity of the plaintiffs' carpets; and that the profits which the plaintiffs would have made on that quantity of carpets was the measure of their damages. It rejected the claims for losses for any greater decline in the plaintiffs' sales, and on looms, as 'too remotely connected with the defendants' acts as their supposed cause,' and 'too speculative in their character,' to be allowed.

Leaving out of view all question as to the presumption that the plaintiffs would have made and sold, in addition to the carpets of the patented designs which they did make and sell, the infringing carpets which the defendants made and sold, which are alleged to have been of poorer quality and cheaper in price, it is plain that the price per yard allowed as damages was the entire profit to the plaintiffs, per yard, in the manufacture and sale of carpets of the patented designs, and not merely the value which the designs contributed to the carpets. There was no evidence as to that value.

It is provided by section 4921 of the Revised Statutes, that, in a suit in equity for the infringement of a patent, the plaintiff may, on a decree in his favor, recover the damages he has sustained, in addition to the profits to be accounted for by the defendant, such damages to be assessed by the court, or under its direction, and with the same power to increase the damages, in the discretion of the court, as in the case of verdicts; and the damages intended are 'the actual damages sustained,' in the language of section 4919. Root v. Railway co. 105 U.S. 189, 212. By section 4933 all these provisions apply to patents for designs.

This court has, in a series of decisions, laid down rules as to what are to be regarded as 'profits to be accounted for by the defendant,' and what as 'actual damages,' in suits for the infringement of patents; and no rule has been sanctioned which will allow, in the case of a patent for a design for ornamental figures created in the weaving of a carpet, or imprinted on it, the entire profit from the manufacture and sale of the carpet, as profits or damages, including all the profits from carding, spinning, dyeing, and weaving, thus regarding the entire profits as due to the figure or pattern, unless it is shown, by reliable evidence, that the entire profit is due to the figure of pattern. It is matter of common knowledge, that there is an infinite variety of patterns in carpets, and that, between two carpets, of equal cost to make, and equal merit as to durability of fabric and fastness of color, each with a pattern pleasing to the taste, one having a design free to be used, and the other a design protected by a patent, the latter may or may not command in the market a price larger than the former. If it does, then the increased price may fairly be attributed to the design; and there is a solid basis of evidence for profits or damages. But, short of this, under the rules established by this court, there is no such basis. The same principle is applicable as in patents for inventions. The burden is upon the plaintiff, and if he fails to give the necessary evidence, but resorts instead to inference and conjecture and speculation, he must fail for want of proof. There is another suggestion, of great force The carpet with the infringing design may be made on an infringing loom, and various infringing processes or mechanisms for carding, spinning, or dyeing may be used in making it, and, if the entire profit in making and selling it is necessarily to be attributed to the pattern, so it may as well, on principle, be attributed to each of the other infringements, and a defendant might be called on to respond many times over for the same amount. There is but one safe rule: to require the actual damages or profits to be established by trustworthy legal proof.

It is not necessary to cite at length from the cases decided by this court on the subject. It is sufficient to refer to them, as follows: Livingston v. woodworth, 15 How. 546; Seymour v. McCormick, 16 How. 480; Mayor v. Ransom, 23 How. 487; Mowry v. Whitney, 14 Wall. 620; Philp v. Nock, 17 Wall. 460; Littlefield v. Perry, 21 Wall. 205; Birdsall v. Coolidge, 93 U.S. 64; Cawood Patent, 94 U.S. 695; Blake v. Robertson, Id. 728; Garretson v. Clark, 111 U.S. 120; S.C.. 4 SUP. CT. REP. 291; Black v. Thorne, 111 U.S. 122; S.C.. 4 SUP. CT. REP. 326. The true rule, which applies also to a patent for a design, was formulated thus, by this court, in Garretson v. Clark: 'The patentee must, in every case, give evidence tending to separate or apportion the defendant's profits and the patentee's damages between the patented feature and the unpatented features, and such evidence must be reliable and tangivle, and not conjectural or speculative; or he must show, by equally reliable and satisfactory evidence, that the profits and damages are to be calculated on the whole machine, for the reason that the entire value of the whole machine, as a marketable article, is properly and legally attributable to the patented feature.' The case of Manufacturing Co. v. Cowing, 105 U.S. 253, was a case falling within the last clause of the rule thus stated, and was an exceptional case, as was stated by the chief justice, in the opinion. The general rule was recognized in that case, and the exception was made, in regard to the oil-well gas pump there involved, because there was only a limited and local demand for it, which could not be, and was not, supplied by any other pump.

The rule in question is even more applicable to a patent for a design than to one for mechanism. A design or pattern in ornamentation or shape appeals only to the taste through the eye, and is often a matter of evanescent caprice. The article which embodies it is not necessarily or generally any more serviceable or durable than an article for the same use having a different design or pattern. Approval of the particular design or pattern may very well be one motive for purchasing the article containing it, but the article must have intrinsic merits of quality and structure, to obtain a purchaser, aside from the pattern or design; and to attribute, in law, the entire profit to the pattern, to the exclusion of the other merits, unless it is shown, by evidence, as a fact, that the profit ought to be so attributed, not only violates the statutory rules of 'actual damages' and of 'profits to be accounted for,' but confounds all distinctions between cause and effect.

The decrees must, therefore, all of them, be reversed, as to the damages awarded.

As to No. 1, though the bill was taken as confessed, the defendants take the point that the patent is void on its face, because it has 19 claims. It has a claim for an entire pattern, and then a separate claim for each of 18 component ponent parts making up the whole. The bill alleges infringement by the making and selling of the 'invention,' and of carpets containing the 'invention.' Even if the defendants can raise this point after a decree pro confe so, (see Thomson v. Wooster, 114 U.S. --, S. ante, 788,) the patent must be held valid, at least, for the purposes of this case.

In No. 2, the question of proof of making and selling by the defendants before suit brought is raised. But we think, on the pleadings and all the proofs, including the defendants' letter of April 13, 1880, the case is made out. The point is also taken, that this patent is void because it has a claim for the entire pattern and three claims for each of three constituent parts of it. No such point is taken in the answer, which speaks of the patent as one for a single design. If the patent-office, in view of the question of fees, and for other reasons, grants a patent for an entire design, with a claim for that, and a claim for each one of various constituent members of it, as a separate design, we see no objection to it, leaving the novelty of the whole and of each part, and the validity of the patent, open to contestation. The mere joinder of such claims in one grant does not per se invalidate the patent or any particular claim, at the objection of a defendant.

In No. 3, objection is taken to the patent because it claims 'the design for a carpet, substantially as shown.' As the bill is the same in form as that in No. 1, and was taken pro confesso, the patent is valid, at least for the purposes of this case. Aside from this, we see no good objection to the form of the claim. It refers to the description as well as the drawing, in using the word 'shown.' The objection is also made, as to No. 3, that the patent is for an aggregation of old ornaments, and embodies no invention. This objection is concluded, for this case, by the language of the bill and the decree pro confesso.

The final decrees in all of the suits are reversed, and the cases are remanded to the circuit court, with directions to disallow the award of damages in each suit, and to award six cents damages in each, and to allow to the defendants a recovery in each case for their costs after interlocutory decree, and to the plaintiff in each case a recovery for its costs to and including interlocutory decree.


text: Talk:Dobson v. Hartford Carpet Company Same/Opinion of the Court

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Western Electric Manufacturing Company v. Ansonia Brass Copper Company

The case was a suit in equity, brought by the appellant, the Western Electric Manufacturing Company, against the Ansonia Brass & Copper Company to restrain the infringement of two reissued letters patent, numbered 6,954 and 6,955, respectively, granted to the appellant as the assignee of Joseph Olmstead, both dated February 29, 1874, for improvements in insulating telegraph wires. The reissues are divisions of original letters patent No. 129, 858, dated July 23, 1872. The descriptive specifications of the two patents wereidentical. They differed only in the claims, the first being for a process, and the second for the product of the process.

The specification of both patents, after stating that Olmstead had invented a new and useful improvement in insulating telegraph wires, proceeded as follows: 'The method of insulating now in use consists in braiding over the wires a fibrous covering, after which it is dipped in wax, for the purpose of filling and closing its pores, and, after a subsequent scraping to remove the surplus wax, it is ready for use. This method is, however, objectionable, inasmuch as it leaves the covering in a very rough and soft condition, and fails to secure perfect insulation. In my improved method, after the wire has received its coating, I dip it in paraffine or wax, after which, instead of scraping off the surplus coating, I pass the whole through a suitable machine, which compresses the covering and forces the paraffine or wax into the pores and secures perfect insulation. By so compressing the covering the paraffine or wax is forced into the pores, and the surface becomes and appears polished. Wire insulated in this manner is entirely impervious to the atmosphere, of greater durability, and less cumbersome than any heretofore made.'

