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Dennistoun v. Stewart (59 U.S. 565)/Opinion of the Court

This cause comes before us upon a certificate of division in opinion between the judges of the circuit court of the United States for the 5th circuit and southern district of Alabama.

The evidence before the circuit court on which the division in opinion arose was of the following character:--

The defendant, on the 9th day of September, 1850, at Mobile, in the names of James Reid and Co., of which firm the defendant was a member, drew a bill on Henry Goa Booth, at Liverpool, for the sum of forty-four hundred and seventeen pounds fourteen shillings and eleven pence sterling, payable at sixty days sight, to the order of the drawers in London, on account of 1,058 bales of cotton, shipped by the drawers to the drawee by the ship Windsor Castle.

This bill was indorsed by the defendant, by the name and style of his firm, to the plaintiffs, and, after acceptance, having been returned protested for non-payment, an action of assumpsit was brought for the amount of the bill and charges by the indorsees against the defendant as drawer.

Upon the trial before the circuit court there were introduced and read the testimony of sundry witnesses, examined on the part both of the plaintiffs and the defendant.

The object of the plaintiffs was to sustain their right of recovery upon the bill, by showing that this right had not been lost or impaired by any irregularity or delinquency of the plaintiffs as indorsees and holders of the bill for value.

By the evidence adduced by the defendant it was designed to show that, previously to the purchase of the 1,058 bales of cotton, and as a part of the agreement on which the purchase was to be made, the defendant, or the person or persons by whom the funds for that purchase should be advanced, should hold the bill of lading of the cargo as security for such advances; that this agreement was adopted by the plaintiffs, who required and received the bill of lading as a precedent condition to their purchase of the bills drawn on Booth by the defendant; that the bill of lading thus received as a security, was transmitted by the plaintiffs to a branch of their firm in Liverpool, and by the Liverpool branch, with the knowledge and in violation of that ageement, was surrendered to one Byrne, a creditor of Boothe, and thus diverted from the purposes it was intended to secure.

Upon the instructions prayed from the court to the jury, the court were divided in opinion upon the following questions:--

1. Whether the firm of Dennistoun, Wood, and Co., of New York, or the plaintiffs, were bound to hold the said bill of lading for the shipment on the said Windsor Castle as a security for the bill of exchange described in the declaration, and whether any amount of loss arising to the said defendant from their failure to hold the said bill for the purpose of securing the proceeds of the cotton specified therein, for the payment of the bill of exchange described in the declaration, can be used as a defence against the bill, or any part thereof.

2. Whether the said Dennistoun and Co. were required to hold the said bill of lading as a security for any bill of exchange drawn by the defendant or his agents upon the said shipment of cotton, other than those to which the same was attached, or of which they, the said plaintiffs, had specific and direct notice at the time of the settlement with Byrne in the manner stated in the depositions; and whether notice to Dennistoun, Wood, and Co., in New York, was operative as a notice to the plaintiffs in Liverpool, though no notice was received by the house in Liverpool of such outstanding bill before said settlement.

3. Whether, if the plaintiffs surrendered the said bill of lading to the said Byrne, under a promise from him that the proceeds of the cotton should be applied to the payment of bills that might come forward, and that this bill should subsequently come forward; and that the plaintiffs have failed to sue said Byrne, or to take any other legal proceeding against him, and that the said Byrne has the proceeds of the cotton more than sufficient to pay the bill, these facts or any other facts in connection therewith that are contained in the said testimony, offer any defence against the case of the plaintiffs.

4. Whether any view of the evidence introduced upon the said trial and hereto attached, would warrant the jury in finding for the defendant, upon this point of the defence to the case of the plaintiffs.

5. And the further question arose, whether the statute of Alabama regulating the damages upon bills of exchange like the present, returned under protest, regulates the rate of damage in this case.

We think that our jurisdiction of the questions certified on the record of this cause, is forbidden by previous decisions of this court, bearing upon those questions considered separately, as well as upon the case as presented by them in an aggregate point of view.

In the interpretations by this court of the act of congress of April 29, 1802, authorizing divisions of opinion at circuit to be certified, the following requisites have been prescribed as indispensable to the jurisdiction of this court over questions upon which the judges shall have been opposed in opinion.

1. They must be questions of law and not questions of fact not such as involve or imply conclusions or judgment by the judges upon the weight or effect of testimony or facts adduced in the cause. Vide Wilson v. Barnum, 8 How. 258. And the question or questions upon which the judges were opposed in opinion must be distinctly and particularly stated with reference to that part of the case upon which such question or questions shall have arisen. Vide The United States v. Briggs, 5 How. 208. It is said by the chief justice in delivering the opinion of the court in this case, 'we are not authorized to decide in such cases unless the particular point upon which the judges differed is stated;' again he says: 'the difference of opinion is indeed stated to have been on the point whether the demurrer should be sustained. But such a question can hardly be called a point in the case within the meaning of the act of congress, for it does not show whether the difficulty arose upon the construction of the act of congress on which the indictment was founded, or upon the form of proceeding adopted to inflict the punishment, or upon any supposed defect in the counts in the indictment. On the contrary, the whole case is ordered to be certified upon the indictment, demurrer, and joinder, leaving this court to look into the record to determine for itself, whether any sufficient objection can be made in bar of the prosecution.

2. The points stated must be single, and must not bring up the whole case for decision.

In the establishment of this position, the rulings of this court have been reiterated, and most explicit.

Beginning with the case of the United States v. John Bailey, 9 Pet. 257, it is in that case declared by the late chief justice, that 'the language of the 6th section of the act to amend the judicial system of the United States, shows conclusively, that congress intended to provide for a division of opinion on single points which frequently occur in the trial of a cause; not to enable a circuit court to transfer an entire cause into this court before a final judgment; a construction which would authorize such a transfer would counteract the policy which forbids writs of error or appeals until the judgment or decree be final.' To the same effect, and enunciated in language equally if not even more explicit, will be found the decisions of Adams and Co. v. Jones, 12 Pet. 207; of White v. Turk et al. Ib. 238; of Nesmith v. Sheldon et al. 6 How. 41; of Webster v. Cooper, 10 Ib. 54.

Upon the trial in the circuit court the examination of witnesses was introduced and relied on both by plaintiffs and defendant to show the nature of the agreement upon which the cargo of The Windsor Castle was purchased, and upon which the plaintiffs consented to purchase and did purchase the bills drawn by the defendant upon Booth; the character of the security proffered and said to have been accepted in the bill of lading for the indemnity of the plaintiffs in purchasing the bills drawn upon Booth, and the obligation of the same plaintiffs not to surrender that security, nor to use it to the detriment of the defendant. The case was not placed before the judges upon any general or settled principle of the law-merchant, nor was their opposition in opinion founded upon a case moulded and governed simply by that law, but they have divided upon a case which was or might have been affected by facts heard in evidence, the influence of which facts, as controlling the acts and obligations of the parties, fell peculiarly and properly within the province of the jury.

Again, we do not think that the certificate of the judges of the circuit court conforms to the settled interpretation of the act of congress as expounded by the cases cited, in presenting to this court any single or specific question of law arising in the progress of the cause, but that it refers to this court the entire law of the case as it might arise upon all the facts supposed by the court, and which have not been found by the jury. We are therefore of the opinion that this court cannot take jurisdiction of this case as certified from the circuit court, but that it should be remanded to that court to be proceeded in according to law.


text: Talk:Dennistoun v. Stewart (59 U.S. 565)/Opinion of the Court

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text:
Steamer Oregon v. Rocca

THESE were appeals from the circuit court of the United States for the southern district of Alabama.

In the first case, a libel was filed in the district court of the United States for the southern district of Alabama claiming damages resulting from a collision between the schooner William Ozman and the steamer Oregon, in the bay of Mobile, on the 8th of September, 1849, whereby one hundred and forty bales of cotton on board said schooner were injured and in part destroyed.

In the second, a like libel was filed by Turner and Twiford as the owners of the schooner, claiming damages for injuries done to the vessel.

In January, 1851, the district judge decreed in favor of the libellants, in the first-named case for $6,599.64, and in the second for $1,989.47.

