text:
McNitt v. Turner/Opinion of the Court

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

Turner, alleging that he "was possessed as of his own demesne in fee" of the same, brought ejectment against McNitt and another for a piece of land, "situate in the county of Brown, and State of Illinois," and described as follows, to wit:

"The southeast quarter of section four (4) in township one (1) south, of range four (4) west in said county of Brown."

Both plaintiff and defendant admitted title in one Samuel Spotts.

THE PLAINTIFF claimed through a decree of sale made on prior proceedings, by the Circuit Court of Adams County, Illinois, after Spotts's death. The validity of this title depended on the interpretation to be given to certain statutes, and on the validity of a certain notice, thus:

A statute of Illinois, relating to wills, enacts:

"SECTION 51. In all cases where the intestate shall have been a non-resident or without a widow, next of kin, or creditors in this State, but having property within the State, administration shall be granted to the public administrator of the proper county, and to no other person."

"SECTION 98. When any executor or administrator, whose testator or intestate shall have died seized of any real estate in this State, shall discover or suspect that the personal estate of such testator or intestate is insufficient to pay the just claims against his or her estate, such executor or administrator shall, as soon as conveniently may be, make a just and true account of the said personal estate and debts, as far as he or she can discover the same, and shall make out a petition to the Circuit Court of the county in which administration shall have been granted, stating therein what real estate the said testator or intestate died seized of, or so much thereof as will be necessary to pay his or her debts as aforesaid, and to request the aid of the said court in the premises."

SECTION 104 provides that the court shall examine the allegations and proofs, and if it appear that the personal estate is insufficient to pay the debts, the court shall direct the sale.

SECTION 105 provides that the conveyance made under the order of sale shall be effectual against all claiming through the intestate or his heirs.

SECTION 106 provides how the sales shall be made, imposes a penalty for selling contrary thereto, and declares that no irregularity in the sale shall affect the validity of the title.

With these provisions in force, Archibald Williams, to whom the probate justice for Adams County had granted, November 24th, 1837, letters of administration on the estate of Spotts, describing him as 'of the city of New Orleans, Louisiana,' gave in the Quincy Whig, for four weeks (the first publication being July 21st, 1838), the following

NOTICE.

"The subscriber, as administrator of the estate of Samuel Spotts, deceased, will make application to the Circuit Court of Adams County, and State of Illinois, at the next September Term thereof, for leave to sell the following real estate, belonging to the said Samuel Spotts, or so much thereof as will be sufficient to pay his debts, his personal estate being insufficient to pay the same. All persons interested in said estate are requested to show cause, if any they have, why it should not be sold for the purposes aforesaid.

Parts of Sections. Township. Range.

S.E. 4  .......  1 S.  ...........4 W.

S.W. 24  ......  3 N.  ...........8 W.

S.W. 15 ....... 10 N.  ...........3 E.

S.E. 26 ....... 13 S.  ...........2 W.

N.W. 36 .......  4 N.  ...........6 W.

N.W. 23 .......  5 N.  ...........7 W.

"All of the above land being recorded north or south of the base line, and east and west of the fourth principal meridian.

"ARCHIBALD WILLIAMS,

"Administrator of Samuel Spotts, deceased."

The notice having been thus given, Williams presented a petition or "bill" to the Circuit Court of the said county of Adams, setting forth these letters, and setting forth that Spotts had died intestate before the 1st of January, A.D. 1836, leaving in Illinois certain real estate described in the copy of the inventory, marked Exhibit A, filed herewith.

The inventory (purporting to be "an inventory of the real estate belonging to the estate of Samuel Spotts, deceased,") then set forth thirty-one quarter sections of land, described in this style:

S.E. 4. 1 S. .4 W.

S.W. 24. 3 N. .8 W.

S.W. 15 .10 N.  .3 E.

S.E. 26 .13 S.  .2 W.

N.W. 36. 4 N. .6 W.

N.W. 23. 5 N. .7 W.

S.W. 7. 9 N. .5 E.]

The petition or "bill" further set forth personal property to the value of $5, and debts to the amount of $19,599, as appeared by an account thereof, annexed, and it prayed an order of sale of so much of the real property as would pay the debts.

The bill was exhibited against no one by name; no persons were made parties to it. Proof being made to the court of the publication as above mentioned of the "Notice," the court, reciting "that it appeared to it that the allegations in the said bill were true, and that due publication had been made of the intention to apply to this court for permission to sell the lands in the said bill mentioned," decreed, September 14th-its September Term-1838, a sale of them, or of so much as would pay the debts. The administrator made no report of sales until the 30th of August, 1851. He then reported that he had, on the 17th day of June, 1839, in pursuance of the decree, sold thirty-one quarter sections of land, one of which was the "S. E. 4, 1 S. 4 W.," which was reported as sold to one Hennen.

Through this sale and a chain of mesne conveyances, beginning with the heirs-at-law of Hennen, it was that the plaintiff claimed.

It was proved that the premises were situated in what is known as "The Military Bounty Tract."

THE DEFENDANT claimed through a deed (to one John Lucas), made in Spotts's lifetime, that is to say, through a deed dated September 12th, 1820, which deed, however, had not been recorded until January 2d, 1864. Whether the deed was operative depended on the interpretation to be given to a statute in force, alike when the deed was made, when it was recorded, and now, and which enacts:

"SECTION 22. Deeds and other instruments relating to or affecting title to real estate, shall be recorded in the county where such real estate is situated."

"SECTION 23. All deeds, mortgages, or other instruments of writing, which are required to be recorded, shall take effect and be in force after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers, without notice, and all such deeds and title-papers shall be adjudged void as to all such creditors and subsequent purchasers without notice, until the same shall be filed for record."The court charged that the plaintiff, Turner, had shown title and was entitled to recover. The defendant excepted; the exception being in this general form:

"To which opinion and decision of the court the defendant then and there excepted at the time of the charge."

The defendants then asked the court to charge,

"(1.) That the deed from Spotts to Lucas and the subsequent deeds in that chain of title conveyed the fee of the premises in question to McNitt.

"(2.) That the deed from Spotts to Lucas having conveyed the premises to Lucas, Spotts did not die seized of them, and that they were therefore not liable to be sold by his administrator for the payment of his debts, and that the decree of sale was void.

"(3.) That Spotts having conveyed to Lucas before the proceeding in the Circuit Court of Adams County was instituted by Williams, no title passed by the deed of Williams to Hennen, and hence none by the subsequent mesne conveyances to Turner."

The court refused thus to charge, and the defendants again excepted.

Verdict and judgment having gone for the plaintiff, the defendants brought the case here.

Messrs. J. Grimshaw and O. H. Browning, for the plaintiff in error:

The proceeding in the court of Adams County was wholly ex parte. It does not show who Spotts's heirs were, or where they lived, or what their ages were. Though not stating that he left none, it wholly ignores the existence of any. No report of the sale was made until twelve years after it was made, if it was ever made. Where the sale was made is not stated. All this by way of preface to the argument.

1. The whole proceeding of converting realty into assets is a statutory and extraordinary one, and very dangerous to the rights of minors always. The 98th section of the statute relied on allows the sale by an administrator for debts only where the intestate has died seized. Seizin is a condition precedent: and of course it must be averred in the petition that the party did die seized. Now—

1st. "Leaving" an estate is not equivalent to being "seized" of it. There are many rights in land inferior to "seizin." Indeed, a party may be disseized and yet own an estate, which he may recover by writ. Such an estate he would "leave" though not seized of it; nay, though disseized of it. There is the greatest reason then for following the words of the statute.

2d. But if "dying seized of land" were synonymous with "leaving" it, how then?

As a matter of fact, Spotts did not die leaving this land. He had conveyed to Lucas years before he died. The fact of his conveyance is not denied. It is no answer to say that purchasers at judicial sale are "purchasers" within the meaning of the 23d section of the act relating to the recording of deeds. Purchasers at properly conducted judicial sales are; but not purchasers at judicial sales that are void. Purchasers under the 98th section, authorizing administrators to make sale, are purchasers within the recording acts only when the conditions which the statute prescribes for such sale have existed. Seizin (or, if you please, for the sake of the argument, "leaving") is here one condition. But certainly when the sale was applied for, and even when it was ordered and in process of being made, the condition did not exist. Spotts had neither died "seized" of nor "leaving" the land. How does the condition come into existence, by the fall of the auctioneer's hammer and the execution of the deed? It cannot so come into existence. The attempted answer begs the whole question.

2. The intestate was a non-resident, a citizen of Louisiana. It does not appear that he had ever been in Illinois. Now, the 51st section of the statute relating to wills is imperative, that in such a case the probate judge must do one thing, and one thing only. He must grant administration to the public administrator. Williams was not the public administrator; though, as a matter of fact, it may be stated that there was one at that time. Williams's letters were for the administration of this estate alone. They were plainly void under the statute.

3. The only description given of the land in the petition, the exhibit filed therewith, the notice, the decree of sale, the report of sale in any of the papers connected with the case, is as follows: "S. E. 4, 1 S. 4 W.," to which it is fair to add the words, "in the State of Illinois," as the petition states that Spotts "died intestate, leaving in this State the real property described in the copy of the inventory marked Exhibit A." It was decreed against by the same description; advertised for sale by the same description; and by the same description sold and reported by the administrator.