The claim of the process patent No. 6,954 was as follows: 'The method of insulating telegraph wire by first filling the pores of the covering, and subsequently compressing this covering, and thereby polishing its surface, substantially as described. The claim of the product patent No. 6,955 was 'an insulated telegraph wire, the covering of which has its pores filled and its surface polished, substantially as described.'

The defendant denied in its answer that Olmstead was the first and original inventor of the improvement described in the patents, or of any substantial or material part thereof, or that the same was patentable or the subjectmatter of invention, and that the alleged invention had been previously patented by letters patent of Great Britain, granted to Thomas Earl of Dundonald, dated July 22, 1851, and by letters patent of Great Britain, granted to Felix M. Baudouin, dated April 3, 1857. The defendant also denied infringement. The circuit court, on final hearing, dismissed the bill, and the plaintiff appealed.

''Geo. P. Barton'', for appellant.

''Wm. B. Wooster'', for appellee.

WOODS, J.


text: Talk:Western Electric Manufacturing Company v. Ansonia Brass Copper Company


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Western Electric Manufacturing Company v. Ansonia Brass Copper Company/Opinion of the Court

It is clear that the two patents must stand or fall together If the patent for the process is invalid, so must be the patent for the product. What we have to say will refer to the process patent. The alleged invention described in the patent is not for insulating telegraph wires, for that art long antedated the original patent. The specification disclaims as a part of the invention the braiding of a fibrous covering over the wire, and then dipping it in wax for the purpose of filling and closing the pores, and the subsequent scraping of the surplus wax from the wire. The patent does not cover the material in which the wire, after it has received its fibrous coating, is dipped, which may be either paraffine, wax, or bitumen, or any other suitable material. The three substances mentioned had long been used for that purpose. Nor does the patent specify or cover any device by which the process is to be carried on. Any suitable machine may be used. The process described by the patent consists, therefore, simply in this: After the wire has received its fibrous coating, and been dipped in paraffine, wax, or other suitable substance, the compressing and forcing of the paraffine, wax, or other substance, without scraping off any part of it, into the pores of the fibrous material by some suitable means. We think this process was not new. It was substantially anticipated both by the process described in the patent of Dundonald and in that of Baudouin, the first dated January 22, 1852, and the other April 3, 1857. Dundonald describes his process thus: 'I also employ a bituminous material to cover, and thus insulate, the conducting wires of electric telegraphs, which are intended to be placed under ground. For this purpose I employ the said bitumen, either simple or compounded, of a flexible description, and pass the wire through it when it is in a melted state, then causing the wire to pass through some die or orifice, which will deprive it of all the superfluous bitumen. * *  * The incasement of this wire with bitumen may also be affected by covering it with a filamentous material, which has been previously saturated with melted bitumen, and then passing the wire so covered through a heated die or orifice, so as to melt or soften the bitumen upon the filamentous material, and press the whole of the coating against the wire in such a way as to cause it to form one compact continuous covering of the wire, and thus insure its insulation.'

The patent of Baudouin describes his process as follows: 'My invention relates to the preparation of conductors of electricity for electric telegraphs, being wires insulated to prevent the loss or deterioration of the electric currents used for that purpose, and also in the machinery for the preparation of manufacture of such conductors. I coat the wires with bituminous or such like fatty matters that are not liable to become hard or crack, but, on the contrary, are constantly acted on by the temperature of the atmosphere. Coatings of this material in themselves are insufficient to maintain the proper protection and insulation for telegraph conductors, but when c mbined with other materials, such as paper, woven fabrics of cotton, silk, wool, or hemp, in a particular manner, are well adapted for the purpose. I prefer to use three ribbons and bobbins for this purpose, the first covering of the wire being enveloped by the second in such manner that the helical junction of the first ribbon is covered by the second, and the second by the third. The wire is passed through a bath of hot bitumen, and has the superfluous matter removed by passing through suitable dies or parts to scrape and smooth its surface, and render it of uniform thickness. The first and second ribbons are also passed through bituminous or other suitable matter to render them more impervious to electricity. The coated and lapped wire is passed through suitable dies to remove superfluous matter, to smooth down the lapping of the ribbons, and to compress and cause their proper adhesion. The coated and lapped wire passes through dies or smoothing holes both in entering and leaving the rotating frame. These dies or smoothers have a rotary motion, the better to enable them to wipe and smooth the coated wire.'

It is plain that these patents anticipate the process set out in the specification of the Olmstead process patent. They all three describe the compressing of the wax, paraffine, or bitumen coating of a wire covered with the fibrous material, so as to attain the same result, namely, the insulation of the wire. The Olmstead patent, therefore, covers an old process applied to the same subject, with no change in the manner of applying it, and with no result substantially distinct in its nature. It cannot, therefore, be a valid patent. Pennsylvania R. Co. v. Locomotive Truck Co. 110 U.S. 490; S.C.. 4 SUP. CT. REP. 220; Vinton v. Hamilton, 104 U.S. 485.

The fact that in the process described in the Olmstead patent the surplus wax or paraffine is not scraped off, but all that adheres to the wire is compressed against it and forms part of the covering, is relied on to distinguish that process from those of Dundonald and Baudouin. But the Dundonald process does not differ in this respect from that of Olmstead, for in the Dundonald process the whole of the coating is pressed against the wire, and is left to form the covering; and as to the Baudouin process, the difference consists merely in the use of a greater quantity of wax or paraffine to form the coating. This may be an improvement upon the Baudouin process, but it does not involve invention. So far as the present case is concerned, another answer to this contention of the appellant is that, in this respect, the defendant follows the Baudouin and not the Olmstead process, by scraping off the superfluous coating material.

It was insisted in argument, by appellant's counsel, that one of the features of the process described in the Olmstead patent was the allowing of the wax or paraffine covering to cool before compressing it upon the wire, and as this was not done in the Dundonald or Baudouin process, they did not anticipate the Olmstead process. But neither the specification nor claim of the Olmstead patent mentions, as a part of the process, the cooling of the wax or paraffine coating before compressing it upon the wire. The appellant's counsel, however, contends that it must be considered a part of the process, because the polished appearance of the surface of the covering described in the specification is the result of allowing the paraffine or wax to cool before compressing it upon the wire. But, clearly, a patentee cannot claim the benefit of an element of his invention thus vaguely and indefinitely hinted at. The law in force when the patent of Olmstead was issued-act July 8, 1870, (Rev. St. § 4888,)-requires that 'before any inventor shall receive a patent for his invention or discovery he shall file in the patent-office a written description of the same, and of the manner and process of making, constructing, compounding, and using it, in such full, clear, concise, and xact terms, as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, or use the same; and he shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.' It is clear that if the patentee intended to include the cooling of the wax or paraffine before compressing it upon the wire, he has failed to describe in his specification that element of his invention, as required by the statute. Instead of describing the process he mentions a quality of the product, and asks the court to infer the process from that quality. Such a vague and inverted method of description is not a compliance with the statute. That part of the alleged invention is not even referred to in the most distant manner in the claim. It has been held by this court that 'the scope of letters patent should be limited to the invention covered by the claim; and, though the claim may be illustrated, it cannot be enlarged by the language in other parts of the specification.' Railroad Co. v. Mellon, 104 U.S. 112. The element of the process under consideration cannot, therefore, be held to be covered by the patent. The contention that the patentee intended to include it in his process is evidently an after-thought.

The result of the views expressed is that both the patents sued on are void.

Decree affirmed.


text: Talk:Western Electric Manufacturing Company v. Ansonia Brass Copper Company/Opinion of the Court


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Edmonds v. Baltimore P R

A. G. Riddle, for appellants.

Enoch Totten, for appellee.

MILLER, J.

title: Edmonds v. Baltimore P R


text: Talk:Edmonds v. Baltimore P R

title: Talk:Edmonds v. Baltimore P R


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Edmonds v. Baltimore P R/Opinion of the Court

This is an appeal from the supreme court of the District of Columbia. The railroad company has constructed its road from Baltimore, through the District of Columbia and through the city of Washington, to the Potomac river at Long Bridge, on which it crosses that river to the Virginia side. It has done this by virtue of several acts of congress granting the necessary authority to do so. At the Washington end of the bridge it has purchased and now owns one of the squares of the city and part of another, numbered, in the division of the city into streets, squares, and lots, squares 233, and 267. These squares are divided by Fourteenth street, running north and south, and square 267, on its south side, abuts on Maryland avenue, one of the streets of the city. At the junction of Maryland avenue, whose course is nearly east and west, and Fourteenth street, there is a considerable space of ground made by Water street, which follows the bank of the river, and the other two streets, which is a public highway made by the union of all three streets at that point. A map or diagram found in the record, and which the reporter will copy, is necessary to a clear understanding of the controversy.

The railroad company alleges that its increased traffic requires, in the city of Washington, additional accommodations for receiving, storing, and transferring freight, and that it has purchased the two squares mentioned for that reason, and that it intends to build a freight depot on square 233, as being at once convenient for the company and more out of the way of the travel, current business, and residences of the citizens than any point within reasonable distance of the line of the road. As their road is at present located lawfully on Maryland avenue, along which it touches the city end of the bridge, this allegation is probably true.