From these decrees the owners of the steamer appealed to the circuit court.

On the 21st of April, 1855, the circuit court passed an order in each case reciting that 'the said cause being submitted to the court, a decree is rendered pro forma, the presiding judge having been of counsel for the defendants, affirming the judgment that was rendered in this case,' namely, & c. &c.

An appeal from these decrees brought the cases up to this court.

The attention of the court having been called to this state of affairs, after consultation, the following order was passed in each case. Order.

It is now hear considered by the court that although it appears from the record that the decree of the circuit court in this cause was entered pro forma, yet that this court has jurisdiction to try and determine the case. Whereupon it is now here ordered by the court that this cause be and the same is hereby set down for argument next after the case fixed for to-day.

Dissenting-Justices, DANIEL and CATRON.

The cases were argued by Mr. Johnson, a brief being also filed by Mr. Nelson, for the appellants, and by Mr. Phillips, for the appellee.

Mr. Justice McLEAN delivered the opinion of the court.

title: Steamer Oregon v. Rocca


text: Talk:Steamer Oregon v. Rocca

title: Talk:Steamer Oregon v. Rocca


text:
Steamer Oregon v. Rocca/Opinion of the Court

These are appeals in admiralty, from the circuit court for the southern district of Alabama.

The first case is an appeal from the decree of the circuit court for damages resulting from a collision between the schooner William Ozman and the steamer Oregon, in the bay of Mobile, on the 8th of September, 1849, whereby one hundred and forty bales of cotton on board said schooner, alleged to belong to the appellees, were injured, and in part destroyed.

A similar libel was filed by the appellees as the owners of the schooner, claiming damages for the injuries done to the vessel. The libels are substantially the same, and they both rest on the same evidence.

The collision took place in the bay of Mobile, where it is eleven miles wide, and sufficient depth of water for the navigation of vessels. The schooner was sailing down the bay before the wind at the rate of six miles an hour. The Oregon was on her passage from New Orleans to Mobile, and was running at the rate of eight miles per hour. It was a starlight night, and the moon also shone. The collision occurred before daylight; but the vessels in approaching each other were seen from a mile and a half to two miles. Under such circumstances, it is extraordinary that they should come in contact.

The witnesses on board The Oregon say, that as the vessels approached each other, the schooner suddenly changed her course, which caused the collision; whilst the witnesses on board the schooner state, it was occasioned by a change of her course by the steamer. In such a conflict of testimony, where the vessels were both steamers or sailing vessels, and there were no leading facts for discrimination, fault would be chargeable to both vessels. But in the case before us the vessels, in regard to a collision, occupy a very different relation to each other. The steamer, having the propelling power, is under the control of her pilot. Her course may be changed, and her progress checked or arrested. Having this power to avoid a collision with a vessel propelled by the wind, she is generally chargeable with fault, when such an occurrence happens. The exception to this rule must be clearly established, by strong circumstances, to excuse the steamer.

The vessels in question saw each other at the distance of more than a mile, probably a mile and a half to two miles. The Oregon was steering near a due north course; the course of the schooner was south. Both vessels continued their course until they came within one hundred and fifty yards of each other. As evidence that the steamer changed her course the fact is relied on that the schooner ran into the steamer, a little forward of midships, with her bow. This result might, possibly, have followed a change of course by the schooner. But, as the movement of the steamer was more rapid than the schooner, such an occurrence would not be so likely to happen, as an attempt by the steamboat to pass the bow of the schooner.

Several experts were examined on both sides to show that the theory of each is wrong, judging from the injury received by The Oregon. The witnesses give their opinions without reserve on this subject. We derive but little light from this part of the examination.

In St. John v. Paine, 10 How. 557, this court say: 'As a general rule, therefore, when meeting a sailing vessel, whether closehauled or with the wind free, the latter has a right to keep her course, and it is the duty of the steamer to adopt such precautions as will avoid her.' Practically, when a rule for this purpose is laid down, it is rendered ineffectual by admitting exceptions to it. The mind begins to waver as soon as the danger arises, and the exception, rather than the rule, becomes a subject of solicitude with the masters of both boats; and this, practically, annuls the rule, and causes the movements of both vessels to be uncertain. If the rule were absolute, and an insuperable difficulty should prevent one of the boats from observing it, it would be safer and better to slow the vessel or stop it, until the danger shall be past. This would occur so seldom as to be inappreciable, when compared to the safety it would secure. The rule adopted by the Trinity masters, and sanctioned by this court, is the safe one, that when two vessels on opposite tacks are approaching each other, each should turn to the right, passing each other on the larboard side. This rule is too simple to be misunderstood, and if observed, collisions would not occur between moving boats, whether propelled by sails or steam. The rule once established, every deviation from it should be chargeable as a fault.

The rule of this court is, when a steamer approaches a sailing vessel, the steamer is required to exercise the necessary precaution to avoid a collision; and if this be not done, prim a facie the steamer is chargeable with fault. Whether this rule be regarded or the weight of the testimony, we think, in the present case, The Oregon was in the wrong. The decrees of the circuit court, are, therfore, affirmed.

Mr. Justice CATRON and Mr. Justice DANIEL dissented.


text: Talk:Steamer Oregon v. Rocca/Opinion of the Court


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Ogilvie v. Knox Insurance Company (59 U.S. 577)

THIS case came up from the circuit court of the United States for the district of Indiana, upon a certificate of division in opinion between the judges thereof.

As the record was very short, it is thought proper to insert the whole of it.

Be it remembered, that amongst the records of the United States circuit court for the seventh judicial circuit and district of Indiana, begun, continued, and holden at Indianapolis, in said district, on the first day of June, in the year of our Lord 1855 that being the eleventh day of said term of said court-before the Honorable John McLean and the Honorable Elisha M. Huntington, judges of said circuit and district, is the following order, to wit:

ADAM OGILVIE et al.  }

v.   }

THE KNOX INSURANCE COMPANY et al. }

Chancery.-No. 3.

Now at this time come the parties, and the judges of this court being opposed in opinion on certain questions arising in this cause, they order and direct that the following statement of the matters and questions upon which the opinions of the judges are so opposed be entered upon the record of this court, and that the same be certified under the seal of this court to the supreme court of the United States, to be finally decided.

OGILVIE and others, complainants,}

v.}

THE KNOX INSURANCE Co., Cullom and others, defendants.}

The complainants are the several creditors of the Knox Insurance Company, holding judgments and executions returned 'no property,' &c., against the company. Cullom and the other defendants, twenty-five in number, are charged as stockholders in default in the payment of their several stock subscriptions.

The bill charges substantially as follows:--

1. That some time before the 12th of February, 1850, the company was duly organized under its charter, and had authority to receive further subscriptions of stock; and that afterwards, at various times, between that time and the 1st of June, 1850, Cullom and the other defendants, severally, became subscribers for stock, and either paid in cash or secured by note or bill of exchange ten per cent. of the amounts severally subscribed, and for the balance made their notes or bills; and that the bills of exchange made for the ten per cent. was renewed by other bills of exchange drawn in September and October, 1850, and the bill sets out all the securities remaining due and unpaid.

2. That the complainants are creditors of the company by reason of losses on policies issued by the company, at various times, after the subscriptions of the defendants, and the judgments and executions are stated.

3. That the company is destitute of property subject to execution.

4. That the company has neglected to enforce the collection of the money due from the defendants.

5. That the defendants refuse to pay, on the pretence that their subscriptions were procured by means of certain false representations concerning the situation, prospects, and actual business of the company.

7. And that the complainants are advised, that it is not material to them or to others who have dealt with the company, how or why the defendants became stockholders; that, by becoming such, the defendants gave credit to the company, by means whereof the complainants were induced to deal with it.

8. That of the defendants, Battorff, Cullom, Hughes, Sparkes, and Savitz, and one Kegwin, a debtor, subscriber not made a party because a citizen of Kentucky, acted as officers of the company throughout the year 1850.

9. And that the defendants, nor any of them, did not, at any time in any manner, attempt to inform the public of the alleged facts now set up in defence.