Now, by what a right does the purchaser of the "S. E. 4, 1 S. 4 W.," in the State of Illinois, claim the "southeast quarter of section four, in township one south, range four west, in Brown County, Illinois?"

No base-line, meridian, or county is mentioned in the description of the land in the proceedings in the Adams Circuit Court, though it is said that they are "recorded north or south of the base-line," pc. But the court will take judicial notice that there are, in Illinois, different base-lines and meridians, and that there is a quarter section of land in Brown County and another in Washington County which equally answers to the description given in the petition, and other proceedings, viz.: "S. E. 4, 1 S. 4 W., in the State of Illinois." Which was intended, the court cannot tell. There is an ambiguity; but, as it was raised by evidence, it cannot be removed by evidence. It is inherent in the description, is partent, and the decree and the sale are alike void.

Messrs. Skinner, Marsh, and Frost, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

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

The defendant in error brought two separate actions of ejectment in the court below, one against each of the plaintiffs in error. They were landlord and tenant, and by consent of the parties the actions were consolidated. The plaintiff recovered the premises in controversy. The defendants thereupon brought this writ of error.

The chain of title relied upon by the respective parties was as follows: Turner gave in evidence a patent from the United States to Louis F. Lefay, dated October 23d, 1818; a deed from Lefay to Samuel Spotts, dated December 19th, 1818, and recorded in the proper county March 22d, 1820; the proceedings of the Circuit Court of Adams County, in Illinois, touching a decree of sale made by that court upon the application of Archibald Williams as the administrator of Spotts, and a sale made accordingly; a deed by the administrator to Duncan N. Hennen, the purchaser, dated June 17th, 1839, recorded April 3d, 1841; and a chain of mesne conveyances extending from the heirs-at-law of Hennen down to Turner, the plaintiff in the court below.

The defendants gave in evidence a deed from Spotts to John Lucas, dated September 12th, 1820, recorded January 2d, 1864, and a sequence of deeds from Lucas down to McNitt, one of the plaintiffs in error. McNitt was in possession of the premises.

The court instructed the jury that Turner had shown title, and was entitled to recover. To this the defendants excepted.

The defendants then asked the court to instruct the jury:

That the deed from Spotts to Lucas and the subsequent deeds in that chain of title conveyed the fee of the premises to McNitt.

That the deed from Spotts to Lucas having conveyed the premises to Lucas, Spotts did not die seized of them, that they were therefore not liable to be sold by his administrator for the payment of his debts, and that the decree of asle was void.

That Spotts having conveyed to Lucas before the proceeding in the Circuit Court of Adams County was instituted by Williams, no title passed by the deed of Williams to Hennen, and hence none by the subsequent mesne conveyances to Turner.

These instructions the court refused to give, and the defendants excepted.

A few remarks will be sufficient to dispose of this exception. All the instructions relate to the deed of Spotts to Lucas.

The decree of sale was made by the court at the September term, 1838. The sale to Hennen was made on the 17th of June, 1839. The deed of Williams to him was made on the 17th of June, 1839, and recorded April 3d, 1841. The deed of Spotts to Lucas, though made on the 12th of September, 1820, was not recorded until January 2d, 1864. The 22d section of statute of Illinois, in force at both these periods and still in force, provides that "deeds and other instruments relating to or affecting title to real estate shall be recorded in the county where such real estate is situated." The next section is as follows: "Sec. 23. All deeds, mortgages, or other instruments of writing, which are required to be recorded, shall take effect and be in force after the time of filing the same for record, and not before as to all creditors and subsequent purchasers, without notice, and all such deeds and title-papers shall be adjudged void as to all such creditors and subsequent purchasers without notice until the same shall be filed for record."

The term "purchasers" as used in this statute includes purchasers at judicial sales. A deed not filed for record is as to them wholly without effect. It is in all respects, so far as they are concerned, as if it did not exist. The maxim applies, De non apparentibus et de non existentibus eadem est ratio.

Seizin was originally the completion of the feudal investiture. In American jurisprudence it means, generally, ownership. The covenant of seizin and the covenant of right to convey are synonymous.

The deed from Spotts to Lucas cannot affect any question arising in the case, and must be excluded from consideration. All the instructions asked by the plaintiffs in error assumed its efficacy for the purposes to which they referred. The instructions were therefore properly refused.

It is assumed in the assignment of errors and in the printed arguments of the learned counsel for the plaintiffs in error, that the admission in evidence of the record from the Circuit Court of Adams County, was objected to, the objection overruled, and exception taken. No such exception appears in the record.

In an action of ejectment the plaintiff must recover, if at all, upon the strength of his own title. The weakness of his adversary's cannot avail him.

The only exception which remains to be considered is to the charge of the court, that the plaintiff had shown title in fee and was entitled to recover. That exception is thus set out in the record: 'To which opinion and decision of the court the defendant then and there excepted, at the time of the said charge.' The chain of the plaintiff's title, as exhibited on the trial, consisted of many links. The exception should have pointed out specifically the link or links deemed defective, and in what the defect was supposed to consist, in order that the court might be duly notified and have an opportunity to correct the error, if any, into which it had fallen. The exception is insufficient. But this objection has not been insisted upon by the counsel for the defendant in error. We shall, therefore, consider the case as if the exception were sufficiently full and specific to meet the requirements of the rule upon the subject.

The objections taken to the title of the defendant in error are all confined to the judicial proceedings touching the sale by the administrator. Those objections, so far as it is necessary to consider them, are— That the seizin of Spotts, at the time of his decease, is neither averred nor shown; and that the contrary appears.

That the authority to sell was given to Williams, the administrator, specially appointed, when the general administrator for the county should have been appointed, and the authority given to him; and that the description of the premises in the petition of the administrator is insufficient and a nullity.

It is insisted that these defects are jurisdictional, and that the proceeding was coram non judice and void.

The petition sets forth "that the said Samuel Spotts heretofore, to wit, before the first day of January, A.D. 1836, died, leaving in this State the real property described in the copy of the inventory marked 'Exhibit A,' filed herewith." The term leaving, used in this connection, is the synonym of owning. It is idiomatic rather than dialectic, and is believed to obtain in this sense throughout the country where so applied. This is sufficient. Such a petition need not follow the language of the statute and be drawn with the accuracy of an indictment. Nothing is required but the substance of what is necessary to be stated, intelligibly expressed. The deed of Spotts to Lucas is relied upon to disprove the seizin. That deed, we have shown, can have no such effect. The record of deeds in the proper office, as it stood, showed the seizin of the decedent, and that was sufficient. No one was bound to look further, and it was conclusive upon all concerned.

It does not appear that Williams was not the public administrator, and if he were not, that there was any such officer for Adams County at that time. If there was not, the appointment of Williams was proper. Error must be shown. It is not to be inferred, except where the inference is inevitable. Everything consistent with the record which would have warranted the appointment, will be presumed to have existed and to have been found and acted upon by the court. Acts done which presuppose the existence of other acts, to make them legally operative, are presumptive proofs of the latter. These views render it unnecessary to consider the construction of the statute contended for by the counsel for the defendant in error, whereby, in effect, and would be substituted for "or;" and also the question whether the statute, not declaring an appointment made contrary to its provisions void, is not merely directory. It was certainly within the jurisdiction of the court to decide both these points. The form of the letters issued to the general administrator, and to other persons when appointed, is the same.

It is insisted that the description contained in the petition is so defective by reason of the omission to name the meridian east or west of which the land is situated, that its terms are equally applicable to another tract in another county. Admitting this to be so, it is averred in the petition, and shown by the evidence, that the tract in question belonged to Spotts, while no such fact appears as to the other tract, and it is not pretended that it exists. This is sufficient. The decree finds all the allegations of the petition to be true. Proof of the ownership by Spotts of the tract sold was admissible to locate the description upon the proper premises, and to remove the ambiguity which was found to exist. In the case of Dougherty v. Purdy, as in this case, the meridian was omitted in the description, and the ambiguity was the same as here.

The land is correctly described in the schedule attached to the notice of the intended application to the court for authority to sell. This might be resorted to, if necessary, to supply the defect in the petition subsequently filed. It will be presumed that the land described in the petition is the same with that described in the notice, as the descriptions harmonize as far as the former extends. Under certain circumstances an averment fatally defective in a declaration may be remedied by a fuller averment in the replication.

It was proved upon the trial of this case that the premises are situated in the Military Bounty Tract. We take judicial notice of the fact that this entire tract is situated between the Illinois and Mississippi Rivers, and all of it west of the fourth principal meridian. This also identifies the land in question. The judicial proceedings are not defective in the particular under consideration.

The deed of the administrator to Hennen, made pursuant to the sale, is correct. No exception was taken to it. The fact that the report of the sale by the administrator, found in the clerk's office after his death, was not filed, approved, and recorded until the 30th of May, 1851, is unimportant. In Wheaton v. Sexton, there had been a sale under execution and a deed by the marshal. The execution was never returned. This court said: 'The purchaser depends upon the judgment, the levy, and the deed. All other questions are between the parties to the judgment and the marshal. Whether the marshal sells before or after the return, whether he makes a correct return or any return at all to the writ, is immaterial to the purchaser, provided the writ was duly issued and the levy made before the return.'