In order, however, to reach square 233 with its trains, they must depart from Maryland avenue and cross square 267 and Fourteenth street, which lies between the two squares, or they must make a curve from the avenue around the south end of square 267, and reach square 233 by the use of the public highway made by the junction of Maryland avenue, Water street, and Fourteenth street, and, in so doing, depart from Maryland avenue. The company gave notice, as required by law, to appellants, who, as commissioners of the District of Columbia, are charged with the care and protection of the streets and other highways of the city, that it intended to construct a lateral track, which, leaving its main track on Maryland avenue at a point near its intersection with Thirteenth street, should cross square 267 from its east to its west side, and then crossing Fourteenth street, would reach its projected depot on square 233. The commissioners refused consent to this, and, fearing it would be attempted without such consent, they guarded the way across the street by police force for some time. In this condition of affairs, the railroad company filed it bill in chancery in the supreme court of the District of Columbia, praying an injunction against the commissioners, to prevent them from interfering with the exercise of the right which the company claimed of laying its track across Fourteenth street, and that court granted the injunction as prayed.

The appeal of the commissioners from this decree brings the matter in issue before us for review. Neither the pleadings in the case, nor the relief sought by the bill, nor the decree of the court, bring into question the right of the company to purchase squares 233 and 267, nor the right to erect on either of these a warehouse for the storage of freight. Nor does the question arise of their right to locate at that place such a depot as their business requires, nor to use it as such, if they have the right of access to it by using the streets and highways of the city for that purpose. This court does not, therefore, consider those questions, because the only point raised by the record is the right of the company to lay in or across the streets of the city their railroad track, and use it as a means of transit for its locomotives and cars, without any express authorization by act of congress, or the consent of any authority representing the city of Washington or the District of Columbia.

The assertion of the existence of such a right is, to say the least, somewhat novel. It is not known to any member of this court that any railroad company, whether its cars are propelled by steam or horse power, has ever claimed to use the streets of an incorporated city or any part of them, without express authority from some legislative body, or the authorities of the city government. It would be a strange grant of power which, authorizing a railroad company to enter or even pass through a city, should leave to the company the selection, not only of its route into or through the city, but even the streets and highways over which its tracks should be laid, subject only to its sense of its own convenience and that of the people of the city. Nor does the decision of a court of justice, that the necessities of the company demand the use of these streets, and that the locality of the depot to which the track leads is selected with a due regard to the interests of the whole city, make this claim of power any the less remarkable. No judicial decision is cited in favor of such propositions.

The streets of Washington are largely used by street railroad companies whose tracks occupy their surface. There are some four or five of these companies, and their cars are propelled by horse-power and not by steam. They are not only a great convenience to the citizens, but they have become almost a public necessity. But it is not believed that a foot of all these tracks over all these streets exists otherwise than by virtue of an act of congress directing specifically and minutely where this shall be done. And no power exists in one of these corporations to lay a track, however short, anywhere else. The railroad company now asserting this right runs its cars from the east side of the city to the west, a distance of two miles or more, through a densely populated part of the city, over a track, the location of every foot of which is prescribed with minuteness by acts of congress. And its principal passenger depot, located several hundred yards from the main line of its road through the city, makes this deflection from that line solely by virtue of an express act of congress, passed to enable the company to do so.

It is with these well-known facts before us, showing the care with which congress has repeatedly exercised the power of granting, refusing, and regulating the use of the streets of Washington for railroads, that we approach the examination of the statute or statutes which are supposed to grant the enlarged power claimed by the Baltimore & Potomac Company in this instance. The first and most important of these is the act of congress of February 5, 1867, (14 St. 389.) After reciting that it is rep esented that the Baltimore & Potomac Railroad Company, incorporated by an act of the general assembly of Maryland, passed May 6, 1853, is desirous to construct a lateral branch from its road to the District of Columbia, it is enacted that 'said company shall be, and they are hereby, authorized to extend into and within the District of Columbia, a lateral branch, such as the said company shall construct or cause to be constructed, in a direction to wards the said district, in connection with the railroad which they are about to locate and construct from the city of Baltimore to the Potomac river, in pursuance of their said act of incorporation; and the said Baltimore & Potomac Railroad Company are hereby authorized to exercise the same powers, rights, and privileges, and shall be subject to the same restrictions in the extension and construction of the said lateral railroad into and within the said district as they may exercise, or are subject to, under and by intent of their said charter or act of incorporation, in the extension and construction of any railroad within the state of Maryland, and shall be entitled to the same rights, compensations, benefits, and immunities, in the use of the said road, and in regard thereto, as are provided in their said charter, except the right to construct any lateral road or roads within the said district from the said lateral branch or road hereby authorized, it being expressly understood that the said Baltimore & Potomac Railroad Company shall have power only to construct from the said Baltimore & Potomac Railroad one lateral road within the said district to some point or terminus within the city and county of Washington, to be determined in the manner hereinafter mentioned.'

The third section of this act, after describing the care with which the company shall construct the road across any street or other way, adds: 'But the said company, in passing into the district aforesaid, and in constructing the said road within the same, shall enter the city of Washington at such place, and shall pass along such public street or alley to such point or terminus within said city, as may be allowed by congress, upon presentation of survey and map of proposed location of said road; provided that the level of said location within the said city shall conform to the present graduation of the streets, unless congress shall authorize a different level.' This provision of the original act, under which the Baltimore & Potomac Railroad enters this city, has never been repealed or modified, as far as we are aware, and it fully asserts the purpose of congress to retain in its own hands the right to the use of the streets of the city in regard to this company and its road, as it has in regard to all others.

By another act, passed March 18, 1869, (16 St. 1,) entitled as supplemen-tary to the one above cited, it was declared 'that said company might enter the city of Washington with their railroad, and construct the same within the limits of said city on and by whichever one of the two routes herein designated the said company may elect and determine; that is to say: First, beginning at the intersection of Boundary street North Carolina avenue; thence along said North Carolina avenue to South D street; thence along South D street, westwardly, to Virginia avenue; thence along Virginia avenue, north-westwardly, to the intersection of South C street and West Ninth street; or, second, beginning at some point on the northern shore of the eastern branch of the Potomac river, between South L and South M streets; thence westwardly between said streets to the intersection of Virginia avenue with South L and East Twelfth streets; thence along said Virginia avenue, north-westwardly, to South K street; thence along said South K street, westwardly, to South Fourth street; thence, by a line curving to the right, to the north bank of the canal; and thence along the said bank of the canal, north-westwardly, to Virginia avenue; thence along Vi ginia avenue, north-west-wardly, to the intersection of South C and West Ninth streets.' Whether this was in accordance with a map, or maps, furnished by the company we are not informed; probably it was. But this is wholly immaterial, as this supplementary statue was clearly made to allow the use of these streets as provided in section 3 of the original act. By another act, approved March 25, 1870, congress authorized the company to make some changes in the line of its road between East Fourth Street and the terminus at the junction of C street south and Ninth Street west, which change, however, is described with the same particularity as the routes above described, and by the same act the time for the completion of the road was extended.

The next act of congress, approved June 21, 1870, (16 St. 61,) also entitled as amendatory of the act of July 5, 1867, authorizes the company to extend its road from the terminus at Ninth street, 'by way of Maryland avenue, conforming to its grade, to the viaduct over the Potomac river at the city of Washington, known as the 'Long Bridge,' and extend their tracks over said bridge and connect with any railroads constructed, or that may hereafter he constructed, in the state of Virginia.' The act then delivers over Long Bridge to the company for its use as a railroad bridge, with conditions requiring it to be kept in good repair, and open to free use as a public highway for all the people. It is by virtue alone of the words of this statute, which we have cited in italics, that the road of the company is anywhere near the bridge, or near the locus in quo of the present controversy. It requires a larger measure of liberality in construing grants of the sovereign, and especially grants for the use of the streets of a city for a railroad, than we are accustomed to, to discover in this any authority to depart from Maryland avenue on its way from Ninth street to the Long Bridge. The company having its road well under way needed a passenger depot for its business, a need much more important than its present need of an additional freight depot. It did not, however, attempt to establish one under its general powers, but made application to congress, which authorized its construction, and in doing so described its location with great precision, and the streets along which the track must go, in departing from the right of way already granted.

This act of March 3, 1871, required the assent of the municipal authorities of the city of Washington for the erection of the depot, and that assent was given by a joint resolution of the board of aldermen and common council on March 9, 1871. And so necessary did the company deem the consent of congress to this or any other occupation of the streets or public property of the city, that it procured the passage of the act of May 21, 1872, ratifying the action of the city authorities in the matter, and setting out with greater detail the direction of the lateral track to the passenger depot, and the streets over which it should go. The title to the streets of Washington is in the United States, and not in the city, or in the owners of the adjacent lots. Potomac S. B. Co. v. Upper Potomac Co. 109 U.S. 652; S.C.. 3 SUP. CT. REP. 445. It is, therefore, eminently proper that the right to use them for any other than the ordinary use of streets should proceed from congress; and when we consider the express reservation of the power to congress to allow this use in the original grant to the company, found in the third section of that act, and the detail and precision with which every foot of the track or tracks of the road has been prescribed by congress, and every change which expediency required has been previously authorized by congress, we can see no place for the assertion of any right in the company to make other tracks, or changes in location of those now existing, without an act giving the consent of that body.