The prayer is that the defendants pay, &c., and for general relief. The Knox Insurance Company answered, and admitted generally the facts stated in the bill, &c. Cullom and the other defendants severally answered. The answers admit the execution of the securities by the defendants on account of the stock subscribed by them, and set up as a defence substantially the following: That Robert N. Carnan was an agent of the company to procure subscriptions of stock, and as such, in February, 1850, made to defendants certain false representations, by which they were induced to subscribe for said stock, and give their said notes and bills. Their representations were as to the amount of stock then subscribed and secured at Vincennes, and as to the amount of funds on hand; and that defendants had not at that time any means of knowing the accuracy of these representations.

The depositions of Cullom, Savitz, and Schwartz (three of the defendants) were taken and offered to be read in evidence in behalf of the other defendants, but not in behalf of themselves, to prove the allegations of fraud set out in the answers. The complainants objected to the competency of said witnesses, because they were parties to this action, and the objections by consent of parties were reserved to the hearing.

At the May term, 1854, this cause was submitted to the court on the bill, the answers, and the depositions, including the depositions of Cullom, Savitz, and Schwartz, which were then read, subject to the objections above mentioned; and after argument, the said cause was continued under advisement to the November term following.

At the November term, 1854, the cause was continued to the May term, 1855, under advisement.

And now, at the May term, 1855, under the pleadings and on the state of facts above set forth, the following questions occurred:

1. Are the depositions of said Cullom, Savitz, and Schwartz, under the circumstances of this case, and to the effect above stated, competent as evidence for their co-defendants? And, on this question, the opinions of the judges were opposed.

2. Will the fraud of the agent of the Knox Insurance Company, in procuring said subscriptions, notes, and bills, if sufficient to avoid said subscriptions, notes, and bills, as against said Insurance Company, be a defence against the complainants in this suit.

And on this question the opinions of the judges were opposed.

Whereupon, it is ordered, according to the request of the complainants, and to the law in that case provided, that the foregoing statement of the pleadings and facts, which is made under the directions of the judges, be certified under the seal of this court to the supreme court to be finally decided.

I, Horace Bassett, clerk of said court, do hereby certify, that the above and foregoing is a true and correct copy from the records now in my office.

In witness whereof, I have hereto set my hand and affixed the seal of said court, on this sixth June, in the year of our Lord one thousand eight hundred and fifty-five.

H. BASSETT, Clerk.

[L. S.]

Mr. Justice DANIEL delivered the opinion of the court.


text: Talk:Ogilvie v. Knox Insurance Company (59 U.S. 577)


text:
Ogilvie v. Knox Insurance Company (59 U.S. 577)/Opinion of the Court

The complainants, by bill in equity, claim an indemnity for losses upon policies issued to them by the company. They allege that the company by its charter, were authorized after their organization, to increase the amount of their stock by further subscriptions thereto. That in virtue of the authority of this permission, several individuals who are made defendants to the bill, did in June, 1850, subscribe for shares in the company; that they had paid in cash a portion of those shares, and had executed for the residue securities which were still unpaid. The bill further alleges, that the company are destitute of funds or property which can be reached by execution, and prays that the amounts subscribed by the individual defendants as stockholders, and which are still unpaid, may be applied to the satisfaction of the demand of the complainants.

The answer of the company, which is not made a part of this record, is stated to contain a general admission of the charges in the bill. The individual defendants, whilst they do not deny their subscription to the stock of the company, nor their execution of the securities for the payment of that subscription, deny their liability to payment thereof upon the ground that their subscription, and the execution of those securities, were obtained from them by fraudulent representations by the agent of the company, as to the amount of the stock actually subscribed, and as to the funds possessed by the company. The depositions of three of the individual defendants were offered in evidence on behalf of others, who were co-defendants, to prove the fraud in the agent of the company alleged in the answers, and were excepted to as incompetent evidence. But the facts stated by these witnesses are not set forth in the record. At the hearing the following order was made by the court, viz: And now at the May term 1855, under the pleadings and on the facts above set forth, the following questions occurred:--

1. Are the depositions of the defendants, Savitz, Cullom, and Schwartz, under the circumstances of this case and to the effect above stated, competent as evidence for their co-defendants?

2. Will the fraud of the agent of the Knox Insurance Company in procuring said subscriptions, notes, and bills, if sufficient to avoid the said subscriptions, notes, and bills, as against the said insurance company, be a defence against the complainants in this suit?

Upon the first question propounded by the certificate in this case, we deem it unnecessary to express an opinion, because, whatever might be the opinion of this court as to the degree of interest which shall disqualify a witness, we consider the solution of any such question as irrelevant, under the considerations by which our opinion upon this case as presented to us must be controlled.

The foundation of the case certified is, first the assumption of fraud practised by the agent of the insurance company; and, secondly, an inquiry as to the liability of the company resulting from the connection of the company as principal with their agent, and from the character of the fraud assumed as above.

The question of fraud or no fraud, is one necessarily compounded of fact and of law; and without a correct and precise knowledge of the facts from which the legal conclusion should be deduced, it is not easy to perceive how any legal conclusion can be reached.

In this case, as certified, there is no fact shown by which the precise connection of this alleged agent with the company is established; or the character or extent of any representations said to have been made by him, and upon which it is assumed that the company may be bound. There is nothing then before us upon which this court could deduce any inference or conclusion properly applicable to the case as it really exists. The question propounded, therefore, appears to be one that is entirely general and abstract, and which can admit of no answer but one which is equally abstract and general, and which may in truth have no application to the case. We therefore think that this certificate admits of no other answer than an order that the case be remanded to the circuit court to be proceeded in according to law.


text: Talk:Ogilvie v. Knox Insurance Company (59 U.S. 577)/Opinion of the Court


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Culbertson v. Steamer Southern Belle

THIS was an appeal from the circuit court of the United States for the eastern district of Louisiana.

The facts of the case are stated in the opinion of the court.

It was argued by Mr. Benjamin and Mr. Vinton, for the appellant, and by Mr. Crittenden, for the appellees, upon which side there was also an argument filed by Mr. Pike.

Mr. Justice McLEAN delivered the opinion of the court.

title: Culbertson v. Steamer Southern Belle


text: Talk:Culbertson v. Steamer Southern Belle


text:
Culbertson v. Steamer Southern Belle/Opinion of the Court

This is an appeal, in admiralty, from the decree of the circuit court, for the eastern district of Louisiana.

The libel states that the libellant was the owner of a flat-boat, called The Rainbow, with a cargo of the value of three thousand dollars and upwards; that the said boat, with its cargo, being a stanch vessel of its kind, with an efficient crew, on a voyage down the Mississippi River, was moored, at night, at Grand Gulf, in the proper and usual place for flat-boats, and securely tied to the bank of the river; that while so fastened, close to the shore, the steamer Southern Belle, a regular packet on said river, in attempting to land at the town of Grand Gulf, run into and sunk the flat-boat, which caused the total loss of the boat and cargo; that the steamer was out of its place and carelessly managed, by reason of which the collision occurred. The libellant claims damages, &c.

The owners of the steamboat, in their answer, allege that she plied as a regular packet between New Orleans and Milliken's Bend, in Louisiana; that in ascending the river on the 3d of January, 1853, shortly before daybreak, she approached the town of Grand Gulf; that, in drawing near the wharf-boat, used as a landing, it was discovered that another steamer was fastened to the wharf; that as the wind was high toward the shore it was deemed unsafe to make fast to the steamer; The Southern Belle, therefore, dropped down, with the intention of coming in astern of the steamer, and below the wharf-boat; that in making this change, the flat-boat was first seen lying close under the high bank of the river, about thirty yards below the wharf-boat; that an attempt was immediately made to back out and avoid the collision, which could not be done, as the wind blew strongly; that the place occupied by the flat-boat was known to be the cotton landing, where The Southern Belle regularly landed every trip to take cotton on board; that the place appropriated for flat-boats was about three hundred yards above the wharf-boat; that the master of the flat-boat was notified before the collision; that his boat was not moored in its proper place, and that he neglected to keep a light, &c.; that the collision was caused, not by any negligence or want of skill on the part of the crew and officers of The Southern Belle, but in consequence of the negligence of the master and crew of the flat-boat, &c.