The notice was correct. This has not been seriously questioned. The word 'recorded' in the sentence at the foot of the list of lands is evidently a misprint for situated. It may be so read or regarded as surplusage. In either case the effect will be the same.

But there is a comprehensive and more conclusive answer to all the objections to the sale which have been considered, and to others suggested which have not been adverted to.

Upon the filing of the notice with the proof of publication, and the subsequent filing of the petition of the administrator for authority to sell, the Circuit Court had jurisdiction of the case. No presumption on that subject is necessary. Jurisdiction is authority to hear and determine. It is an axiomatic proposition that when jurisdiction has attached, whatever errors may subsequently occur in its exercise, the proceeding being coram judice, can be impeached collaterally only for fraud. In all other respects it is as conclusive as if it were irreversible in a proceeding for error. The order of sale before us is within this rule. Grignon's Lessee v. Astor et al. was, like this, a case of a sale by an administrator. In that case this court said: 'The purchaser under it is not bound to look beyond the decree. If there is error in it of the most palpable kind, if the court which rendered it have, in the exercise of jurisdiction, disregarded, misconstrued, or disobeyed the plain provisions of the law which gave them the power to hear and determine the case before them, the title of the purchaser is as much protected as if the adjudication would stand the test of a writ of error; and so where an appeal is given, but not taken, in the time allowed by law.' This case and the case of Voorhees v. The Bank of the United States are the leading authorities in this court upon the subject. Other and later cases have followed and been controlled by them. Stow v. Kimball affirms the same doctrine.

JUDGMENT AFFIRMED.

title: McNitt v. Turner/Opinion of the Court


text: Talk:McNitt v. Turner/Opinion of the Court

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


text:
Taylor v. Taintor

IN error to the Supreme Court of Errors of the State of Connecticut; in which court William Taylor, Barnabas Allen, and one Edward McGuire were plaintiffs in error, and Taintor, Treasurer of the State of Connecticut, was defendant in error. The case arose under that clause of the Federal Constitution which ordains that

'A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime,'

and under the act of Congress passed February 12th, 1793, to carry into effect this provision, and which makes it the duty of the executive of the State or Territory to which a person charged with one of the crimes mentioned has filed, upon proper demand to cause the fugitive to be arrested and the crimes mentioned has fled,

Mr. M. W. Seymour, for the plaintiff in error; Messrs. S. B. Beardsley and N. L. White, contra.

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

title: Taylor v. Taintor


text: Talk:Taylor v. Taintor

title: Talk:Taylor v. Taintor


text:
Taylor v. Taintor/Opinion of the Court

This is a writ of error, issued under the 25th section of the Judiciary Act of 1789, to the Supreme Court of Errors of the State of Connecticut.

The attorney of the State for the county of Fairfield presented to the Superior Court for that county, at the August term, 1866, an information charging Edward McGuire with the crime of grand larceny. A bench warrant, returnable to the same term, was thereupon issued. McGuire was arrested and held in custody. The court fixed the amount of bail to be given at $8000. On the 24th of September, 1866, McGuire and the other plaintiffs in error entered into a recognizance to the defendant in error in that sum, conditioned that McGuire should appear before the Superior Court, to be held at Danbury, in Fairfield County, on the third Tuesday of October, 1866, to answer to the information before mentioned, and abide the order and judgment of the court. McGuire was thereupon released from custody. He failed to appear according to the condition of the recognizance, and it was duly forfeited on the 16th of October, 1866.

This suit was thereupon instituted in the Superior Court of Fairfield County to recover the amount of the obligation. The facts developed at the trial, and relied upon by the defendants to defeat the action were, according to the practice in that State, found and certified by the court, and became a part of the record. So far as it is necessary to state them, they are as follows:

After the recognizance was entered into McGuire went into the State of New York, where he belonged. While there, upon a requisition from the governor of Maine upon the governor of New York, he was seized by the legal officers of New York, and was by them forthwith, on the 19th of October, 1866, delivered over to the proper officers of the State of Maine, by whom he was immediately and against his will removed to that State. The requisition charged a burglary alleged to have been committed by McGuire in Maine before the recognizance in question in this case was taken. At the time of the forfeiture of the recognizance McGuire was, and he has been ever since, legally imprisoned in Maine. In June, 1867, he was tried there for the burglary charged in the requisition, and convicted and sentenced to confinement in the penitentiary for fifteen years, and was, at the time of the trial of this case in the court below, serving out his time under that sentence. Neither of the sureties knew, when they entered into the recognizance, that there was any charge of crime against McGuire other than the one alleged in the information in Connecticut. If the testimony were admissible, the plaintiff proved that the sum of $8000 was placed in the hands of the sureties to indemnify them against the liability they assumed, and if the testimony were admissible, the sureties proved that the money was not placed in their hands by McGuire nor by any one in his behalf; and that, so far as the sureties knew, it was done without his knowledge.

The Superior Court gave judgment for the plaintiff. The defendants thereupon removed the case to the Supreme Court of Errors for Fairfield County. That court affirmed the judgment, and the defendants thereupon brought this writ of error.

The fact that the sureties were indemnified was proper to be considered by the Superior Court upon an application for time to produce the body of McGuire. But it could have no effect upon the rights of the parties in this action, and may therefore be laid out of view.

It is the settled law of this class of cases that the bail will be exonerated where the performance of the condition is rendered impossible by the act of God, the act of the obligee, or the act of the law. Where the principal dies before the day of performance, the case is within the first category. Where the court before which the principal is bound to appear is abolished without qualification, the case is within the second. If the principal is arrested in the State where the obligation is given and sent out of the State by the governor, upon the requisition of the governor of another State, it is within the third. In such cases the governor acts in his official character, and represents the sovereignty of the State in giving efficacy to the Constitution of the United States and the law of Congress. If he refuse, there is no means of compulsion. But if he act, and the fugitive is surrendered, the State whence he is removed can no longer require his appearance before her tribunals, and all obligations which she has taken to secure that result thereupon at once, ipso facto, lose their binding effect. The authorities last referred to proceed upon this principle.

It is equally well settled that if the impossibility be created by the obligor or a stranger, the rights of the obligee will be in nowise affected. And there is 'a distinction between the act of the law proper and the act of the obligor, which exposes him to the control and action of the law.' While the former exonerates, the latter gives no immunity. It is the willing act of the obligor which creates the obstacle, and the legal effect is the same as of any other act of his, which puts performance out of his power. This applies only where the accused has been convicted and sentenced. Before judgment-non constat-but that he may be innocent.

Where a State court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully performed and the jurisdiction invoked is exhausted: and this rule applies alike in both civil and criminal cases. It is indeed a principle of universal jurisprudence that where jurisdiction has attached to person or thing, it is-unless there is some provision to the contrary-exclusive in effect until it has wrought its function.

Where a demand is properly made by the governor of one State upon the governor of another, the duty to surrender is not absolute and unqualified. It depends upon the circumstances of the case. If the laws of the latter State have been put in force against the fugitive, and he is imprisoned there, the demands of those laws may first be satisfied. The duty of obedience then arises, and not before. In the case of Troutman, cited supra, the accused was imprisoned in a civil case. It was held that he ought not to be delivered up until the imprisonment had legally come to an end. It was said that the Constitution and law refer to fugitives at large, in relation to whom there is no conflict of jurisdiction.

The law which renders the performance impossible, and therefore excuses failure, must be a law operative in the State where the obligation was assumed, and obligatory in its effect upon her authorities. If, after the instrument is executed, the principal is imprisoned in another State for the violation of a criminal law of that State, it will not avail to protect him or his sureties. Such is now the settled rule.

When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. In 6 Modern it is said: 'The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge.' The rights of the bail in civil and criminal cases are the same. They may doubtless permit him to go beyond the limits of the State within which he is to answer, but it is unwise and imprudent to do so; and if any evil ensue, they must bear the burden of the consequences, and cannot cast them upon the obligee.

In the case of Devine v. The State, the court, speaking of the principal, say, 'The sureties had the control of his person; they were bound at their peril to keep him within their jurisdiction, and to have his person ready to surrender when demanded. . . . In the case before us, the failure of the sureties to surrender their principal, was, in the view of the law, the result of their own negligence or connivance, in suffering their principal to go beyond the jurisdiction of the court and from under their control.' The court authorities cited are to the same effect.

The plaintiffs in error were not entitled to be exonerated for several reasons:

When the recognizance was forfeited for the non-appearance of McGuire, the action of the governor of New York, pursuant to the requisition of the governor of Maine, had spent its force and had come to an end. McGuire was then held in custody under the law of Maine to answer to a criminal charge pending there against him. This, as already stated, cannot avail the plaintiffs in error. The shortness of the time that intervented between the arrest in New York and the imprisonment in Maine on the one hand, and the failure and forfeiture in Connecticut on the other, are entirely immaterial. Whether the time were longer or shorter-one year or one day-the legal principle involved is the same, and the legal result must be the same.