In the face of these statutes it is hardly necessary t look into the language of the charter of the company by the legislature of Maryland to see if the powers thus conferred, and which are said to be adopted by the act of congress, give this extraordinary power. It is sufficient to say that we do not find in the Maryland charter of that company any power to use the streets of a city as an incident of its right to run to or from such city. That no such right is granted may be fairly inferred from the fact that the track of this road runs for two miles under the city of Baltimore in a tunnel built for that purpose, which must have delayed the completion of the road two or three years, and cost a large sum of money. The company certainly would not have used this expensive underground roadway if anything in its charter authorized it to use the surface streets of the city. And if the construction which counsel place upon that charter is sound, it is very certain that congress did not intend extending that power of the company into the District of Columbia, and part with its own control of the streets and highways of Washington City, for such a power is in conflict with the express language of the act, and with the constant practice under it.

We are referred by counsel to the Revised Statutes of the District of Columbia, chapter 18, concerning corporations. Clause 7 of that chapter provides for the voluntary association of individuals into corporations for building railroads in the district. It grants these corporations, when formed in compliance with the rules there prescribed, all the usual powers of such companies organized under state statutes, and all that are necessary to the operation of a railroad, and the powers thus conferred are in the main very liberal. There are two reasons, however, why these provisions can give no aid to the Baltimore & Potomac Company: (1) That corporation is organized under a special statute of the state of Maryland, and is a corporation of that state. The act of congress of February 5, 1867, merely authorized that Maryland corporation to extend its road into the District of Columbia, and in defining the powers which the company should exercise in the district it referred to and adopted in the main the act of the state of Maryland granting the charter. This was three years before the general incorporation law was enacted by congress, and the company has never organized under that law, or professed to be governed by it, or asserted itself to be a corporation of the District of Columbia. Whether it could do this or not it is unnecessary to decide; but it is very plain that the power conferred by that act was designed only for corporations organized under it, and are not conferred on corporations created by states of the Union governed by the laws of those states. (2) But if this were not so, and if this company could exercise all the powers which that statute grants to corporations organized under it, the statute itself shows, as all the legislation by congress has shown, both before and since, that that body never intended to part with the right to designate the route of a railroad through the city, and on what streets its track should be located, and which streets it should use. This is plain from one of the closing sections of the chapter of the Revised Statutes on that subject, namely: 'Sec. 673. No railroad shall be built under the provisions of this chapter until the route and termini of such road have been approved by congress.' This section of the general law for the voluntary organization of corporations for building railroads in the District of Columbia expresses the same idea and the same purpose that section 3 of the act authorizing the Baltimore & Potomac Company to enter the district does, namely, to retain in the hands of congress the absolute control of the use of the streets of the city by any railroad company whatever.

We are of opinion that when this company wishes to depart in any direction from the line of its present track, as prescribed or it by acts of congress, it must obtain permission to do so from that body; and that congress, and not the court nor the company, is the judge of the expediency or the necessity of such change, and of the manner in which the public good requires it to be made and the safeguards which should accompany it.

The decree of the supreme court of the District of Columbia is reversed, and the case remanded, with directions to dismiss the bill.


text: Talk:Edmonds v. Baltimore P R/Opinion of the Court


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Pacific National Bank of Boston v. Mixter

Joshua D. Ball, for motion.

A. A. Ranney, in opposition.

WAITE, C. J.


text: Talk:Pacific National Bank of Boston v. Mixter


text:
Pacific National Bank of Boston v. Mixter/Opinion of the Court

This motion is denied. Under section 1001 of the Revised Statutes, no bond for the prosecution of the suit, or to answer in damages or costs, is required on writs of error or appeals issuing from or brought to this court by direction of the comptroller of the currency in suits by or against insolvent national banks, or the receivers thereof. This is such a case. There is abundant evidence in the record that the direction from the comptroller to the receiver was to take out a writ of error in this case, although, by mistake in one of the papers, Henry Mixter was named as the plaintiff instead of George Mixter.


text: Talk:Pacific National Bank of Boston v. Mixter/Opinion of the Court


text:
Cavender v. Cavender

Robert S.C.avender, the appellee, was the plaintiff in the circuit court. He stated his case in the bill of complaint substantially as follows: John Cavender, deceased, by his last will and testament, dated May 6, 1858, and probated in the probate court of the city-then county-of St. Louis, and state of Missouri, February 4, 1862, made and constituted the defendant, John S.C.avender, executor of his estate, and, after payment of debts, as therein mentioned, bequeathed one-half of the remainder of his estate to John S.C.avender. aforesaid, as trustee, to hold the same in trust for the use and benefit of the plaintiff during the term of his natural life, and by said will directed him to invest the same in real or personal securities, and to pay over the rents, profits, issues, and incomes thereof to the plaintiff semi-annually, at the end of every half year, during his life-time. The probate court, by its order and decree made on October 5, 1878, found in the hands of the defendant, as such executor, the sum of $17,169.49 belonging to the trust estate, and directed him to pay over the same to himself as trustee; and afterwards, on December 3, 1878, the defendant executed his bond as trustee, with sureties, in the penalty of $25,000, conditioned for the faithful execution of his trust. On April 22, 1879, John S.C.avender, trustee, filed in the probate court his written receipt, whereby he acknowledged that he had received from John S.C.avender, executor, the sum of $17,169.49, and thereupon prayed for his discharge as executor of the said estate, which, on the same day, the court granted.

The bill then averred that if the said sum of $17,169.49 had thereafter been properly invested by the trustee, as by the terms of the will it became his duty to invest the same, it would have fairly yielded an annual income of 6 per cent., which was, by the terms of the will, payable semi-annually. It further alleged that, by the obligations assumed by John S.C.avender as trustee of the plaintiff under the will, it became his duty to set apart and invest in safe and permanent securities said trust fund so acknowledged to have been received by him, in order that it might remain intact, and yield a regular and certain income to the plaintiff from year to year. But the bill averred that Cavender had been guilty of a gross breach of his trust; that he had never set apart or invested any sum whatever in securities of any description, or in property or assets of any sort, as a trust fund for the benefit of plaintiff, or deposited in bank or elsewhere any sum of money to the credit of the trust estate, but, on the contrary, had converted to his own use and dissipated the whole of the trust estate, and all the assets and money belonging thereto, except certain lands in the state of Illinois, and that the income for the first six months from the trust funds was due, had been demanded, and was unpaid at the commencement of the suit. The bill further averred atht there were large tracts of land in the state of Illinois belonging to the estate of John Cavender, the proceeds and income of which were, under his will, a part of the trust estate; that the profits of said lands and the proceeds of their sale would probably be large, which John S.C.avender would be likely to convert to his own use.

The prayer of the bill was that Cavender might be removed from his office of trustee, and a proper person appointed in his stead, to whom he might be ordered to pay over the said sum of $17,169.49, with the interest due thereon. A demurrer was filed to the bill and overruled by the court. Thereupon Cavender answered, admitting that 'John Cavender, deceased, by his last will and testament, dated and probated as specified in the bill, did constitute the defendant executor of his estate, and bequeathed one-half the residue of his estate, after the payment of debts, to the defendant as trustee, to hold said moiety in trust for the use and benefit of complainant during complainant's natural life, to be invested in real or personal securities, and the income thereof only to be paid over to the complainant semi-annually during his life-time;' but averring that by the terms of said will, after the lapse successively of the life-estate of complainant and Charlotte M., his wife, in the trust property aforesaid, such property would descend to defendant and his heirs, in fee-simple, forever, discharged of the trust aforesaid.

The answer also admitted 'that the probate court of the city of St. Louis, by its judgment of October 5, 1878, found to be due and ordered to be paid by this defendant, as executor, to this defendant, as trustee, the sum of $17,169.49, and that thereafter the defendant made and executed his bond as such trustee with good and sufficient sureties, whereby he bound himself to the state of Missouri, to the use of all persons beneficially interested, in the penal sum of twenty-five thousand dollars, and conditioned for the faithful performance by this defendant as such trustee of the trust created by the provisions of said will as aforesaid;' but denied 'that on the twenty-second day of April, 1879, as alleged in said bill, he filed as such trustee in said probate court his written receipt, whereby he acknowledged to have received from himself as executor the said sum of $17,169.49, and was thereafter, on April 30, 1879, granted his discharge as executor by said probate court,' and averred the fact to be that he had 'never received as trustee, at the date of said alleged receipt or at any other time, from himself as executor, aforesaid, or from any source, the sum of seventeen thousand one hundred and sixty-nine dollars and forty-nine cents, or any other sum whatsoever, on account of said trust estate,' and denied that any income had accrued in his hands from said trust estate to which the plaintiff was entitled, and admitted that no part of such imcome had ever been paid to the plaintiff.