The district court decreed in favor of the libellant, for the amount of the damage sustained, which decree was reversed on an appeal to the circuit court. The latter decree is now before us on an appeal.

An ordinance of the town of Grand Gulf, passed in 1838, was given in evidence, relating to the division of the landings for different kinds of boats. In this ordinance, the landings for steamboats, keel-boats, and flat-boats, were designated, and the duties of the harbor-master were defined. An objection by the respondent being made, that no sufficient proof had been offered as to the power of the town to pass the ordinance; the objection was obviated by the fact in the record, which showed that the respondent had introduced the ordinance as evidence. It was then insisted that the ordinance had fallen into disuse by common consent, and could not be considered as evidence of a usage or law. But from the evidence it would seem that the duties of the harbor-master were performed, and that the places of landing for the different boats were generally understood.

Whether a rule on this subject be established by an ordinance or general usage is immaterial, if the regulation has been so made as to be generally known; and this seems to have been the case at Grand Gulf, in regard to the ordinance in question.

The Rainbow arrived, and was moored within the ground designated for flat-boats, and was fastened to the bank the evening which preceded the morning of the collision. The Southern Belle, in ascending the river, arrived at Grand Gulf about daylight-some of the witnesses say a little before, others a little after. It appears that the moon was shining, and that, in passing the flat-boat, it was light enough to read from it the name of The Southern Belle, on her wheel-house, some hundred yards from the shore. The pilot of the steamer intended to land at the steamboat wharf, three hundred and thirty feet above the place where the flat-boat was fastened. But, in approaching, the wharf, he discovered The Atlantic steamer, with cattle on board, occupied it; and the wind being high, he was afraid that an attempt to land, so as to fasten to The Atlantic, might do damage, at least, to the cattle on board of that boat. To avoid this, orders were given to back the boat, and land below the wharf. In doing this, the control of the boat was lost, and the wind to the shore being high, The Southern Belle was thrown against the flat-boat, which immediately sunk her. As the steamer was falling back, it is alleged the flat-boat, for the first time, was discovered; but it was too late, under an adverse wind, to avoid the collision. George W. Smith says, The Southern Belle, by keeping on her steam, might have landed above the wharf-boat. That landing, for three hundred yards, is as good as the landing below.

At the time the steamer passed within one hundred yards of the flat-boat, it could be seen two hundred yards or more. A witness states at the time, he could distinctly see across the river. It appears from some of the witnesses, that there was space enough to land the steamer below the wharf-boat, and above the flat-boat.

Sometime during Monday night, a floating log struck the bow of The Rainbow, so as to break a hole through it, but the damage in a short time was repaired. The bow was turned down the stream to avoid the force of the current.

It is objected that the flat-boat had no lights. She had a light on deck, as proved by her captain and another witness, fifteen minutes before the collision, and at the time it occurred; but as she was fastened to the shore, and from the weight of evidence was in her right place, a light was not necessary. Where a boat is anchored in the path of vessels, a light is indispensable; but it is not required where the boat is fastened to the shore, especially at a place set apart for such boats.

When a steamer is about to enter a harbor, great caution is required. There being no usage as to an open way, the vigilance is thrown upon the entering vessel. Ordinary care, under such circumstances, will not excuse a steamer for a wrong done. A vessel tied to the shore is helpless. No movement can be made by it to avoid an entering boat; therefore, the whole responsibility rests on such boat.

It is admitted that where a collision occurs, as the result of uncontrollable circumstances, no responsibility attaches to either party; but this cannot be said of the respondent. The evidence shows no fault in the flat-boat, but there was fault in the steamer. The wind was high when she approached the landing this should have produced in her officers the utmost vigilance. That they were sensible of this, was shown by their not attempting to fasten to The Atlantic. But they were highly culpable in not keeping up the steam, so as to have the control of their boat. The river was open, so that, had the steam power been kept up, the boat might have been turned against the wind, and made a safe landing. But her headway had been lost by backing, so that she became as a log driven by the winds and waves, and in this manner was thrown upon the flat-boat.

The evidence authorizes the inference that the flat-boat was seen from on board the steamer as she passed it in running up to the wharf. It is inconceivable that others should be able to see the opposite shore of the river, and for a hundred and fifty yards plainly discern the flat-boat from the steamboat wharf, while the officers of the steamer, in passing so near the shore, should not have observed it. The responsible officers of a steamer, when about to land, are not presumed to close their eyes; on the contrary, all experience requires an exercise of uncommon vigilance. Landing a boat, especially when the wind is high, is always attended with more or less danger. After making due allowance for the lights of the steamer, which enabled persons from the flat-boat or wharf to see the steamer, and read her name while passing, the vision of those on board the steamer could not have been so defective, or blinded by her lights, as not to perceive the flat-boat. The captain of the steamer was not sworn, and from this a strong presumption arises that his evidence would have been against his owners. He must have been on the alert in landing, as his duty required, and indeed as the evidence shows he was.

There is no ground of suspicion that the officers of The Southern Belle designed to injure The Rainbow-on the contrary, when it was too late, they endeavored to avoid the collision. Their fault consisted in not landing above the wharf-boat, or in not keeping up the steam, so as to give them the control of the boat. The flat-boat was plainly discernible from the wharf-boat; and if the officers of the steamer did not see it, it was because they were wanting in vigilance. But whether they saw it, or not, the respondents are liable for the damage done. The decree of the circuit court is reversed.


text: Talk:Culbertson v. Steamer Southern Belle/Opinion of the Court


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Page:Syria, the land of Lebanon (1914).djvu/153

THE RICHES OF DAMASCUS of the East who have journeyed far to visit what they firmly believe to be the world's largest and most beautiful city. Long caravans, weary, dusty and heavily laden, are led Into the Meidan by wild-looking, shaggy Bedouins. A little flock of sheep on its way to the slaughter-house Is driven by no gentle shepherd, but a black-bearded giant armed with rifle and dagger and club. Groaning camels kneel in the street while Immense sacks of wheat are untied from their backs and rolled into the vaults of the grain-merchants. We see here the choicest mares of Arabia ridden by tall, stalwart Hauran Druses whose cruel, handsome faces, wrapped around with flowing headgears of spotless white, look down upon the hurrying crowds with a haughty contempt. Yonder group of strangely dressed fellows with red and white cloths bound about their brows are Chaldeans from Baghdad. The shops here seem very poor and shabby in comparison with the bazaars of the older quarters; but the simple country folk, and even the proud Bedouin Arabs, stand spellbound before the astounding wealth and bewildering tumult of the great city.

The south end of the Meidan is known as the Gate of Allah—though it has no gate; for it is here, amid impressive ceremonies, that there starts the annual Pilgrimage to Mecca. Back to the same Bab [ 115 ]


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Page:EB1911 - Volume 05.djvu/238

 Cod-fishing formed the staple industry, and a large contraband trade in French wines, brandy and sugar, was carried on with the English colonies to the south. In 1745 it was captured by a force of volunteers from New England, under Sir William Pepperell (1696–1759) aided by a British fleet under Commodore Warren (1703–1752). By the treaty of Aix-la-Chapelle, the town was restored to France; but in 1758 was again captured by a British force under General Sir Jeffrey Amherst and Admiral Boscawen. On the conclusion of hostilities the island was ceded to England by the treaty of Paris; and on the 7th of October 1763 it was united by royal proclamation to the government of Nova Scotia. In 1784 it was separated from Nova Scotia, and a new capital founded at the mouth of the Spanish river by Governor Desbarres, which received the name of Sydney in honour of Lord Sydney (Sir Thomas Townshend), then secretary of state for the colonies. There was immediately a considerable influx of settlers to the island, which received another important accession by the immigration of Scottish Highlanders from 1800 to 1828. In 1820, in spite of strong opposition, it was again annexed to Nova Scotia. Since then, its history has been uneventful, chiefly centring in the development of the mining industry.