If McGuire had remained in Connecticut he would probably not have been delivered over to the authorities of Maine, and would not, therefore, have been disabled to fulfil the condition of his obligation. If the demand had been made upon the governor of Connecticut, he might properly have declined to comply until the criminal justice of his own State had been satisfied. This right, it is not to be doubted, he would have exercised. Had he failed to do so, the obligation of the recognizance would have been released. The plaintiffs in error are in fault for the departure from Connecticut, and they must take the consequences. But their fault reached further. Having permitted their principal to go to New York, it was their duty to be aware of his arrest when it occurred, and to interpose their claim to his custody.

We have shown that when McGuire was arrested in New York the original imprisonment, under the information in Connecticut, was continued; that the bail had a right to seize him wherever they could find him; that the prosecution in Connecticut was still pending, and that the Superior Court having acquired jurisdiction, it could neither be arrested nor suspended in invitum by any other tribunal. Though beyond the jurisdiction of Connecticut, he was still through his bail in the hands of the law of that State, and held to answer there for the offence with which he was charged. Had the facts been made known to the executive of New York by the sureties at the proper time, it is to be presumed he would have ordered McGuire to be delivered to them and not to the authorities of Maine. The result is due, not to the Constitution and law of the United States, but to their own supineness and neglect. Under the circumstances they can have no standing in court to maintain this objection.

The act of the governor of New York, in making the surrender, was not 'the act of the law' within the legal meaning of those terms; but in the view of the law was the act of McGuire himself. He violated the law of Maine, and thus put in motion the machinery provided to bring him within the reach of the punishment denounced for his offence. But for this that machinery, so far as he was concerned, would have remained dormant. To hold that the surrender was the act of the law, in the sense contended for, would be as illogical as to insist that the blow of an instrument used in the commission of a crime of violence, is the act of the instrument and not of the criminal. It is true that in one case there would be a will and purpose as to the result in question, which would be wanting in the other, but there would be in both, the relation of cause and effect, and that is sufficient for the purposes of the analogy. The principal in the case before us, cannot be allowed to avail himself of an impossibility of performance thus created; and what will not avail him cannot avail his sureties. His contract is identical with theirs. They undertook for him what he undertook for himself.

The act of the governor of New York was the act of a stranger.

It is true that the constitutional provision and the law of Congress, under which the arrest and delivery were made, are obligatory upon every State and a part of the law of every State. But the duty enjoined is several and not joint; and every governor acts separately and independently for himself. There can be no joint demand and no joint neglect or refusal. In the event of refusal, the State making the demand must submit. There is no alternative. In the case of McGuire no impediment appeared to the governor of New York, and he properly yielded obedience. The governor of Connecticut, if applied to, might have rightfully postponed compliance. If advised in season he might have intervened and by a requisition have asserted the claim of Connecticut. It would then have been for the governor of New York to decide between the conflicting demands. Whatever the decision if the proceedings were regular-it would have been conclusive. There could have been no review and no inquiry going behind it. We cannot hold that Connecticut was in any sense a party or consenting to what was done in New York. It follows that if McGuire had been held in custody in New York, at the time fixed for his appearance in Connecticut, it would not in anywise have affected the obligation of the recognizance.

A different doctrine would be fraught with mischief. It could hardly fail, by fraud and connivance, to lead frequently to abuses, involving the escape of offenders of a high grade, with pecuniary immunity to themselves and their sureties. Every violation of the criminal laws of a State is within the meaning of the Constitution, and may be made the foundation of a requisition. Hence the facility of escape if this instrumentality could be used to effect that object. The rule we have announced guards against such results.

The supposed analogy between a surrender under a treaty providing for extradition and the surrender here in question has been earnestly pressed upon our attention. There, the act is done by the authorities of the nation-in behalf of the nation-pursuant to a National obligation. That obligation rests alike upon the people of all the States. A National exigency might require prompt affirmative action. In making the order of surrender, all the States, through their constituted agent, the General Government, are represented and concur, and it may well be said to be the act of each and all of them. Not so here.

The judgment of the Supreme Court of Errors of Connecticut is

AFFIRMED.

Mr. Justice DAVIS and Mr. Justice HUNT did not sit.

Mr. Justice FIELD (with whom concurred Mr. Justice CLIFFORD and Mr. Justice MILLER), dissenting.

I am unable to concur in the judgment rendered by the majority of the court in this case. I agree with them that sureties on a recognizance can only be discharged from liability by the performance of the condition stipulated, unless that become impossible by the act of God, or of the law, or of the obligee. But I differ from them in the application of their term act of the law. If I understand correctly their opinion they limit the term to a proceeding authorized by a law enacted by the State where the recognizance was executed. I am of opinion that the term will also embrace a proceeding authorized by any law of the United States. A proceeding sanctioned by such law, which renders the performance of the condition of the recognizance impossible, ought, in my judgment, upon plain principles of justice and according to the authorities, to release the sureties.

The Constitution of the United States declares its own supremacy, and that of the laws made in pursuance of it, and of treaties contracted under the authority of the United States. As the supreme law of the land they are, of course, to be enforced and obeyed, however much they may interfere with the law or constitution of any State.

Now the Constitution provides that 'a person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime.' The act of Congress of February 12th, 1793, was passed to carry into effect this provision, and has made it the duty of the executive of the State or Territory to which a person charged with one of the crimes mentioned has fled, upon proper demand to cause the fugitive to be arrested and delivered up. In pursuance of this act the principal on the recognizance in suit was arrested by order of the governor of New York, and delivered up as a fugitive from justice to the officers of the State of Maine. By them he was taken to that State, and having been previously indicted for a felony, was there tried, convicted, and sentenced to the penitentiary for fifteen years. Thus in the execution of a valid law of the United States, passed to carry out an express constitutional provision, the prisoner was taken against his will from the custody of his bail, and placed in the custody of officers of another State, from whom the bail could not recover him to make a surrender pursuant to the condition of their recognizance. It is no answer to say that the prisoner, when called in Connecticut, was detained by the State of Maine, and not by any proceeding or order under an act of Congress, because that proceeding or order had been executed, and was no longer operative. He was taken out of the custody and placed beyond the reach of his bail by a proceeding under the act, and therefore to such proceeding their inability to surrender him must be attributed.

The case is not essentially different from a surrender of a fugitive from justice under an extradition treaty. The United States have such treaties with several European nations, and whatever may have been the extravagant doctrines respecting the rights of the States, at one time in some parts of the country, it will not now be pretended that with the enforcement of such treaties any State, by her laws or judicial proceedings, can interfere. If the fugitive, after his arrival in this country, should commit a crime and be held to bail, it would be a question with the authorities of the General Government whether he should be surrendered under the treaty; but if surrendered it would be manifestly unjust to the bail to hold them to the performance of the conditions of the recognizance.

It seems to me that it would be a more just rule to hold, that whenever sureties on a recognizance are rendered unable to surrender their principal, because he has been taken from their custody without their assent, in the regular execution of a law or treaty of the United States, their inability thus created should constitute for their default a good and sufficient excuse. The execution of the laws and treaties of the United States should never be allowed in the courts of the United States to work oppression to any one.

title: Taylor v. Taintor/Opinion of the Court


text: Talk:Taylor v. Taintor/Opinion of the Court


text:
Page:Dictionary of National Biography volume 59.djvu/42

 Newgate, but afterwards released on their promise to abjure the city until the arrival of King Edward in England (, Chronicle, p. 168).

On 1 May a letter to the mayor, sheriffs, and commons from Edward I, who was absent abroad, summoned them to send four of their more discreet citizens to meet the king at Paris to confer with him, probably as to his approaching coronation (ib. p. 172). Waleys was the chief of the four citizens selected. Towards the close of his mayoralty he broke up the vessels employed as public and official standards of corn measure, and new ones strongly bound with brass hoops were made and sealed (ib. p. 173). Waleys had very close connection with France, and probably possessed private property or had great commercial interests in that country. This is evident from the fact that he was elected mayor of Bordeaux in 1275, the year following his London mayoralty (ib. p. 167).

Waleys was high in the royal favour, and this no doubt procured him his appointment as mayor of London for the second time in 1281, his second mayoralty lasting three years. On this occasion he appears to have been knighted by the king (Cal. of Ancient Deeds, ii. 258). His predecessor, Gregory de Rokesley, had held office for six years, and also succeeded him for a few months, when the king took the entire government of the city into his hands, and appointed a warden to fulfil the duties of mayor. In 1281 the king granted for the support of London Bridge three vacant plots of ground within the city; on two of these plots, at the east side of Old Change and in Paternoster Row, Waleys built several houses, the profits of which were assigned to London Bridge (, Survey, pp. 637, 664). Waleys again proved himself a good administrator. He kept a sharp eye on the millers and bakers, being the first to give orders for weighing the grain when going to the mill, and afterwards the flour; he also had a hurdle provided for drawing dishonest bakers (, Chron. p. 240). During this year he assessed for the king certain plots of land and let them to the barons and good men of Winchelsea for building (Calendar of Patent Rolls, 1281–92, p. 3).