The answer admitted that Cavender held the lands referred to in the bill, and that their proceeds and income should be set aside for the benefit of said trust estate, but denied that he would be likely to convert and absorb the same, and denied that he had mismanaged the trust estate. The plaintiff filed the general replication to the answer, and, upon the final hearing, besides the admissions of the answer, offered the following evidence:

First. A certified copy of the original receipt of the defendant, o file in the probate court of the city of St. Louis, which was in the words and figures following:

'IN THE PROBATE COURT, CITY OF ST. LOUIS.

'In the Matter of the Estate of John Cavender, Deceased.

'ST. LOUIS, April 22, 1879.

'I, John S.C.avender, trustee of Robert S.C.avender and others, under the last will and testament of John Cavender, deceased, acknowledge that I have received from John S.C.avender, executor of said deceased, the sum of seventeen thousand one hundred and sixty-nine and 40-100 dollars, ordered to be paid to me by said probate court. Entered of record in the records of said court on the fifth day of October, 1878.

'JOHN S.C.AVENDER, TRUSTEE.'

Second. A certified copy of a paper writing, on file in the same probate court, signed by W. G. Eliot, George Partridge, E. S. Rouse, and John S.C.avender, entitled In the Matter of the Estate of John Cavender, Deceased, and dated St. Louis, April 23, 1879, in which it was recited that John S.C.avender, executor of the last will of John Cavender, deceased, had, on October 5, 1878, been ordered by the said probate court to pay over to himself, as trustee of Robert S.C.avender, under the last will of John Cavender, the sum of $17,169.49, and after such order the said John S.C.avender, trustee, as principal, and the said Eliot, Partridge, and Rouse, as sureties, executed and filed their bond, dated December 3, 1878, in the penalty of $25,000, conditioned for the faithful execution of his trust by said trustee, and that said John S.C.avender had given to himself, as said executor, his receipt, dated April 22, 1879, for the sum of $17,169.49, and, on the strength of said receipt as a voucher, was about to apply to the said probate court for his discharge as such executor. The writing then proceeded as follows:

'Now we, William G. Eliot, George Partridge, and Edward S. Rouse, acknowledge, as such sureties, that said John S.C.avender has, in law, received, and is now bound, as such trustee, for said sum of seventeen thousand one hundred and sixty-nine and 49-100 dollars, as for cash actually received, and that the said bond is still in full force, and binding upon the undersigned, to all intents and purposes, in contemplation of law, touching the custody of said fund, as for cash actually received, and the execution of said trust concerning the same. And John S.C.avender, on his own part, as trustee and principal in said bond, admits the full and binding force of the above admission.'

Third. A Certified copy of the order of the probate court discharging John S.C.avender as executor of the estate of John Cavender, deceased, which was dated April 30, 1879, and was based on the ground that John S.C.avender had filed a receipt, signed by himself as trustee, acknowledging the receipt from himself, as executor, of the sum of $17,169.49, and was as follows: $17,169.49, and was as follows: 'ESTATE OF JOHN CAVENDER.

'Now comes John S.C.avender, executor, and files the receipt dated April 22, 1879, given by John S.C.avender, trustee of Robert S.C.avender and Caroline M. Cavender, to said executor, for seventeen thousand one hundred and sixty-nine 49-100 dollars, ordered by this court, October 5, 1878, to be paid by said executor to said trustee, and it appearing to the court that on the ninth day of December, 1878, said trustee filed his bond as trustee in the St. Louis circuit court, conditioned for the faithful execution of the trust vested in him under the will of said John Cavender, deceased, with William G. Eliot, George Partridge, and Edward S. Rouse as sureties; and said trustee, with said sureties, having, on the twenty-third day of April, 1879, filed in this court their written admission that said trustee has in law received and is bound for said sum of seventeen thousand one hundred and sixty-nine 49-100 dollars, af for cash actually received, and that said bond is in full force as to the custody of said sum as for cash actually received, and for the execu ion of the trust touching the same; and said executor, asking for his discharge on the strength of said receipt and admission, and said Robert S. and Caroline M. Cavender, having by counsel, T. A. Post, appeared to said motion for discharge, and submitting the same on their part without argument or objection; now, therefore, in view of the premises, the court being in possession of the evidence, and having fully considered the same, doth order that said John S.C.avender be, and he is hereby, finally discharged as such executor.'

All the foregoing evidence was received by the court without objection by the defendant.

Fourth. The deposition of J. S. Fullerton, who testified that money could be safely lent on real estate security in the city of St. Louis, in 1878 and part of 1879, at 7 per cent. per annum, and in the latter part of 1879, and since that year, at 6 per cent. per annum net.

Fifth. The deposition of John. S.C.avender, the defendant, who stated that he was the trustee of Robert S.C.avender, but had made no investments for him, and that he had placed no money to the benefit of the trust fund in securities of any sort, or in bank, and had set aside no annuities for the benefit of Robert S.C.avender or the trust estate.

No proofs were offered for the defendant, and the court, upon the evidence above recited, made a decree removing John S.C.avender as trustee and appointing John M. Glover in his stead, and directing Cavender, upon demand, to pay over to Glover, trustee, the said sum of $17,169.49, and such sums of money as had been received and collected by Cavender from sales of land or otherwise since April 30, 1879, belonging to the trust fund.

From this decree John S.C.avender has brought the present appeal.

Lucien Eaton and Henry Hitchcock, for appellant.

''Wm. A. McKenney'', for appellee.

WOODS, J.

title: Cavender v. Cavender


text: Talk:Cavender v. Cavender

title: Talk:Cavender v. Cavender


text:
Cavender v. Cavender/Opinion of the Court

The first contention of the plaintiff in error is that the demurrer to the bill should have been sustained, because the nature of the trust was not therein so sufficiently set forth as to form the foundation of a decree on the part of a court of equity. Whether the trust was fully and accurately set forth could not be known until the filing of the answer or the taking of the proofs. When the dumurrer was heard, from all that then appeared, the exact provisions of the will of the testator raising the trust, and all the terms and conditions of the trust, were stated in the bill. It could not then be known whether or not there was anything more to state. What was stated showed the creation of a trust estate, the appointment of a trustee, the designation of a cestui que trust, and specific directions to the trustee in respect to his duties. The court could not assume that any of the provisions of the will relating to the subject-matter of the trust were omitted from the bill, and what was stated was sufficient, if correctly stated, to enable the court to act intelligently. The demurrer was, therefore, properly overruled. But the defendant refused to stand on his demurrer and answered the bill. Having, as it may be fairly presumed, the will of the testator before him, he undertook to set out in his answer, under oath, the provisions of the will in respect to the trust estate and trust in question. There is no pretense that any material word or clause, in relation to the subject of the trust, was omitted from the answer. It is, therefore, too late for the defendant, on final hearing in the appellate court, to object that the provisions of the will were not fully set out in the bill of complaint. If there was any defect in the statement made in the bill, it was rendered immaterial by the statements of the answer, and is not now ground of complaint. Greenleaf's Lessee v. Birth, 5 Pet. 131.

A similar assignment of error to that just noticed is that the court erred in removing the appellee from his office of trustee without having before it the will or declaration of trust for interpretation. But it § clear that a defendant to a bill in equity, who states in his answer under oath the provisions of a writing which is presumed to be in his possession, cannot complain that the court acted upon his admission. The court might in its discretion have refused to interpret the writing without its production. But having acted upon the presumption that the defendant in his answer stated truly the contents of the writing, the latter cannot, on the ground that the writing itself was not put in evidence, ask a reversal of the decree. Courts of equity are frequently required to act on the admissions of the answer without other proof. Thus, when a cause is heard upon bill and answer, the decree is based entirely on the admissions of the answer without other testimony. Reynolds v. Crawfordsville Bank, 112 U.S. 405; S.C.., ante, 213; Brinckerhoff v. Brown, 7 Johns. Ch. 217; Grosvenor v. Cartwright, 2 Cas. Ch. 21; Perkins v. Nichols, 11 Allen, 542. At all events, it does not lie in the mouth of a defendant in equity to complain that the court assumed his answer made under oath to be true and decreed accordingly.