 CAPE COAST, a port on the Gold Coast, British West Africa, in 5° 5′ N., 1° 13′ W., about 80 m. W. of Accra. Pop. (1901) 28,948, mostly Fantis. There are about 100 Europeans and a colony of Krumen. The town is built on a low bank of gneiss and micaceous slate which runs out into the sea and affords some protection at the landing-place against the violence of the surf. (This bank was the Cabo Corso of the Portuguese, whence the English corruption of Cape Coast.) The castle faces the sea and is of considerable size and has a somewhat imposing appearance. Next to the castle, used as quarters for military officers and as a prison, the principal buildings are the residence of the district commissioner, the churches and schools of various denominations, the government schools and the colonial hospital. Many of the wealthy natives live in brick-built residences. The streets are hilly, and the town is surrounded on the east and north by high ground, whilst on the west is a lagoon. Fort Victoria lies west of the town, and Fort William (used as a lighthouse) on the east.

The first European settlement on the spot was that of the Portuguese in 1610. In 1652 the Swedes established themselves here and built the castle, which they named Carolusburg. In 1659 the Dutch obtained possession, but the castle was seized in 1664 by the English under Captain (afterwards Admiral Sir) Robert Holmes, and it has not since been captured in spite of an attack by De Ruyter in 1665, a French attack in 1757, and various assaults by the native tribes. Next to Elmina it was considered the strongest fort on the Guinea Coast. Up to 1876 the town was the capital of the British settlements on the coast, the administration being then removed to Accra. It is still one of the chief ports of the Gold Coast Colony, and from it starts the direct road to Kumasi. In 1905 it was granted municipal government. In the courtyard of the castle are buried George Maclean (governor of the colony 1830–1843) and his wife (Laetitia Elizabeth Landon). The graves are marked by two stones bearing respectively the initials “L. E. L.” and “G. M.” The land on the east side of the town is studded with disused gold-diggers’ pits. The natives are divided into seven clans called companies, each under the rule of recognized captains and possessing distinct customs and fetish.

 CAPE COLONY (officially, “”), the most southern part of Africa, a British possession since 1806. It was named from the promontory on its south-west coast discovered in 1488 by the Portuguese navigator Diaz, and near which the first settlement of Europeans (Dutch) was made in 1652. From 1872 to 1910 a self-governing colony, in the last-named year it entered the Union of South Africa as an original province. Cape Colony as such then ceased to exist. In the present article, however, the word “colony” is retained. The “provinces” referred to are the colonial divisions existing before the passing of the South Africa Act 1909, except in the sections Constitution and Government and Law and Justice, where the changes made by the establishment of the Union are set forth. (See also .)

Boundaries and Area.—The coast-line extends from the mouth of the Orange (28° 38′ S. 16° 27′ E.) on the W. to the mouth of the Umtamvuna river (31° 4′ S. 30° 12′ E.) on the E., a distance of over 1300 m. Inland the Cape is bounded E. and N.E. by Natal, Basutoland, Orange Free State and the Transvaal; N. by the Bechuanaland Protectorate and N.W. by Great Namaqualand (German S.W. Africa). From N.W. to S.E. the colony has a breadth of 800 m., from S.W. to N.E. 750 m. Its area is 276,995 sq. m.—more than five times the size of England. Walfish Bay (q.v.) on the west coast north of the Orange river is a detached part of Cape Colony.

Physical Features.—The outstanding orographic feature of the country is the terrace-formation of the land, which rises from sea-level by well-marked steps to the immense plateau which forms seven-eighths of South Africa. The coast region varies in width from a few miles to as many as fifty, being narrowest on the south-east side. The western coast line, from the mouth of the Orange to the Cape peninsula, runs in a general south-east direction with no deep indentations save just south of 33° S. where, in Saldanha Bay, is spacious and sheltered anchorage. The shore is barren, consisting largely of stretches of white sand or thin soil sparsely covered with scrub. The Cape peninsula, which forms Table Bay on the north and False Bay on the south, juts pendant beyond the normal coast line and consists of an isolated range of hills. The scenery here becomes bold and picturesque. Dominating Table Bay is the well-known Table Mountain (3549 ft.), flat-topped and often covered with a “tablecloth” of cloud. On its lower slopes and around Table Bay is built Cape Town, capital of the colony. Rounding the storm-vexed Cape of Good Hope the shore trends south-east in a series of curves, forming shallow bays, until at the saw-edged reefs of Cape Agulhas (Portuguese, Needles) in 34° 51′ 15″ S. 20° E. the southernmost point of the African continent is reached. Hence the coast, now very slightly indented, runs north by east until at Algoa Bay (25° 45′ E.) it takes a distinct north-east bend, and so continues beyond the confines of the colony. Along the southern and eastern shore the country is better watered, more fertile and more picturesque than along the western seaboard. Cape Point (Cape of Good Hope) stands 840 ft. above the sea; Cape Agulhas 455 ft. Farther on the green-clad sides of the Uiteniquas Mountains are plainly visible from the sea, and as the traveller by boat proceeds eastward, stretches of forest are seen and numbers of mountain streams carrying their waters to the ocean. In this part of the coast the only good natural harbour is the spacious estuary of the Knysna river in 23° 5′ E. The entrance, which is over a bar with 14 ft. minimum depth of water, is between two bold sandstone cliffs, called the Heads.

Off the coast are a few small islands, mainly mere rocks within the bay. None is far from the mainland. The largest are Dassen Island, 20 m. S. of Saldanha Bay, and Robben Island, at the entrance to Table Bay. St Croix is a rock in Algoa Bay, upon which Diaz is stated to have erected a cross. A number of small islands off the coast of German South-West Africa, chiefly valuable for their guano deposits, also belong to Cape Colony (see ).

Ocean Currents.—Off the east and south shores of the colony the Mozambique or Agulhas current sweeps south-westward with force sufficient to set up a back drift. This back drift or

title: Page:EB1911 - Volume 05.djvu/238


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United States v. Shackleford

THIS case came up from the circuit court of the United States for the district of Kentucky, on a certificate of division in opinion between the judges thereof.

The point of difference was thus stated. Statement of point of disagreement.

The statement of the point upon which the disagreement of the judges happened having been made, is in these words:-- Question of difference.

In the progress of the trial of this cause, and, after the jury had been in part selected, and other jurors were presented to the prisoner, he peremptorily challenged one of them, when the question arose, whether the defendant was entitled to any peremptory challenges; on which question the judges were divided in opinion. Whereupon, the point of division, and the grounds thereof, are ordered to be certified to the supreme court of the United States, for its opinion and direction to this court on the case certified.

And the cause was continued, to await the instructions of the suprme court.

J. CATRON.

It was submitted upon printed arguments by Mr. Cushing, (attorney-general,) for the United States, and by Mr. Underwood, for the defendant.

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. Shackleford


text: Talk:United States v. Shackleford

title: Talk:United States v. Shackleford


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United States v. Shackleford/Opinion of the Court

This case comes up on a certificate of a division of opinion between the judges of the circuit court of the United States for the district of Kentucky.

The prisoner was indicted for a misdemeanor in wrongfully deserting the mails of the United States, before delivering them to the proper officer or agent, he being a mail carrier at the time, and, as such, having the mails in charge. (§ 21 of act of cong., 3d March, 1825; 4 Stats. at Large, 107.)

A question arose, in impanelling the jury, whether the prisoner was entitled to a peremptory challenge of one or more jurors, upon which the judges were divided in opinion.

The act of congress passed 20th July, 1840, 5 Stats. at Large, 394, provides that jurors, to serve in the courts of the United States, in each State, shall have the like qualifications, and be entitled to the like exemptions, as jurors of the highest court of law of such State now have and are entitled to, and shall hereafter from time to time have and be entitled to; and shall be designated by ballot, lot, or otherwise, according to the mode of forming such juries now practised, and hereafter to be practised therein, so far as such mode may be practicable by the courts of the United States, or the officers thereof. 'And, for this purpose, the said courts shall have power to make all necessary rules and regulations for conforming the designation, and impanelling of juries, in substance, to the laws and usages now in force in such State; and, further, shall have power by rule or order, from time to time, to conform the same to any change in these respects, which may be hereafter adopted by the legislatures of the respective States for the state courts.'