In 1282 Waleys and the aldermen drew up an important code of provisions for the safe keeping of the city gates and the river. These ordinances embraced the watching of hostelries, the posting of sergeants ‘fluent of speech’ at the gates to question suspicious passengers, and the simultaneous ringing of curfew in all the parish churches, after which all gates and taverns must be closed (, Memorials of London, p. 21). In the same year he made provision for the butchers and fishmongers whom he had displaced in 1274 from West Cheap by erecting houses and stalls for them on a site near Wool Church Haw, where the stocks formerly stood, now the site of the Mansion House. In the following year he built the Tun prison on Cornhill, so called from its round shape, as a prison for night-walkers. The building also served the purpose of ‘a fair conduit of sweet waters’ which Waleys caused to be brought for the benefit of the city from Tyburn (, Survey, 1633, p. 207).

He also appears as one of the six representatives of the city sent this year to the parliament at Shrewsbury, these being the first known members of parliament for the city of London (, London and the Kingdom, i. 18). A significant proof of his vigorous administration as mayor is afforded by the king's mandate to the justices on eyre at the Tower, and to all bailiffs, not to molest Waleys ‘for having during the king's absence in Wales, for the preservation of the peace and castigation of malefactors roaming about the city night and day, introduced certain new punishments and new methods of trial (judicia), and for having caused persons to be punished by imprisonment and otherwise for the quiet of the said city’ (Cal. Pat. Rolls, 1281–92, p. 80). In 1284, the last year of his mayoralty, Waleys obtained from the king a renewed grant of customs for extensive repairs to the city wall, and for its extension beside the Blackfriars monastery (ib. p. 111).

His wide dealings as a merchant brought him and Rokesley into conflict with the barons of the Cinque ports as to claims through the jettison of freights during tempests (ib. p. 168). On 17 June 1285 he was one of three justices appointed for the trial concerning concealed goods of condemned Jews, involving a large amount (ib. p. 176). On 18 Sept. Waleys received a grant of land adjoining St. Paul's Churchyard, whereon he built some houses, but these, proving to be to the detriment of the dean and chapter, were ordered to be taken down, an enlarged site being granted to him for their re-erection (ib. pp. 193, 226).

Waleys was much employed in the royal service: in January 1288 he was detained beyond seas on the king's special affairs (ib. p. 291), and in June 1291 he was again abroad with a special protection from the king for one year. On 5 Oct. following he was engaged for the king in Gascony with John de Havering, seneschal of Gascony (ib. p. 446). In April 1294 he had to return to England,


text:
Insurance Company v. Piaggio

ERROR to the Circuit Court for the District of Louisiana, in which court Piaggio brought suit against the New Orleans Insurance Company for a total loss, under two policies of insurance: the one for $7000, on the brig Sicilia, and the other for $5000 on her freight.

The petition alleged that the brig, having sailed from New Orleans for Helsingfors, in the Gulf of Finland, July 20th, 1870, was compelled 'by the perils of the seas and unavoidable accidents,' to put into Matanzas, Cuba; that the plaintiff, upon news of the disaster, gave information to the insurers and asked whether he should abandon the vessel, and was advised so to do; that thereupon he abandoned to the insurers, and claimed for a total loss, and the abandonment was accepted.

It further alleged that the brig, while in the port of Matanzas, was driven ashore by a hurricane, and, with her cargo, wrecked and entirely lost.

It further alleged that the insurers promised to pay the insurance on freight, and informed the plaintiff that they would telegraph to their bankers in London to pay the same to the plaintiff's order, but that soon after they declined to pay or recognize the loss, and recalled their instructions for payment given to their bankers; that when the plaintiff was informed that the insurance on freight would be paid, he drew against the amount on his correspondent in Genoa, to whom he had transferred the certificate of insurance on freight; that his draft was protested, and thereby his credit injured and his business damaged to the extent of $15,000.

It further alleged that the defendants had reinsured on this risk $10,000 with another company on the cargo of the vessel, and had paid to the said company the loss on said risk.

The plaintiff claimed the sums insured on the vessel and freight, and the damage of $15,000 with interest, for the non-payment.

The answer of the defendants put in issue, by denial, all the allegations of the petition, alleged that the policies were void for non-payment of premiums; that the brig was unseaworthy; that she put into Matanzas from unseaworthiness, and not from perils of the seas; and that there, the plaintiff's agents finding it impossible to raise money by bottomry to make her seaworthy, telegraphed a false account of her disasters, and that the defendants, trusting thereto, assented to abandonment, and, to accommodate the plaintiff, were willing to advance funds without waiting for the proofs and delays required by the policy; that learning the truth as to the abandonment, they revoked their acceptance of it, and declined to make the accommodation advances.

The answer then alleged that the policies were vitiated by the brig's deviation in voluntarily putting into Matanzas.

The policy set out in the plaintiff's petition contained clauses:'Warranted not to use ports in the West India Islands between July 15th and October 15th.

'No loss except general average shall in any case be paid unless amounting to 75 per cent., after deducting proceeds of savings, if any, and exclusive of all charges of ascertaining and proving the loss.'

On the trial the defendants requested the court to charge:

'1. That if the jury find that the plaintiff abandoned the voyage when he had no right to make the abandonment of the Sicilia, by reason of repairs needed, falling short of the 75 per cent. of valuation of said Sicilia, under the warranty of the policy on the hull, then the plaintiff cannot recover on the policy for the freight, and his abandonment of the freight-list to the insurers did not bind the latter.'

'The court refused to give this charge because it was in proof that an abandonment had been made and accepted without fraud, and under and in accordance with the advice of the defendant.'

'2. That an abandonment made by plaintiff through error, and accepted through error by the defendant, whether conditionally or unconditionally, is null and void, if not warranted at the time under the policy of insurance.'

'This was refused as irrelevant; no evidence having been adduced of error by either party. The court therefore considered it to be merely a speculative instruction or charge.'

'3. As the policy of insurance warrants that the insurers would be liable only for total loss, or constructive total loss, when the damage exceeded 75 per cent., if the jury find that the damage to the brig Sicilia, when in the port of Matanzas, did not exceed 75 per cent. of the value put on her in the policy after deductions stated in said policy, then the plaintiff had no right to make an abandonment.'

'The court refused to give the charge because it was in proof that an abandonment had been made and accepted without fraud, and under and in accordance with the advice of the defendant.'

'4. That the reinsurance by the defendants of the cargo of the Sicilia to the amount of $10,000, which had been insured by another company, not being made in favor of the plaintiff, who was a total stranger to this transaction, has no connection with the issues raised as to the policy on the hull and freight of the Sicilia, and therefore can have no bearing on the decision of this jury; and that in the absence of proof as to the warranties in said insurance and reinsurance policies of $10,000 on the cargo, it is impossible to determine whether or not the payment and reimbursement of the said $10,000 were properly and correctly made; and that whether properly or improperly made that circumstance cannot militate either for or against either the plaintiff or defendant in the present controversy.'

'The court refused to give the said charge;' no reason being assigned.

To these four refusals the defendants excepted.

The court charged (the defendants again excepting):

'That independent of the abandonment, if the jury believe there was an actual total loss by storm and disaster of the sea, the plaintiff has a right to recover.'

The jury found a verdict in these words:

'That the plaintiff shall recover from defendants the sum of $7000 under his policy of insurance in the hull of the vessel; the sum of $5700, gold coin, under his policy of insurance in the freight-list; together with interest on these two amounts, as prayed for in his petition; and the further sum of $5000 damages, with interest at the rate of 5 per cent. from the date of judicial demand.'

A motion to set aside the verdict and for a new trial being refused, the court thus entered its judgment:

'By reason of the verdict and in accordance therewith it is ordered, adjudged, and decreed, that the plaintiff do have and recover of the defendant the sum of $7000 under his policy on the hull of brig Sicilia; the sum of $5700, gold coin, under his policy on the freight-list; together with 5 ''per cent. interest on said two sums from September 29th, 1870, till paid;'' and the further sum of $5000 damages, with 5 per cent. interest from the 14th of December, the day of judicial demand, till paid, and costs of suit.'The return to this court did not contain any of the evidence given at the trial, which seemed to have occupied several days, with an examination of seven witnesses orally, and numerous documents.

The case came here by writ of error; on the following assignment of errors:

I. The allowance and computation in the judgment of damages, for non-payment of the freight insurance, to wit, $5000, and interest thereon, over and above the full sums insured in both policies and interest thereon.

II. The allowance and computation in the judgment of the loss under the vessel policy, notwithstanding the breach of the warranty against the use of West India ports in that policy, and the loss of the vessel in such a port during such breach.

III. The errors in the refusals to charge, and in the charge, as already set forth in the five bills of exceptions and the foregoing statement.

Mr. W. M. Evarts, for the plaintiff in error:

I. It is not necessary to argue, or adduce authorities for, the proposition that interest is the only damages for the simple non-payment of money according to duty, or to implied or express contract. That the allowance of $5000 as damages, over and above the insurance-moneys, and interest on them, was error, on the face of the record, and without any reference to any possible evidence or ruling at the trial, and that, for this error, the judgment below must be reversed, is indisputable.