The next assignment of error is that the decree rendered by the circuit court is not justified by the law. The decree rests solely on the ground alleged in the bill, of neglect of duty and mismanagement of the trust property. If these grounds are sustained by the proof, the authorities are ample to justify the decree of removal. For, where the acts or omissions of the trustee are such as to show a want of reasonable fidelity, a court of equity will remove him. Ex parte Phelps, 9 Mod. 357; Mayor of Coventry v. Attorney General, 7 Brown P. C. 235; Attorney General v. Drummond, 1 Dru. & W. 353; Attorney General v. Shore, 7 Sim. 309n; Ex parte Greenhouse, 1 Madd. 92; Ex parte Reynolds, 5 Ves. 707; Clemens v. Caldwell, 7 B. Mon. 171; Johnson's Appeal, 9 Pa. St. 416; Ex parte Potts, 1 Ash. 340; Buchanan v. Hamilton, 5 Ves. 722; Ellison v. Ellison, 6 Ves. 663; Portsmouth v. Fellows, 5 Madd. 450; Lathrop v. Smalley's Ex'r, 23 N. J. Eq. 192; Hussey v. Coffin, 1 Allen, 354; Attorney General v. Garrison, 101 Mass. 223.

The averments of the bill sufficiently charge and the proofs establish neglect of duty and mismanagement of the trust estate. The charge of the bill, which is distinctly admitted by the answer, is that the probate court found in the hands of the appellant, executor of John Cavender, as due and belonging to said trust estate, the sum of $17,169.49, and ordered him to pay over that sum to himself, as trustee. The averment of the bill is sufficient to charge, and the admission of the answer sufficient to prove, the receipt by the defendant, as trustee, of the sum of money mentioned. They are conclusive evidence of the fact; for when one person is to pay money and receive the same money, and nothing remains but to enter receipts and payments in their proper accounts accordingly, the law will consider that as done which ought to be done. Thus, where a sole executor sustains the twofold character of executor and guardian, the law will adjudge the ward's proportion of the property in his hands to be in his hands in the capacity of guardian, after the time limited by law for the settlement of the estate, whether the final account has been passed by the orphans' court or not. Watkins v. State, 2 Gill. & J.220. So, where the same person is executor of an estate and guardian of a distributee, and there is noting to show in which capacity he holds funds after payment of debts and settlement of the estate, he shall be presumed to hold them as guardian. State v. Hearst, 12 Mo. 365. See also, Johnson v. Johnson, 2 Hill, (S.C.. Ch.) 299; Karr's Adm'r v. Karr, 6 Dana, 3. But the proof that the trust fund came to the hands of the trustee does not stop with the order and decree of the probate court fi ding the money in his hands as executor, and directing its payment to himself as trustee; for it appears that he made and filed in the probate court his receipt, as trustee, for the fund, and upon the strength of that receipt procured his discharge as executor. The record of the probate court, put in evidence, shows these facts. We have, therefore, the admission of record of the appellant, upon which the court of probate acted at his instance, and upon the strength of which it made an order relieving him from liability as executor, and it is binding on him, and he cannot be heard in any controversy with the appellee to deny his admission that the fund came to his hands.

It remains to inquire whether the proof sustains the charge of neglect of duty and mismanagement of the trust funds. Having taken possession of the trust moneys, it became the duty of the appellant to invest them as directed by the will, if it were possible to do so. The proof shows that it was possible. The appellant admits, under oath, that he has made no investments of the trust assets, and placed no funds in securities of any sort, or in bank, and set aside no annuities for the benefit of the cestui que trust or the trust estate. His own admissions show neglect of duty and mismanagement of the trust estate. The neglect to invest constitutes of itself a breach of trust, and is ground for removal. Clemens v. Caldwell, 7 B. Mon. 174; Lathrop v. Smalley's Ex'rs, 23 N. J. Eq. 192.

The only defense set up in the answer of the appellant is a denial that he ever gave a receipt as trustee, or that he had been discharged as executor by the probate court, or that the trust fund ever came to his hands. As the facts thus denied are conclusively established by the evidence, the denial is an aggravation of the misconduct of the appellant. A trustee, into whose hands trust assets are shown to have come, who not only fails to discharge any duty of the trust, but even denies that he has ever received the property, cannot successfully resist an application made to a court of equity for his removal.

The counsel for appellant say that they regret that the pleadings and evidence do not permit a full presentation of the case upon its merits. We cannot act on this vague intimation. There may be facts not disclosed which, if shown by the record, would entirey change the aspect of the case. But we must try the case as the record reveals it. Upon the cause, as presented, with no explanation vouchsafed by the appellant, it is difficult to conceive of a clearer case for the removal of a trustee and the appointment of another in his stead.

Decree affirmed.


text: Talk:Cavender v. Cavender/Opinion of the Court


text:
Burton v. West Jersey Ferry Company

Jerome Carty, B. Frank Clapp, and Mayer Suetzberger, for plaintiff in error.

''Saml. Dickson and Richd. C. Dale'', for defendant in error.

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

title: Burton v. West Jersey Ferry Company


text: Talk:Burton v. West Jersey Ferry Company


text:
Burton v. West Jersey Ferry Company/Opinion of the Court

The plaintiff in error, who was plaintiff below, took passage at Camden, New Jersey, for Philadelphia, on a ferry-boat belonging to the defendant, a New Jersey corporation engaged in the business of transporting passengers, animals, and vehicles across the Delaware between those cities. On that trip the boat was unusually crowded with passengers. The river at the time was very full of ice, and it was difficult for the boat to get across and enter the ferry slip on the Philadelphia side. The wharf on that side was reached only after repeated efforts. In the attempt to land the boat was driven against the bridge with such force as to throw the plaintiff and a number of other persons (all of whom were standing during the passage across the river) with great violence upon the floor. The fall caused serious and, perhaps, permanent injury to the plaintiff. In this action she claims damages from the defendant upon the ground that her injuries resulted from the careless and negligent management of the ferry-boat by its agents and servants. The plaintiff made a case entitling her to go to the jury upon the issue as to the defendant's negligence. But there was, also, proof tending to show that the striking of the boat against the wharf on the Philadelphia side occurred under peculiar circumstances, and could not, perhaps, have been avoided by any diligence upon the part of the agents of the defendant.

When the evidence was concluded, and after the parties submitted their requests for instructions, the court delivered its charge upon the whole case, reading to the jury the instructions asked by either party that were approved, and accompanying them with such observations, by way of explanation or qualification, as it deemed necessary.

The third and fourth points submitted in behalf of plaintiff were overruled. They were as follows:

'Third. If the jury believe from the evidence that the defendants received the plaintiff as a passenger, and that they failed to provide her with a seat, or that she was unable to obtain a seat by reason of the crowded condition of the boat, and while standing in the cabin she was, without any fault of her own, thrown down and injured by a sudden shock to the boat, then the defendants are guilty of negligence, and your verdict should be for the plaintiff.

Fourth. If the jury believe from the evidence that the defendants received the plaintiff, a woman 67 years of age, as a passenger, and that they failed to provide her with a seat, or that she was unable to obtain a seat by reason of the crowded condition of the boat, and, while standing in the cabin, she was, without any fault of her own, thrown down and injured oy a sudden shock to the boat, then the defendants were guilty of negligence, and your verdict should be for the plaintiff.'

At the conclusion of the charge, the plaintiff, by counsel, excepted to the overruling of her third and fourth points, and also to 'the charge and opin on' of the court. No other exceptions were taken.

1. The general exception to the charge did not direct the attention of the court to the particular portions of it to which the plaintiff objected. It therefore raises no question for review by this court. ''Connecticut Life Ins. Co. v. Union Trust Co. 112 U.S. 250, 261, S.C.., ante'', 119, and authorities there cited.

2. The only question for determination relates to the refusal of the court to instruct the jury as indicated by the third and fourth points of the plaintiff, which involve, substantially, the same proposition. Those points were properly overruled. Under the theory of the case which they present, the jury-although the sudden shock to the boat, from which plaintiff's injuries immediately resulted, may have occurred without want of care or skill upon the part of the defendant's servants-would have been required to find for the plaintiff, if the defendant failed to provide her with a seat, or if she was unable, by reason of the crowded condition of the boat, to obtain one. In other words, that the mere failure of the company to provide a seat for a passenger on its boat was, in law, and of itself, proof of negligence. It appeared in evidence that the boat was provided with seats; but it did not appear that a less number was provided than was customary and sufficient for those who ordinarily preferred to be seated while crossing in ferry-boats between Camden and Philadelphia. No circumstances were disclosed that would have justified the jury in finding that a proper degree of care upon the part of defendant required it to provide seats sufficient for the accommodation of all the passengers that its boat could safely carry, or of such number of passengers as ordinarily traveled upon it.

The judgment is affirmed.


text: Talk:Burton v. West Jersey Ferry Company/Opinion of the Court


text:
Clawson v. United States (114 U.S. 477)

F. S. Richards and Wayne MacVeagh, for plaintiff in error.

''Sol. Gen. Phillips'', for defendant in error.