The court is of opinion that the power conferred upon the federal courts to adopt 'rules and regulations for conforming the designation and impanelling of juries to the laws and usages in force at the time in the State,' enables them to adopt the laws and usages of the State in respect to the challenges of jurors, whether peremptory or for cause, and in cases both civil and criminal, with the exception, in criminal cases, of treason and other crimes, of which the punishment is declared to be death.

The § 30 of the crimes act of 1790, 1 Stats. at Large, 119, provides, that if persons indicted for treason against the United States shall challenge peremptorily above the number of thirty-five of the jury, or if persons indicted for any other of the offences before set forth, for which the punishment is declared to be death, shall challenge peremptorily above the number of twenty persons of the jury, the court in any of these cases shall, notwithstanding, proceed to the trial of the persons so challenging, &c.

This act of congress having expressly recognized the right of peremptory challenge in the one case of the number of thirty-five jurors, and in the other of twenty, they should be regarded as excepted out of the power conferred upon the courts to regulate the subject by rule or order under the aforesaid act of 1840.

The right of challenge in the cases specified in the act of 1790, in respect to the number of jurors, is derived from the common law, which allowed thirty-five in cases of treason, and twenty in cases of felony. 4 Bl. Com. 354, 355; 12 Wheat. 483.

That law also gave to the king a qualified right of challenge in these cases, which had the effect to set aside the juror till the panel was gone through with, without assigning cause, and if there was not a full jury without the person so challenged, then the cause must be assigned or the juror would be sworn.

The court is of opinion that the right of challenge by the prisoner recognized by the act of 1790, does not necessarily draw along with it this qualified right, existing at common law, by the government; and that, unless the laws or usages of the State, adopted by rule under the act of 1840, allow it on behalf of the prosecution, it should be rejected, conforming in this respect the practice to the state law.

It does not appear in the case before us, whether or not the court below had adopted the state law under the act of 1840, as it existed at or previous to the proceedings certified, and hence we are not enabled to express any opinion upon the particular question certified. But the opinion expressed upon the general question will enable the court below to dispose of the case, without any amendment of the record, or further hearing of the case.

The cause is, therefore, remanded to the court below to proceed according to the foregoing opinion.


text: Talk:United States v. Shackleford/Opinion of the Court


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Conner v. Elliott

THIS case was brought up from the supreme court of Louisiana, by a writ of error issued under the 25th section of the judiciary act.

The case is stated in the opinion of the court.

It was argued by Mr. Henderson, for the plaintiff in error, and by Mr. Benjamin, for the defendants.

Mr. Justice CURTIS delivered the opinion of the court.

title: Conner v. Elliott


text: Talk:Conner v. Elliott

title: Talk:Conner v. Elliott


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Conner v. Elliott/Opinion of the Court

In the course of proceedings which were had in Louisiana, under the laws and in the courts of that State, to determine the rights of parties interested in the succession of Henry L. Conner, deceased, a citizen of the State of Mississippi, his widow, who is the plaintiff in error in this case, filed in the district court of the tenth judicial district of the State of Louisiana, a petition, claiming to be entitled to her rights of marital community, as they exist under the laws of that State. These rights having been denied by the district court, an appeal was prosecuted to the supreme court; and it was there held that inasmuch as the marriage through which the appellant claimed was not in fact contracted in Louisiana, nor in contemplation of a matrimonial domicile in that State, and the spouses had never resided therein; the wife was not a partner in community with the husband by force of the laws of Louisiana.

On this writ of error, it neither is nor can be denied that the supreme court of Louisiana has correctly declared and applied the law of that State to this case. But it is insisted that this law deprives the plaintiff in error, a citizen of the State of Mississippi, of one of the privileges of a citizen in the State of Louisiana, and therefore is in contravention of the first clause of the second section of the fourth article of the constitution, which provides that 'the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.'

It appears upon the record that this question was raised by the pleadings, and presented to and decided by the highest court of the State; it is therefore open here, upon this writ of error, for final determination by this court, under the twenty-fifth section of the judiciary act of 1789, 1 Stats. at Large, 85.

It appears that the plaintiff in error, though a native-born citizen of Louisiana, was married in the State of Mississippi, while under age, with the consent of her guardian, to a citizen of the latter State, and that their domicile, during the duration of their marriage, was in Mississippi. But, while it continued, the husband acquired a plantation, and other real property, in Louisiana. If the marriage had been contracted in Louisiana, the code of that State, then in force, Code of 1808, art. 3, § 4, would have superinduced the rights of community. And at the time when the property in question was purchased by the husband, in 1841, the code of 1825, then in force, contained the following articles:--

'Art. 2369. Every marriage contracted in this State superinduces, of right, partnership or community of acquets or gains, if there be no stipulation to the contrary.'

'Art. 2370. A marriage contracted out of this State, between persons who afterwards come here to live, is also subjected to the community of acquets with respect to such property as is acquired after their arrival.'

And it is insisted that, as these articles gave to what is termed in the argument a Louisiana widow the right of marital community, the laws of the State could not constitutionally deny, as it is admitted they did in fact deny, the same rights to all widows, citizens of the United States, though not married in Louisiana, or residing there during the marriage, and while the property in question was acquired.

In other words, that, as the laws of Louisiana provide that a contract of marriage made in that State, or the residence of persons there in the relation created by marriage, shall give rise to certain rights on the part of each in property acquired within that State, by force of the article of the constitution above recited, all citizens of the United States, wherever married and residing, obtain the same rights in property acquired in that State during the marriage. We do not deem it needful to attempt to define the meaning of the word privileges in this clause of the constitution. It is safer, and more in accordance with the duty of a judicial tribunal, to leave its meaning to be determined, in each case, upon a view of the particular rights asserted and denied therein. And especially is this true, when we are dealing with so broad a provision, involving matters not only of great delicacy and importance, but which are of such a character, that any merely abstract definition could scarcely be correct; and a failure to make it so would certainly produce mischief.

It is sufficient for this case to say that, according to the express words and clear meaning of this clause, no privileges are secured by it, except those which belong to citizenship. Rights, attached by the law to contracts, by reason of the place where such contracts are made or executed, wholly irrespective of the citizenship of the parties to those contracts, cannot be deemed 'privileges of a citizen,' within the meaning of the constitution.

Of that character are the rights now in question. They are incidents, ingrafted by the law of the State on the contract of marriage. And, in obedience to that principle of universal jurisprudence, which requires a contract to be governed by the law of the place where it is made and to be performed, the law of Louisiana undertakes to control these incidents of a contract of marriage made within the State by persons domiciled there; but leaves such contracts, made elsewhere, to be governed by the laws of the places where they may be entered into. In this, there is no departure from any sound principle, and there can be no just cause of complaint.

The law of the State further provides, that if married persons come to Louisiana to reside, and acquire property there during such residence, they shall be deemed nuptial partners in respect to such property; but if the domicile of the marriage continues out of Louisiana, the relative rights of the married persons may be regulated by the laws of the place of such domicile, even in respect to property acquired by one of them in Louisiana. That the first of these rules, which extends the laws of the State to married persons coming to reside and acquiring property therein, is a proper exercise of legislative power, has not been questioned. But it is insisted that the last, which leaves the rights of non-resident married persons in respect to property in Louisiana to be governed by the laws of their domicile, deprives the wife of her rights as a citizen, in property acquired by the husband during marriage in Louisiana. The answer to this has been already indicated. The laws of Louisiana affix certain incidents to a contract of marriage there made, or there partly or wholly executed, not because those who enter into such contracts are citizens of the State, but because they there make or perform the contract. And they refuse to affix these incidents to such contracts, made and executed elsewhere, not because the married persons are not citizens of Louisiana, but because their contract being made and performed under the laws of some other State or country, it is deemed proper not to interfere, by Louisiana laws, with the relations of married persons out of that State. Whether persons contracting marriage in Louisiana are citizens of that or some other State, or aliens, the law equally applies to their contract; and so, whether persons married and domiciled elsewhere, be or be not citizens or aliens, the law fails to regulate their rights. The law does not discriminate between citizens of the State and other persons; it discriminates between contracts only. Such discrimination has no connection with the clause in the constitution now in question. If a law of Louisiana were to give to the partners inter sese certain peculiar rights, provided they should reside within the State, and carry on the partnership-trade there, we think it could not be maintained that all copartners, citizens of the United States, residing and doing business elsewhere, must have those peculiar rights by force of the constitution of the United States, any more than it could be maintained that, because a law of Louisiana gives certain damages on protested bills of exchange, drawn or indorsed within that State, the same damages must be recoverable on bills drawn elsewhere in favor of citizens of the United States.