II. As to the second ground for a new trial for error apparent upon the record, to wit: the breach of warranty, in the use of the West India port of Matanzas, and the wreck by a hurricane in that port, the only question seems to be as to the consequence of the absence from the record of any evidence bearing upon the point of this resort to the port of Matanzas being voluntary or under stress from perils insured against. But, on the face of the contract, a breach of its warranty arises by the resort to this West India port, and the wreck from peril there supervening. The affirmative proof to defeat this consequence of this apparent breach of warranty is wholly wanting. Presumptively, no such proof was offered at the trial. It is not allowable for the plaintiff in error to incumber the record by all the evidence at the trial upon the motive and to the end of showing that no such proof was given. The defendant in error should have procured the presence of such evidence, if any was given at the trial, by the appropriate applications in the court below or in this court.

III. The errors exhibited on the bills of exception.

1st. The instruction asked for and refused, and made the occasion of the first bill of exceptions, was proper to be given, and the refusal to give it was error. The court put its refusal to give this instruction upon the single ground 'that it was in proof that an abandonment had been made and accepted without fraud, and under and in accordance with the advice of the defendants.' But this was in issue on the pleadings and proofs, and was the very thing to be passed upon by the jury. The court refused a proper instruction, on a question of law, by usurpation of the province of the jury, on a question of fact.

2d. The same observations, in substance, apply to the second bill. A proper instruction, as matter of law, is refused upon an assumption of a conclusion of fact, which belonged to the jury.

3d. The error under the third bill is of the same character as that under the first; the observations made upon that are applicable to this.

4th. The instruction asked for and refused was clearly proper, and the exception in the fourth bill was well taken. The evidence had been taken upon this extraneous transaction, and for the purpose of affecting the verdict of the jury, which it was well calculated to do. The court was rightly called upon to exclude this consideration from affecting the mind of the jury, unless it was, in law, a proper subject for their consideration in this case. It manifestly was not proper, as an element in the jury's conclusions in this case.

5th. The passage in the charge of the judge which is made the subject of the fifth bill, as an abstract and general proposition, may be unobjectionable. But, indisputably, the only 'actual total loss by storms and disaster of the sea,' was by the hurricane in the port of Matanzas, and this naked charge, applied to this state of facts, was equivalent to a peremptory charge that, without regard to the antecedent history of the voyage, or to the warranties of the policies, the plaintiffs had a right to recover for a total loss under both policies. But this depends upon the question whether the total wreck by the hurricane, in the port of Matanzas, was covered or not by the policies, as an original and independent cause of loss. And this depended upon the previous history of the voyage, and could only be disposed of by the verdict of the jury, under proper instructions from the court, covering these anterior considerations.

Mr. T. J. Durant, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Insurance Company v. Piaggio


text: Talk:Insurance Company v. Piaggio

title: Talk:Insurance Company v. Piaggio


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

Due application was made by the plaintiff to the corporation defendants for a policy of insurance upon the brig Sicilia, of which he was the owner, and on the 11th of July, 1870, he effected with the defendants such a contract, for the period of one year, lost or not lost, brig then lying in the port of New Orleans, whereby the defendants insured the vessel against the perils of the seas and other risks of her intended voyages, as more fully appears in the policy.

It also appears that the plaintiff, five days later, having freighted the brig with cotton for Helsingfors, in the Gulf of Finland, also effected insurance, with the defendants, upon her freight list for $5700, payable to his own order in gold, as shown by the certificate filed in the case, which represents and takes the place of a policy as fully as if the property was covered by such an instrument, issued direct to the holder of the certificate.

Well appointed and in good order and condition, the brig, on the 20th of the same month, left her port of departure laden with a valuable cargo of cotton and properly officered and manned, but was subsequently compelled, by perils of the seas and unavoidable accidents, to put into the port of Matanzas, Cuba, in distress and disabled, for the security of the property concerned and the preservation of the lives of those on board [?], that being disabled and in want of repairs she remained in that harbor for that purpose, and that while there, and before her repairs were completed, she was driven ashore by a hurricane, and in spite of every exertion which could be made to save her, was wrecked, and with her cargo, was entirely lost.

Payment of the sums insured being refused, the plaintiff instituted the present suit to recover the amount, claiming also $15,000 in addition thereto, as damages for the delay in fulfilling the contract. Testimony was taken, and the parties went to trial; and the jury, under the instructions of the court, returned a verdict for the plaintiff, and the defendants excepted and sued out the present writ of error.

By the terms of the policy, the brig was valued at $10,000, but the risk taken by the defendants on the vessel was only $7000, as appears by the policy.

Exceptions were taken by the defendants to the refusal of the court to instruct the jury, as requested, and to the instructions given by the court to the jury, and they also assign for error the finding by the jury, of $5000 damages, and the allowance of the same in the judgment of the court, and also, of the allowance in the judgment of the loss under the policy.

These allowances are specified in the verdict, substantially as follows: That the plaintiff shall recover the sum of $7000 under his policy on the vessel, the sum of $5700, gold coin, under his policy on the freight list, with interest, as prayed in his petition, and the further sum of $5000 damages, with interest at the rate of five per cent. from the date of judicial demand.

Judgment was rendered for the plaintiff, as follows: By reason of the verdict it is ordered, adjudged, and decreed that the plaintiff do have and recover the sum of $7000 under his policy on the brig, the sum of $5700, gold coin, under his policy on the freight list, together with five per cent. interest on said two sums from September 29th, 1870, till paid; and the further sum of $5000 damages, with five per cent. interest from the 14th of December, the day of judicial demand, till paid, and costs of suit.

Errors apparent in other parts of the record may be re-examined, as well as those which are shown in the bill or bills of exceptions, and it is too plain for argument that the verdict and judgment are a part of the record. Whenever the error is apparent in the record the rule is that it is open to re-examination, whether it be made to appear by bill of exceptions or in any other manner; and it is everywhere admitted that a writ of error will lie when a party is aggrieved by an error in the foundation, proceedings, judgment, or execution of a suit in a court of record.

Damages were claimed by the plaintiff in this case for alleged loss on account of the failure of the defendants to make payments as stipulated in the policy, and it appears by the verdict that the jury awarded to the plaintiff $5000 on that account, in addition to lawful interest. Apart from that, it also appears that the court, in computing the judgment, allowed the same sum for the same claim.

Interest is allowable as damages in such a case from the time the payments were due, or from demand made, where the defendant refuses to account or make payment, but the plaintiff cannot recover special damages for the detention of money due to him beyond what the law allows as interest. Where a principal sum is to be paid at a specific time, the law implies an agreement to make good the loss arising from a default by the payment of lawful interest. Tested by these considerations, it is quite clear that the act of the jury in allowing the plaintiff $5000 for the detention of the money due under the policies, in addition to lawful interest, and the act of the Circuit Court in including that amount in the judgment, were erroneous; and inasmuch as the error is apparent both in the verdict and in the judgment, it is equally clear that it is a matter which is re-examinable in this court on a writ of error; and, having come to that conclusion, the only remaining inquiry in this connection is what disposition shall be made of the case.

Errors of the kind, it is insisted by the defendants, necessarily require that a new venire shall be ordered, but the act of Congress to further the administration of justice provides that the appellate court may affirm, modify, or reverse the judgment, decree, or order brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the inferior court as the justice of the case may require; and in view of that provision the court is not inclined to adopt the course suggested by the defendants, as it would lead to unnecessary delay and expense.

Verdicts, it is said, are either general or special, and that if there is error in a case where the verdict is general it can only be corrected by a new trial, and it must be admitted that the rule as suggested finds much countenance in the text-books; nor will it be necessary to depart from that rule in the present case. Strictly speaking, a special verdict is where the jury find the facts of the case and refer the decision of the cause to the court, with a conditional conclusion, that if the court is of the opinion, upon the whole matter as found, that the plaintiff is entitled to recover, then the jury find for the plaintiff; but if otherwise, then they find for the defendant.

Examples of special verdicts less formal, however, may be found, and the usual course is to sustain such verdicts if they contain all the facts necessary to a proper judgment between the parties in respect to the matter in controversy. Courts also, in the trial of issues of fact, often propound questions to a jury, and the rule is well settled that such a special finding, even when it is inconsistent with the general verdict, shall control in determining what judgment shall be rendered in the case.

Undoubtedly a special verdict is erroneous if it does not find all the facts essential to the rendering of the judgment; but if it contain all the facts required for that purpose the better opinion is that the court of original jurisdiction may render such judgment as the facts found require, and if they err, and the error is apparent in the record, that such error may be re-examined on writ of error in this court.

Confirmation of this view as the correct one is also derived from the act of Congress which permits parties to waive a jury and submit the issues of fact, in civil cases, to the court, as the provision in that act is that the finding may be general or special, and that it shall have the same effect as the verdict of a jury. Special findings, under that provision, never have a conditional conclusion, and yet the review extends, by the express words of the act, to the determination of the sufficiency of the facts found to support the judgment.

All the facts are found in this case, and they are all apparent in the record, and inasmuch as the question to be determined is what judgment ought to be rendered on those facts, the court is of the opinion that it is not necessary to order a new venire.

Five bills of exceptions were tendered and allowed, as follows: (1.) Because the court refused to instruct the jury that if they found that the plaintiff abandoned the voyage when he had no right to make the abandonment under the policy, then the plaintiff cannot recover for the insurance on the freight list; but the bill of exceptions states that the court refused to give the charge because it was in proof that an abandonment had been made and accepted without fraud and in accordance with the advice of the defendants, which is all that need be said on the subject.