BLATCHFORD, J.

title: Clawson v. United States (114 U.S. 477)


text: Talk:Clawson v. United States (114 U.S. 477)


text:
Clawson v. United States (114 U.S. 477)/Opinion of the Court

At April term, 1884, of the Third judicial district court of Utah territory, Rudger Clawson was indicted, under two counts, in the same indictment, one for polygamy, and the other for cohabiting with more than one woman. The first count was founded on section 5352 of the Revised Statutes of the United States, as amended by section 1 of the act of congress of March 22, 1882, (22 St. 30;) and the second on section 3 of that act. By section 4, counts for those offenses may be joined in the same indictment. The defendant was tried in October, 1884, and found guilty on both counts, as charged; and sentenced, on the first count, to pay a fine of $500, and to be imprisoned three years and six months; and, on the second count, to pay a further fine of $300, and to be imprisoned the further term of six months; and, further, to be confined till the fines be paid. From this judgment he appealed to the supreme court of the territory, which affirmed the judgment and sentence, and he has brought the case to this court by a writ of error.

The indictment was presented and filed in court, April 24, 1884. On the thirtieth of April, 1884, before plea, the defendant moved to set aside the indictment, on the ground that the grand jury was not legally constituted, in that qualified grand jurors, drawn and summoned, were illegally excluded from the grand jury, on the challenge of the prosecuting attorney. The motion was heard on an agreed statement of facts, which is set out in the bill of exceptions, and was overruled, and the defendant excepted to the decision. The first error here assigned is that that motion was improperly overruled.

By section 4 of the act of congress of June 23, 1874, (18 St. 254.) entitled 'An act in relation to courts and judicial officers in the territory of Utah,' it is provided as follows: 'That within sixty days after the passage of this act, and in the month of January annually thereafter, the clerk of the district court in each judicial district, and the judge of probate of the county in which the district court is next to be held, shall prepare a jury-list from which grand and petit jurors shall be drawn, to serve in the district courts of such district, until a new list shall be made as herein provided. Said clerk and probate judge shall alternately select the name of a male citizen of the United States who has resided in the district for the period of six months next preceding, and who can read and write in the English language; and, as selected, the name and residence of each shall be entered upon the list, until the same shall contain two hundred names, when the same shall be duly certified by such clerk and probate judge; and the same shall be filed in the office of the clerk of such district court, and a duplicate copy shall be made and certified by such officers, and filed in the office of said probate judge. Whenever a grand or petit jury is to be drawn to serve at any term of a district court, the judge of such district shall give public notice of the time and place of the drawing of such jury, which shall be at least twelve days before the commencement of such term; and on the day and at the place thus fixed, the judge of such district shall hold an open session of his court, and shall preside at the drawing of such jury; and the clerk of such court shall write the name of each person on the jury-lists returned and filed in his office upon a separate slip of paper, as nearly as practicable of the same size and form, and all such slips shall, by the clerk in open court, be placed in a covered box, and thoroughly mixed and mingled; and thereupon the United States marshal, or his deputy, shall proceed to fairly draw by lot from said box such number of names as may have previously been directed by said judge; and if both a grand and petit jury are to be drawn, the grand jury shall be drawn first; and when the drawing shall have been concluded, the clerk of the district court shall issue a venire to the marshal or his deputy, directing him to summon the persons so drawn, and the same shall be duly served on each of the persons so drawn at least seven days before the commencement of the term at which they are to serve; and the jurors so drawn and summoned shall constitute the regular grand and petit juries for the term for all cases. And the names thus drawn from the box by the clerk shall not be returned to or again placed in said box until a new jury-list shall be made. If during any term of the district court any additional grand or petit jurors shall be necessary, the same shall be drawn from said box by the United States marshal in open court; but if the attendance of those drawn cannot be obtained in a reasonable time, other names may be drawn in the same manner. * *  * The grand jury must inquire into the case of every person imprisoned within the district on a criminal charge and not indicted. * *  * '

A jury-list of 200 persons, from which to draw grand and petit jurors for the Third judicial district court for the year 1884, was made, certified, and filed in the office of the clerk of the court, under the above-cited provisions of the act of June 23, 1874, and a number was set opposite to each name. Those having even numbers opposite to their names were selected by the probate judge, and were reputed Mormons, and those having odd numbers opposite to their names were selected by the clerk of the court, and were reputed not to be Mormons. On the thirty-first of March, 1884, at a session of the court, 30 names were drawn from the jury-list, from which to impanel a grand jury for the April term, 1884. Of these 30, 13 had e en numbers, and 17 odd numbers. Of the 30, 5 did not appear, or were excused, leaving 25, of whom 10 had even numbers and 15 odd numbers. Those 25 persons, during the proceedings to impanel the grand jury, were all called and sworn, and examined as to their qualifications as grand jurors, 15 of them being each asked the following questions: 'Do you believe in the doctrine and tenets of the Mormon church? Do you believe in the doctrine of plural marriage, as taught by the Mormon church? Do you believe it is right for a man to have more than one undivorced wife living at the same time?' Each of the 15 persons so interrogated answered the questions affirmatively. Each was thereupon challenged by the prosecuting attorney, and the court allowed the challenges, and excluded each of those 15 persons from the grand jury. Thus every one of the 25 persons who was a reputed Mormon was excluded from the grand jury. Each of the 15 persons so interrogated had all the qualifications prescribed by law for grand jurors, unless disqualified by such answers. The defendant had not been charged with, or held to answer, the offenses charged in the indictment, or any criminal offense, at the time the grand jury was impaneled; the examination of the persons called as grand jurors, and the challenges, were wholly conducted and made by the prosecuting attorney; and no questions were propounded to or answered by persons with odd numbers opposite their names, respecting their religious belief. After those 15 persons were excluded, only 10 grand jurors accepted by the United States remained, out of the list of 30 originally drawn; and thereupon the court ordered a drawing of 10 additional names from the general list of 200, which was done, 3 having even numbers, and 7 odd numbers. A venire was issued for the 10, and 6 of them appeared, all having odd numbers, and 5 of the 6 were added to the 10 accepted, and the jury, as impaneled and sworn, consisted of those 15, all of them reputed non-Mormons, and it found and presented the indictment against the defendant.

The challenging and exclusion of the 15 persons is maintained to have been proper, under section 5 of the act of March 22, 1882, before referred to, and which reads as follows: 'That in any prosecution for bigamy, polygamy, or unlawful cohabitation, under any statute of the United States, it shall be sufficient cause of challenge to any person drawn or summoned as a juryman or talesman First, that he is or has been living in the practice of bigamy, polygamy, or unlawful cohabitation with more than one woman, or that he is or has been guilty of an offense punishable by either of the foregoing sections, or by section fifty-three hundred and fifty-two of the Revised Statutes of the United States, or the act of July 1, eighteen hundred and sixty-two, entitled 'An act to punish and prevent the practice of polygamy in the territories of the United States and other places, and disapproving and annulling certain acts of the legislative assembly of the territory of Utah; or, second, that he believes it right for a man to have more than one living and undivorced wife at the same time, or to live in the practice of cohabiting with more than one woman; and any person appearing or offered as a juror or talesman, and challenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge, and other evidence may be introduced bearing upon the question raised by such challenge; and this question shall be tried by the court. But as to the first ground of challenge before mentioned, the person challenged shall not be bound to answer if he shall say upon his oath that he declines on the ground that his answer may tend to criminate himself; and if he shall answer as to said first ground, his answer shall not be given in evidence in any criminal prosecution against him for any offense named in sections one or three of this act; but if he declines to answer on any ground, he shall be rejected as incompetent '

As each of the 15 persons challenged and excluded anwered, when questioned on oath, that he believed it right for a man to have more than one undivorced wife living at the same time, he was properly excluded, if section 5 of the act applied to the case. It is contended that that section did not apply because the defendant had not been held to answer, and there was no prosecution against him. The language of the section is that 'in any prosecution for bigamy, polygamy, or unlawful cohabitation, under any statute of the United States, it shall be sufficient cause of challenge,' etc. It is urged that the proceedings to impanel a grand jury were not part of a prosecution, and that the prosecution could not begin until after the grand jury had been completely impaneled. But we think this is too narrow a view of the statute. The whole scope of section 5 is to prescribe what shall be sufficient causes of challenge to be made by the United States in a case of bigamy, polygamy, or unlawful cohabitation. It is the United States alone who would desire to exclude from the grand jury persons answering the descriptions named in the section It is not contemplated that a person to be prosecuted for the offenses specified would challenge for any of the causes set forth. The mischief to be remedied was the having as grand jurors, against the interest of the United States, the persons specified in a prosecution for the particular offenses named. If the grand jury enters upon the investigation of cases involving the offenses designated, and such investigation results in the finding of an indictment for any of those offenses, it cannot properly be alleged by the defendant in the indictment that the prosecution did not, within the meaning of section 5, begin with the first step in the proceedings to obtain the grand jury which found the indictment. And, for the protection of the defendant himself, it would necessarily be equally held that he was entitled to claim that such proceedings were a part of the prosecution against him, because otherwise he could have no right to question those proceedings.