The rights asserted in this case, before the supreme court of Louisiana, are not privileges of citizenship; consequently, there is no error in the judgment of that court, which is hereby affirmed.

title: Conner v. Elliott/Opinion of the Court


text: Talk:Conner v. Elliott/Opinion of the Court


text:
Pease v. Peck

THIS case was brought up by writ of error for the circuit court of the United States for the district of Michigan.

The case is stated in the opinion of the court.

It was argued by Mr. Lawrence, for the plaintiff in error, adopting also an argument filed by Mr. Emmons and Mr. Grey; and for the defendant in error by Mr. Badger, upon a brief filed by himself and Mr. Carlisle.

Mr. Justice GRIER delivered the opinion of the court.

title: Pease v. Peck


text: Talk:Pease v. Peck

title: Talk:Pease v. Peck


text:
Pease v. Peck/Opinion of the Court

Peck the plaintiff below, declared against Pease in an action of debt on a judgment obtained in the circuit court of the territory (now State) of Michigan, at the term of January, 1836. The defendant pleaded the statute of limitations of eight years; to which the plaintiff replied that he did not at any time reside in the State of Michigan, but in parts 'beyond seas,' to wit, in the State of New York.

The defendant demurred to the replication.

The objection to this replication is not to the construction of the statute which is assumed by the plaintiff to govern the case, or an allegation that, according to the settled construction of the word 'beyond seas,' the replication is defective. But it is intended to deny that the statute of limitations pleaded has any such provision in it. The question is, therefore, not what is the construction of an admitted statute, but what is the statute. For each party admits that if the statute be as claimed by his opponent, his construction of it is correct.

By the ordinance of 1787, 'for the government of the territory of the United States northwest of the River Ohio,' it is provided 'that the governor and judges, or a majority of them shall adopt and publish in the district such laws of the original States, criminal and civil, as may be necessary and best suited to the circumstances of the district, and report them to congress from time to time, which laws shall be in force in the district until the organization of the general assembly therein, unless disapproved of by congress; but afterwards the legislature shall have authority to alter them, as they shall see fit.'

By an act of congress of 24th April, 1820, 3 Stats. at Large, 565, the laws of Michigan territory in force, were ordered to be printed under the direction of the secretary of state, and a competent number distributed to the people of said territory.

In the volume of the laws so published by authority in that year, is a statute of limitations, which the governor and judges certify to have been 'adopted from the laws of the State of Vermont, as far as necessary and suitable to the circumstances of the territory of Michigan.'

The eighth section of this act provides that 'actions of debt or scire facias on judgment must be brought within eight years after the rendition of the judgment, &c.'

The 10th section enacts that 'this act shall not extend to bar any infant, feme covert, person imprisoned, or beyond seas, or without the United States, or non compos mentis, &c.'

On the 21st of April, 1825, the legislature of the territory, which had been now organized, appointed certain individuals to revise the laws of the territory. They were required 'to examine all the laws then in force, to revise, consolidate, and digest them, making such alterations or additions as they may deem expendient.'

On the 27th of December, 1826, the commissioners report to the legislature the statutes as revised by them, stating that considerable alterations and some additions had been made by them. These laws received the sanction of the legislature, and were published by authority, in 1827. By this it appears that they adopted the statute of limitations, and the 10th section thereof, from the published acts of 1820, and as stated above. Again, in 1833, 'the laws of the territory of Michigan were condensed, arranged, and passed by the fifth legislative council,' and were again published under authority of the legislature. The 10th section is again stated in the same words.

The law, as thus published, has been acknowledged by the people and the courts, and received a harmonious interpretation for thirty years. But it has lately been discovered that the text or original manuscript adopted by the governor and judges in 1820, differs from the printed statutes, as published by authority, as to the words of this 10th section. It reads as follows: 'Persons imprisoned or without the United States,'-having the words 'beyond seas' erased; whereas the printed statutes retain the words 'beyond seas,' and add or interpolate the word 'or.'

It is no doubt true, as a general rule, that the mistake of a transcriber or printer cannot change the law; and that when the statutes published by authority are found to differ from the original on file among the public archives, that the courts will receive the latter as containing the expressed will of the legislature in preference to the former. Yet, as the people who are governed by the laws, and the courts who administer them, practically know the law only from the authorized publication of them, the propriety of recurring to ancient, altered, and erased manuscripts, for the purpose of changing their construction after a lapse of thirty years, and after their construction has been long settled by the courts, and has entered as an element into the contracts and business of the citizens, may well be doubted. The reception and long acquiescence in them, as printed and distributed by authority, by those who had it always in their power to alter or annul them, and did not, may justly be treated as a ratification of them in that form by the sovereign people. The maxim communis error facit jus, though said to be dangerous in its application, 'because it sets up a misconception of the law, for destruction of the law,' might here find a safe and proper application, and make it one of the 'some cases' in which it is said the law so favors the public good, that it will permit a common error to pass for right. Noy's Maxims, 37, 4 Inst. 240.

But we need not have recourse to any doubtful speculations in order to arrive at a satisfactory solution of this question. The laws reported by the governor and judges were intended to be temporary, and to remain in force only till the territory should be fully organized, as provided by the ordinance. After such organization, 'the legislature is authorized to alter them as they see fit.' Accordingly, when the territory of Michigan was so organized, by the election of such council, legislature, or 'general assembly,' they proceeded at once to have a code or digest of the laws reported for the future government of the territory, and they adopt, reject, alter, and add to, the former laws 'as they saw fit.' After the promulgation of their code, that of the governor and judges is entirely supplanted, and has no longer any force or effect whatever. Those who look for the rule of action which is to govern term, seek it no longer in the code which has been abrogated, and, having effected its temporary purpose, has become obsolete and null, but in that which has the sanction of their own legislature. The declaration of the legislative will is to be sought from documents originating with them, or published by their sanction. The original documents reported by the judges may be the best evidence of what statutes they intended temporarily to adopt, and what was their will and intention, but cannot be received as any evidence of the will and intention of a legislature ordaining a new and permanent system of laws under powers delegated to them by congress and the people of the territory. It may well be presumed, that the legislature had no knowledge of this newly discovered erasure in the original, and supposed interpolation in the printed copy of the laws, reported by the judges in 1820; and that they adopted the law as they found it in the copy-printed by authority, and 'distributed to the people of the territory.' They certainly had power to do so, and having done so, it would be folly to say that they intended to adopt some other words as the expression of their will, to be found only in a document reposing in the crypts of the secretary's office, and which they had probably never seen. But if we assume that they had seen this document, and were aware of its discrepancy from the published law, then their adoption of the latter would be conclusive. On either hypothesis this original document can furnish no evidence of the intention or will of the legislature. It must be remembered that there is no allegation or pretence, that the acts published by authority of the legislature differ from the original reported to them and adopted by them.

That is the only original, if there be any such in existence, by which the printed copy could be corrected or amended. But to correct or amend the declared will of the legislature, as published under their authority, by the words of a document which did not emanate from them, which it is most probable they never saw, or if seen, they did not see fit to adopt where it differed from the published statutes, would be, in our opinion, judicial legislation, and arbitrary assumption.