(2.) Because the court refused to charge the jury that an abandonment made by the plaintiff through error and accepted through error by the defendants, whether conditionally or unconditionally, is null and void, if not warranted at the time, under the policy of insurance; but the bill of exceptions states that the court refused so to instruct the jury because no evidence had been given to show error by either party, which is certainly a good reason for declining to give the instruction.

(3.) Because the court refused to instruct the jury substantially as in the first request, and which was declined for the same reason.

(4.) Because the court refused to instruct the jury as requested in respect to a policy of reinsurance executed by the defendants on the cargo of the brig; but the record contains no sufficient information that such an instruction was material to the issues between the parties.

(5.) Because the court instructed the jury that, independent of the abandonment, if they believed there was an actual total loss, by storm and disaster of the sea, the plaintiff had a right to recover. Doubt cannot be entertained of the correctness of that instruction as an abstract proposition, and inasmuch as it is not stated in the bill of exceptions that evidence had not been given sufficient to warrant the jury in passing upon the question, it is plain that it furnishes no proper ground to reverse the judgment.

Deviation is also set up as a defence, but the record contains no evidence upon the subject, nor is any such question presented in any one of the bills of exceptions.

JUDGMENT REVERSED AND MODIFIED, by disallowing the sum of $5000 damages found by the jury and included in the judgment, and the interest allowed on the same, and the cause remanded with directions to enter a judgment for the plaintiff for the residue found by the jury, with interest.


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


text:
Burke v. Smith

APPEAL from the Circuit Court for the District of Indiana, the case being thus:

Burke, Putnam, and others were the equitable owners of a judgment recovered in 1857 against the New Albany and Sandusky Railroad Company. Upon this judgment an execution was issued in 1858, which, on the 1st of December of that year, was returned 'nulla bona.' On the 29th of January, 1868, that is to say, about ten years after the execution had been thus returned unsatisfied, they brought the present suit. It was a bill in chancery against one Smith and some twenty-seven other defendants, and, alleging the insolvency of the company, it sought to subject to the payment of the judgment, rights which, it alleged, the company had against the said defendants. It averred that the defendants, on the 22d of August, 1853, under the general railroad laws of Indiana, organized the above-named railroad company and subscribed to its capital stock, severally, amounts which they had never paid, and the object of the bill was to compel the payment of the debts thus incurred, and the application of the payments to the satisfaction of the complainants' judgment. The facts were these:

On the 22d of August, 1853, under the general railroad laws of the State, the defendants, with others, united in forming articles of association for the incorporation of the New Albany and Sandusky Railroad Company, and severally subscribed to its capital stock in sums varying from $1000 to $5000. [The railroad laws referred to allow, it may be added, no organization of a road until at least $50,000, or $1000 for every mile of the proposed road, shall have been established.] The articles of association contained the following stipulation:

'Provided, however, and it is hereby understood, that if the city of New Albany, in its corporate capacity, shall hereafter take stock in this corporation to the amount of $50,000 or upwards, inasmuch as the present subscribers being residents of, and owning property in said city, will then be under the necessity of contributing still further to the corporation by way of taxation, unless a portion of the present subscription is taken off their hands, the said city shall accept, in part of the amount to be subscribed in its corporate capacity, at its par value, a transfer of any amount of stock now subscribed for by each individual over and above the amount of six shares, or $300, which each such individual may desire or request shall be so transferred.'

There were fifty-five original subscribers, and the aggregate amount of the subscriptions was $148,750. With such a subscription, and under such articles of association, the subscribers became a corporate body. After their incorporation the city of New Albany subscribed $400,000 to the capital stock of the company. This subscription was made on the 19th of November, 1853, and on the 31st of December next following, the directors of the company adopted an order,

'That the original subscribers to the articles of association be permitted, in accordance with the stipulations contained in the articles, to transfer any amount of the stock so originally subscribed by them over and above the amount of six shares, or $300, to the city of New Albany; said city having made a subscription to the stock of said company to the amount of $50,000 and upwards, and that the stock thus transferred be merged in the subscription already made by said city, so that the stock of said city, under her present subscription, with the stock so transferred, shall not exceed $400,000 as subscribed by her.'

The directors of the company, who made this order, were themselves subscribers, like the defendants, for more than six shares, or sums above $300.

So far, there was no controversy respecting the facts. And there was also an 'agreement of record'-a document certified by the clerk of the court below, with the bill, answers, depositions, &c., as part of the full, true, and complete copy and transcript of the record and proceedings in the case-that the defendants transferred to the city of New Albany all the stock subscribed by them in excess of $300 for each, in compliance with the stipulation contained in the original articles of association; that the transfers were made before the 1st day of July, 1854; that none of these original subscribers were ever charged on the books of the railroad company with any greater amount of stock than $300; that the amount of stock charged against each (viz., $300) had been fully paid long before the filing of this bill, and when called by the company, and that such payments had been accepted by the company as full satisfaction of the respective subscriptions.

The question was, whether the defendants were debtors to the railroad company for any excess of their subscriptions above $300.

The court below was of opinion that they were not, and dismissed the bill against them.

The complainants appealed.

Messrs. Burke, Porter, and Harrison, for the appellants:

The defendants confessedly subscribed large sums to the stock of the road, and so organized it. By the laws of Indiana it could not have been otherwise organized. Having organized it and given it the power to incur debts, and it having incurred them, these persons-the solid and solvent subscribers-the men on the faith of whose subscriptions creditors have given money and done work-all at once and suddenly vanish from the scene.

Now are they released?

The directors certainly had no power to release them as against the creditors of the company. This is certain. The argument then will be that the subscribers have made a transfer of their stock to the city, and that the city having assumed their subscription, they are discharged? But the record shows no copy of any transfer. What is said by the clerk under the head of 'agreement of record' constitutes no part of the record at law. That this court cannot notice such a paper was decided in Fisher v. Cockerell, in Suydam v. Williamson, 3 New Orleans v. Gaines, and in other cases.

Then even if a paper transferring the stock were shown, there is no evidence that the city ever accepted the transfer. What power indeed, supposing a transfer to have been attempted to be made-what power had the city in its corporate capacity to accept it? So far as appears it had none.

Then again. The act of the directors releasing the defendants was void, not only on general principles, but also because they were all personally interested in having such an order of release, and in fact all availed themselves of it.

The whole operation is void. It is an attempt upon the part of the directors to allow a cancellation of so much stock, a nominal transfer to the city, but a real blotting out of so much stock; a transfer that would relieve the directors and their fellows, but that would not increase the stock of the transferee. Whatever name may be given such a transaction, its substance and effect, if permitted, would be to reduce the capital of the company and its means of paying its debts and carrying out the objects of the corporation to the extent of the amount so transferred. The directors have no authority to thus dispose of the effects of the corporation.

Mr. M. C. Kerr, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Burke v. Smith


text: Talk:Burke v. Smith

title: Talk:Burke v. Smith


text:
Burke v. Smith/Opinion of the Court

The question to be solved is whether the appellees are debtors to the railroad company for the excess of the subscriptions above $300, made by them to the articles of association. If they are, the complainants have an equitable right to subject those debts to the payment of the judgment they have against the railroad company. And it must also be conceded that if the company has, in fraud of its creditors, released subscribers to its stock from the payment of their subscriptions, the release is inoperative to protect those subscribers against claims of the creditors. Under the law of the State, all railroad companies are required to have a subscription to their capital stock not less than $1000 for every mile of their proposed roads before they may exercise corporate powers. This requirement is intended as a protection to the public, and to the creditors of the companies. And it is clear that the directors of a company, organized under the law, have no power to destroy it, to give away its funds, or deprive it of any means which it possesses to accomplish the purposes for which it was incorporated. The stock subscribed is the capital of the company, its means for performing its duty to the commonwealth, and to those who deal with it. Accordingly, it has been settled by very numerous decisions that the directors of a company are incompetent to release an original subscriber to its capital stock, or to make any arrangement with him by which the company, its creditors, or the State shall lose any of the benefit of his subscription. Every such arrangement is regarded in equity, not merely as ultra vires, but as a fraud upon the other stockholders, upon the public, and upon the creditors of the company.

It is upon these principles that the appellants in this case rely, and the question is whether they are applicable to the facts as found.

That the subscriptions made by the appellees to the articles of association for the incorporation of the company were, according to their terms, not absolute engagements to pay for a greater amount of stock than $300 for each subscriber is undeniable. They were engagements to pay for the number of shares subscribed, only on the contingency that the city of New Albany should not afterwards take stock in the corporation to the amount of $50,000 or upwards, or, if such stock should be taken, on the contingency that they failed to transfer a part of their subscriptions to the city. Such was the letter and the spirit of the contract entered into by each subscriber. Whether the law permitted it to have such a legal effect we will presently consider. But that such was its meaning, independently of any rule of legal policy, is very plain. It is the very language of the articles of association. When, therefore, the directors of the company, on the 31st of December, 1853, ordered that the original subscribers to the articles, in accordance with the stipulation contained therein, be permitted to transfer any amount of the stock (exceeding six shares) subscribed by them to the city of New Albany (that city having made a subscription exceeding $50,000), and ordered that the stock thus transferred be merged in the stock subscribed by the city, the order was no more than allowing the contract to be performed as made. It was no release of any rights which the company had; no abandonment of any resources of the corporation. It was no more than the subscribers, in view of the provisions of their contract, had a right to demand. Unless the contract must be held to have been an absolute undertaking, that each subscriber would himself pay for all the stock subscribed by him, it was fully performed by the payment of $300 and the transfer of the excess to the city to be merged in its larger subscription.