The prosecution was one for offenses created by a statute of the United States. That is the meaning of section 5 of the act. And it is not an objection that can be urged by this defendant that the same grand jury might have been called upon to act on other offenses than those named in that section. It is also urged that section 5 does not apply to grand jurors. The language is, 'any person drawn or summoned as a juryman or talesman'-'any person appearing or offered as a juror or talesman.' In view of the fact that, by section 4 of the act of June 23, 1874, both grand jurors and petit jurors are to be drawn from the box containing the 200 names, and are to be summoned under venires, and are to constitute the regular grand and petit juries for the term, and of the further fact that the persons to be challenged and excluded are persons not likely to find indictments for the offenses named in section 5, we cannot doubt that the words 'juryman' and 'juror' include a grand juror as well as a petit juror. There is as much ground for holding that it includes the former alone, as the latter alone, if it is to include but one. It must include one, at least, and we think it includes both. The purpose and reason of the section include the grand juror; and there is nothing in the language repugnant to such view. The use of the words 'drawn or summoned as a juryman or talesman,' and of the words 'appearing or offered as a juror or talesman,' does not have the effect of confining the meaning of 'juror' to 'petit juror,' on the view that the ordinary meaning of 'talesman' refers to a petit juror. A grand juror is a juryman and a juror, and is drawn and summoned, and it might well have been thought wisest to mention a 'talesman' specifically, lest the words 'juryman' and 'juror' might be supposed not to include him.

It is objected that none of the grand jurors who were retained on the panel were interrogated as to whether they believed it right for a man to live in the practice of cohabiting with more than one woman. As to this it is sufficient to say that the challenges were based on the affirmative answers to the third question, and that the statute only specifies what shall be a sufficient cause of challenge, and does not compel the making of the challenge or the asking of the questions. After the motion to set aside the indictment was overruled, the trial was had, on a plea of not builty. In impaneling a jury, it appeared that the list of jurors drawn and summoned for the term, and also the general jury-list for the year, consisting of 200 names selected and returned for a general jury-list, were exhausted, and that no names remained in the general jury-box. Thereupon, the prosecuting attorney, on the ground that the jury-list provided for by statute was exhausted, moved the court that an open venire issue, to summon such jurors as were necessary. The defendant objected to the issuing of an open venire or any venire for jurors, on the ground that there was no law authorizing it. The court overruled the objection, and the defendant excepted. By an order of the court, a venire was then issued to the United States marshal for Utah territory, commanding him to summon from the body of the judicial district 50 jurors. They were summoned, and, on the return of the venire, the panel was challenged by the defendant because the jurors were selected and summoned on an open venire. The challenge was overruled and the defendant excepted. Like proceedings took place in respect to two further open venires for 30 and 24 jurors, respectively. Of the 12 persons who composed the jury, 11 were obtained from those summoned under the open venires.

It is assigned for error that the petit jury was illegally constituted, in that the court had no right to summon petit jurors on an open venire. The argument is that the provisions of section 4 of the act of June 23, 1874, are, on their face, exclusive; that the method prescribed by that section for obtaining jurors is the only one that can be employed; that only the probate judge and the clerk of the court can select the jurors and make the jury-list; that the grand and petit jurors for a term must be drawn by the marshal from a box containing names of persons thus selected, and constitute the regular grand and petit juries for the term; that if, during the term, any additional grand or petit jurors are necessary, they must be drawn by the marshal, in open court, from the same box; and that, if the 200 names are all drawn out, for grand or petit jurors, at any time during the year, there can be no more indictments found, or any more civil or criminal jury trials had, in the court of the district, for the rest of the year, because it is provided in section 4 that the jurors drawn from the box shall be jurors only for the term, of which there are four in the year, and that the names drawn shall not be again placed in the box until a new jury-list is made, which is to be done annually in January. A result so disastrous to the administration of justice, so certain to impair, if not destroy, public and private rights, is not to be permitted, unless imperatively required. The act of June 23, 1874, does not prescribe the making of a new list by the probate judge and clerk except once a year, in January, or the making by them of an additional list at any time during the year. But that act does not directly, or by implication or intendment, exclude the use of an open venire when the 200 names are exhausted during the year. It provides that the jurors drawn and summoned shall constitute 'the regular grand and petit juries for the term, for all cases.' By other provisions of law, each of the district courts of the territory is required to hold four terms a year. There is no doubt that jurors must be drawn from the 200 names, or those of them remaining in the box, so long as any remain. But the question is, what is to be done when those names are exhaus ed? If there is no method that can be resorted to to obtain jurors, in such event, the provisions in section 5 of the act of 1882, for challenges by the United States, with a view to indictments for the offenses named in that section, will have proved suicidal, and resulted in destroying all opportunity to find or try such indictments. We are not referred to any statutory provision, in any act of congress, or any act of the territory, which forbids the use of an open venire when the 200 names are exhausted. The argument is that the provisions of section 5 of the act of 1882 cover the entire subject of obtaining jurors, and do not allow of any supplementary measures; and that such measures cannot be resorted to unless affirmative statute authority, directed to the very point, is to be found.

The supreme court of Utah, in its opinion affirming the judgment in the present case, did not refer to any statute of congress, or of the territory, directly authorizing the open vinire, but rested the power to issue it on the fact that such power was inherent in the court, and was not forbidden by any statute in force in Utah; and held that it followed as an incident to the authority and duty of the district court to hold its sessions and try by jury indictments for crimes. We concur in this view, so far as the resort to the open venire after the exhaustion of the 200 names is concerned.

The fourth section of the act of 1874 prescribes the rule to be observed, to the extent in which it prescribes any rule. It proceeds on the view that the jury-list of 200 names will be sufficient for ordinary purposes, or, as it expresses it, for 'the regular grand and petit juries for the term;' and it provides what shall be done so long as there are any names left in the box. But it is silent as to what shall take place when the names are all exhausted. It does not forbid the ordinary and well-known resort to an open venire. Moreover, section 5 of the act of 1882, in regard to prosecutions like the present one, prescribes what shall be a sufficient cause of challenge to a person 'drawn or summoned as a juryman or talesman,' and what questions may be put to 'any person appearing or offered as a juror or talesman;' thus recognizing a 'talesman' as distinct from a 'juryman' or a 'juror.' The persons drawn from the box of 200 names are 'jurors,' and are so defined and called in section 4 of the act of 1874. Congress, therefore, in using the word 'talesman,' had reference to a person not drawn from such box. The word 'talesman' is not satisfied by referring it to the additional jurors which section 4 of the act of 1874 says may and shall be drawn from the box, if they 'shall be necessary,' during the term. They are not talesmen, in any proper sense, but are as much regular jurors as those first drawn from that box.

The principle which authorized the action of the court in obtaining petit jurors, in this case, after the statutory measures had been exhausted, is sanctioned by authority. Bac. Abr. 'Juries,' C; 1 Chit. Crim. Law, 518; 2 Hale, P. C. 265, 266; U.S. v. Hill, 1 Brock. 156; Mackey v. People, 2 Colo. 13; Stone v. People, 2 Scam. 326; Straughan v. State, 16 Ark. 37, 43; Wilburn v. State, 21 Ark. 198, 201; Gibson v. Com. 2 Va. Cas. 111, 121; Shaffer v. State, 1 How. (Miss.) 238, 241; Woodsides v. State, 2 How. (Miss.) 655, 659; State v. Harris, (Sup. Ct. Iowa, Sept. 1884,) 20 N. W. Rep. 439; S.C.. 17 Chi. Leg. N. 58. By section 1868 of the Revised Statutes, the district courts of the territory have common-law jurisdiction, and, under section 1874 of the Revised Statutes, and section 1061 of the Compiled Laws of Utah, of 1876, those courts have original jurisdiction, in criminal cases. By section 217 of the Criminal Procedure Act of Utah, of February 22, 1878, all issues of fact in criminal cases must be tried by jury, and by section 7 the defendant in a criminal action is entitled to a speedy trial. A venire t summon jurors is a writ necessary to the exercise of the jurisdiction of the court, and agreeable to the principles and usages of law, where it is not forbidden or excluded, and where the affirmative provisions of law have, so far as they extend, been first observed. In U.S. v. Hill, (before cited,) Chief Justice MARSHALL, speaking of the law as it then existed, says: 'It has been justly observed that no act of congress directs grand juries, or defines their powers. By what authority, then, are they summoned, and whence do they derive their powers? The answer is that the laws of the United States have erected courts which are invested with criminal jurisdiction. This jurisdiction they are bound to exercise, and it can only be exercised through the instrumentality of grand juries. They are, therefore, given by a necessary and indispensable implication. But how far is this implication necessary and indispensable? The answer is obvious. Its necessity is co-extensive with that jurisdiction to which it is essential.'

The cases to which we are referred by the plaintiff in error were cases where express statute provisions had been disregarded or violated. If, in this case, an open venire had been issued before the 200 names were exhausted, a different question would have been presented.

The record shows no error, and the judgment is affirmed.


text: Talk:Clawson v. United States (114 U.S. 477)/Opinion of the Court