It must, however, be conceded that conditions attached to subscriptions for the stock of a railroad company made before its incorporation have, in many cases, been held to be void, and the subscriptions have been treated as absolute. The question respecting their validity has most frequently arisen when the condition has been that the proposed road should be located in a specified manner, or over a defined line. But other conditions have been held invalid, and have been disregarded by the courts. The reasons for such a ruling are obvious, and they commend themselves to universal approval. When a company is incorporated under general laws, as the New Albany and Sandusky Railroad Company was, and the law prescribes that a certain amount of stock shall be subscribed before corporate powers shall be exercised, if subscriptions, obtained before the organization was effected, may be subsequently rendered unavailable by conditions attached to them, the substantial requirements of the laws are defeated. The purpose of such a requisition is, that the State may be assured of the successful prosecution of the work, and that creditors of the company may have, to the extent at least of the required subscription, the means of obtaining satisfaction of their claims. The grant of the franchise is, therefore, made dependent upon securing a specified amount of capital. If the subscriptions to the stock can be clogged with such conditions as to render it impossible to collect the fund which the State required to be provided before it would assent to the grant of corporate powers, a charter might be obtained without any available capital. Conditions attached to subscriptions, which, if valid, lessen the capital of the company, thus depriving the State of the security it exacted that the railroad would be built, and diminishing the means intended for the protection of creditors, are therefore a fraud upon the grantor of the franchise, and upon those who may become creditors of the corporation. They are also a fraud upon unconditional stockholders, who subscribed to the stock in the faith that capital sufficient would be obtained to complete the projected work, and who may be compelled to pay their subscriptions, though the enterprise has failed, and their whole investment has been lost. It is for these reasons that such conditions are denied any effect.

But the reasons of the rule are totally inapplicable to the present case. The appellees are not asking to diminish the capital of the company by force of any condition attached to their subscriptions. The action of the board of directors permitting a transfer to the city of New Albany of all the stock originally subscribed, in excess of six shares by each subscriber, according to the stipulations of the articles of association, was not a release of any stock subscription, nor was it an attempt to lessen the means of the company to build its road any pay its creditors. We cannot, while recognizing the rule as a sound one, overlook the peculiar facts of this case. Under the articles of association the original subscribers undertook, not that they would respectively pay, at all events, for all the shares mentioned in their several subscriptions, but, in substance and effect, that such a number of shares should be paid for, either by themselves or by the city of New Albany, if it became a subscriber. There was no condition by which the number of shares subscribed and made available could ever be reduced. Had the city taken no stock they would have been liable for all the shares taken by them. It is impossible to see in this any fraud upon the State or upon the creditors of the company. They have all the security in those subscriptions which they whould have had there been no right to transfer to the city reserved. The capital stock is all that it was represented to be when the company became incorporated. The only change is, that a part of it is pledged by the city of New Albany, instead of by these appellees. No capital has been lost by the transfer.

If, then, the reason of the rule invoked by the appellants has no applicability to the facts of this case, the rule itself fails, there is no condition to be stricken from the subscription, and there is no ground for holding the appellees liable beyond the plain letter and spirit of their contract.

It is insisted, however, on behalf of the appellants that there never was any transfer by these appellees to the city of the excess above six shares for each, of the stock mentioned in their subscriptions, and it is denied that we can consider the admission of such a transfer, which appears in the record, as any proof of its having been made. It is said that the alleged admission is an unauthorized certificate of the clerk, which constitutes no part of the record, and we are referred to Fisher v. Cockerell. But that case does not support the appellants. It was an action at common law, in which it was said 'in cases at common law, the course of the court has been uniform, not to consider any paper as part of the record which is not made so by the pleadings, or by some opinion of the court referring to it. . . . The unauthorized certificate of the clerk that any document was read, or any evidence given to the jury, cannot make that document or that evidence a part of the record, so as to bring it to the cognizance of this court.' All the other cases cited were suits at law in which, of course, the evidence could not come upon the record except in the regular manner. A clerk's certificate could not bring it there. But this is a bill in equity. In such a case no bill of exceptions in necessary to bring upon the record the proofs and admissions of the parties. There is the same reason for regarding the admission which appears in this record a part of the record, as there is for considering any one of the depositions. It would be very extraordinary, if parties to a proceeding in equity may not, at the hearing, make an admission of facts, upon which the inferior court may act, and which may be considered on appeal to this court. And it would be still more extraordinary, if appellants, under whose direction a record in chancery had been made up, and who have filed it here without objection, should be permitted to assert for the first time on the argument that the clerk had certified improperly as a part of the record, an admission at the hearing below, which was never made, or which, if made, we are not at liberty to regard. It is not denied that the admission of record, certified by the clerk, was agreed to by the parties, that it was reduced to writing, and entered upon the record, nor is it denied that it was considered by the court below as evidence in the cause, and considered without objection. We must, therefore, hold that it is to be treated as a part of the record now, and if so, it establishes fully the transfer of the stock to the city before July 1st, 1854; that none of the appellees were ever charged with it on the books of the company, and that the transfer was made with the assent of the corporation, constituting with the payment made for the six shares not transferred, full satisfaction of the indebtedness of the appellees, and accepted as such. It is true there appears to have been no written transfer. None was necessary. The appellees had received no certificates. They were not on the books as stockholders for more than six shares each, and from the beginning it was understood and agreed that for all liability beyond that, the city, if it subscribed, was to step into their place.

It is next denied that the city accepted the transfer. To thsis it may be answered that the acceptance is implied in the admission of record. There could have been no transfer without the assent of both parties. More than this. The other evidence tends strongly to show that the mayor and some members of the councils of the city knew of the transfers and assented to them, and the city never dissented from the arrangement.

It is true that a mere assignment of his share by a subscriber does not relieve him from liability until the assignee is substituted in his place. But here the substitution was recognized by the company. The stock was not charged to the appellees on the books, and after the lapse of nine years it is too late to affirm that the transfer was not accepted.

Again, it is argued that the directors of the company were personally interested as original subscribers, and therefore that their order of December 31st, 1853, permitting the transfer was illegal. But if, as we have endeavored to show, the original subscriptions were valid as made, if the stipulation in the articles of association was not prohibited by the law, it needed no such order of the board of directors to validate the substitution of the city for the original subscribers. It matters not then that the directors were interested. Equity would have enjoined them against interference to prevent a transfer, with all its stipulated consequences. The substitution of the city was a matter over which they had no discretionary power.

There is, then, we think, nothing, either in law or in the facts, that can justify our holding that the appellees were indebted to the company on their subscriptions when this bill was filed; nothing to impeach the validity of the arrangement provided for in the articles of association, and carried out afterwards with the assent of the company, by which they were discharged from all liability.

This is sufficient for the case, and if it were not it would be a grave inquiry, whether the laches of the appellants has not been such that they cannot now invoke equitable relief. Their judgment was recovered in 1857, and the return of nulla bona to their execution was made in December, 1858. Before that time the company had become insolvent, and some five years before that time the arrangement had been consummated which they now assail as a fraud upon the creditors. It is incredible that they did not know of the arrangement. The articles of association were on record open to their inspection. Those articles exhibited in prospect precisely what was done. No one could have seen them without having it suggested that the original subscribers had not at first intended to pay for all the stock mentioned in their subscription, and that it was intendell the city should take part of the stock off their hands. The company's books, which they might have seen, would have told them the appellees had paid for only six shares. This was quite sufficient to make inquiry a duty. And had inquiry been made there was not the least difficulty in ascertaining the facts. Yet the present suit was delayed until 1868. True, the appellants' bill alleges the indebtedness of the appellees by force of their contracts. It does not charge a fraud. But it is plain that unless the arrangement by which the subscriptions were merged in that of the city was a fraud upon them their bill must fail. The court must set aside that arrangement or they cannot recover. And the burden is upon them to establish the fraud. Had their bill been framed to set aside the arrangement because of fraud, it must have been held to have been filed too late. The statute of limitations bars actions for fraud in Indiana after six years, and equity acts or refuses to act in analogy to the statute. Can a party evade the statute or escape in equity from the rule that the analogy of the statute will be followed by changing the form of his bill? We think not. We think a court of equity will not be moved to set aside a fraudulent transaction at the suit of one who has been quiescent during a period longer than that fixed by the statute of limitations, after he had knowledge of the fraud, or after he was put upon inquiry with the means of knowledge accessible to him.

But pursue this branch of the case no further. We have already said enough to show that, in our opinion, there was no error in the decree of the court below.

DECREE AFFIRMED.

title: Burke v. Smith/Opinion of the Court


text: Talk:Burke v. Smith/Opinion of the Court