The only argument which has been urged, which could lead us to doubt the justness of this conclusion is, that the supreme court of Michigan have, it is said, come to a different decision on this question. We entertain the highest respect for that learned court, and in any question affecting the construction of their own laws, where we entertained any doubt, would be glad to be relieved from doubt and responsibility by reposing on their decision. There are, it is true, many dicta to be found in our decisions, averring that the courts of the United States are bound to follow the decisions of the state courts on the construction of their own laws. But although this may be a correct, yet a rather strong expression of a general rule, it cannot be received as the enunciation of a maxim of universal application. Accordingly, our reports furnish many cases of exceptions to it. It all cases where there is a settled construction of the laws of a State, by its highest judicature, established by admitted precedent, it is the practice of the courts of the United States to receive and adopt it without criticism or further inquiry. But when this court have first decided a question arising under state laws, we do not feel bound to surrender our convictions, on account of a contrary subsequent decision of a state court, as in the case of Rowan v. Runnels, 5 How. 139. When the decisions of the state court are not consistent, we do not feel bound to follow the last, if it is contrary to our own convictions-and much more is this the case, where, after a long course of consistent decisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines, subversive of former safe precedent. Cases may exist also, when a cause is got up in a state court for the very purpose of anticipating our decision of a question known to be pending in this court. Nor do we feel bound in any case in which a point is first raised in the courts of the United States, and has been decided in a circuit court, to reverse that decision contrary to our own convictions, in order to conform to a state decision made in the mean time. Such decisions have not the character of established precedent declarative of the settled law of a State.

Parties who, by the constitution and laws of the United States, have a right to have their controversies decided in their tribunals, have a right to demand the unbiased judgment of the court. The theory upon which jurisdiction is conferred on the courts of the United States, in controversies between citizens of different States, has its foundation in the supposition that, possibly, the state tribunal might not be impartial between their own citizens and foreigners.

The question presented in the present case is one in which the interests of citizens of other States, come directly in conflict with those of the citizens of Michigan. The territorial law in question had been received and acted upon for thirty years, in the words of the published statute. It had received a settled construction by the courts of the United States as well as those of the State. It had entered as an element into the contracts and business of men. On a sudden, a manuscript statute differing from the known public law, is disinterred from the lumber room of obsolete documents; a new law is prmulgated by judicial construction, which, by retroaction, destroys vested rights of property of citizens of other States, while it protects the citizens of Michigan from the payment of admitted debts.

We think that such a case peculiarly calls upon us not to surrender our clear convictions and unbiased judgment to the authority of the new state decision, and to render a judgment in favor of the plaintiff, which we do by affirming the judgment of the circuit court.

Mr. Justice DANIEL and Mr. Justice CAMPBELL dissented.

title: Pease v. Peck/Opinion of the Court


text: Talk:Pease v. Peck/Opinion of the Court

title: Talk:Pease v. Peck/Opinion of the Court


text: 1911 Encyclopædia Britannica/Cape Coast

title: 1911 Encyclopædia Britannica/Cape Coast


text: Strader v. Graham (59 U.S. 602)

title: Strader v. Graham (59 U.S. 602)


text: Talk:Strader v. Graham (59 U.S. 602)

title: Talk:Strader v. Graham (59 U.S. 602)


text:
Strader v. Graham (59 U.S. 602)/Opinion of the Court

THIS case was dismissed for want of jurisdiction, at December term, 1850, 10 How. 82.

At the present term, Mr. Crittenden, of counsel for the defendant in error, moved the court to amend the judgment entered in this cause at the December term, 1950, and to give a judgment for the costs in this court in favor of his client. Whereupon it is now here considered by the court that this court cannot give a judgment for costs in a case dismissed for want of jurisdiction, and it appearing to this court that this cause has been dismissed for want of jurisdiction, it is thereupon now here ordered by the court that the said motion be and the same is hereby overruled.


text: Talk:Strader v. Graham (59 U.S. 602)/Opinion of the Court


text:
Page:Syria, the land of Lebanon (1914).djvu/154

SYRIA, THE LAND OF LEBANON Allah straggle, four months later, a sick and exhausted remnant who have survived the journey to the holy city, to bear henceforth the envied title of haj or " pilgrim." Then cholera or plague breaks out with renewed virulence.

Of the ancient fortifications of Damascus, only a short, ruinous piece now remains. The city is surrounded, between the houses and the orchards, by an almost unbroken succession of cemeteries. In the burying ground of the Orthodox Greeks is the small, unimpressive tomb of St. George, who is said to have assisted the Apostle Paul in his escape over the wall. This cannot, of course, be the same St. George who killed the dragon, as the hero of that famous exploit was not born until nearly three hundred years after the time of Paul.

In the large Moslem cemeteries at the southeast of the city are the tombs of Mohammed's muezzin, two of his nine wives, and his favorite child, Fatima. Not far from the sepulcher of the Prophet's daughter, though outside of the cemetery, is buried an unfortunate Jew who aspired to the hand of Fatima. The presumptuous lover is said to have been stoned to death, and his grave is now entirely hidden under a great heap of the rocks which  [ 116 ]


text:
Page:Syria, the land of Lebanon (1914).djvu/155

THE RICHES OF DAMASCUS Moslems still cast upon it as a sign of their contempt.

Just outside of Damascus, also, is a sad house of "life more terrible than death." It was once, they say, the residence of proud Naaman, and it is still tenanted by lepers who, alas, have known no Elisha and washed in no healing Jordan. My Syrian friends were afraid even to enter its court, but I talked with eight of the thirty or forty inmates. Some were voiceless and shapeless—grotesque, horrible caricatures of humanity. But there was still a "little maid" in the House of Naaman. Miriam was a pretty, slender girl, just beginning to burst into the bloom of early Eastern adolescence. She seemed the very incarnation of health and youthful joy, and could hardly stop laughing long enough for me to take her photograph. Yet I could not laugh with her; for on the rich brown of her cheek was a tiny pinkish swelling, and close beside her graceful form crouched an awful figure, loathsome, unsmiling and unwomanly, like which she would some day be.

Over the now closed Kisan Gate at the southeast corner of the city wall is a small, bricked-up window, through which tradition says that St. Paul was let down in a basket. Unfortunately for the story, this part of the fortification dates from the Turkish occupation. The bend of the wall includes, however, as it probably has always done, the Jewish Quarter. [ 117 ]


text:
Prevost v. Greneaux

THIS case was brought up from the Supreme Court of the State of Louisiana by a writ of error issued under the 25th section of the judiciary act.

The facts in the case were very few, and are stated in the opinion of the court. See also 8 Howard, 490, and 18 Howard, 182.

It was argued by Mr. Janin for the plaintiff in error, and by Mr. Benjamin for the defendant.

Mr. Janin made the following point:

The plaintiff in error submits-and that is the only point in the case-that his heirship was only recognised in 1854; and that when the law imposing a tax or penalty is repealed before that tax is collected, the right to recover it is lost.

This principle was recognised by the former Supreme Court of Louisiana.

In the case of the city of New Orleans v. Mrs. Grailhe, decided December 4, 1854, it was contended that the right to collect the tax levied by the ordinance of 1852 was lost by the repeal of that ordinance under the 5th condition of the 2d section of the acts of the Legislature of March 15, 1854, page 73, authorizing the city of New Orleans to subscribe to the Opelousas and Jackson railroads. This position was taken under the authority of the principles recognised in three decisions: one in the case of Cooper v. Hodge, 17 L., 476, and two others referred to in that decision. Judge Martin was the organ of the court in these three cases. In that of Cooper v. Hodge, the principle is expressed in this form:

'We have held, that if a judgment be correctly given under a law which is repealed pending the appeal, this court is bound to reverse it.'

The Supreme Court of the United States have acted on this principle in cases of much more difficulty than that now before the court.

The Legislature of Virginia, by an act passed in 1779, during the war, had authorized Virginia debtors of British subjects to discharge the debt by payment into an office existing under the State Government. The defendants in error, under this act, had paid into this office a portion of their indebtedness to the plaintiffs, and pleaded their discharge pro tanto under the act. The plaintiffs replied the 4th article of the definitive treaty of peace between Great Britain and the United States, of September 3, 1783, in which it was stipulated that creditors on either side should meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted.

The State was held to have had full power to make the law, but it had been annulled by the treaty, and the defendants in error were liable to the full amount, notwithstanding partial payment to the State.

1 Cranch, 103. The United States v. The Schooner Peggy. The schooner Peggy was captured by a United States armed vessel, and libelled as prize, ordered to be restored by the District Court, condemned by the Circuit Court on appeal as lawful prize, when the owners of the Peggy prosecuted a writ of error to the Supreme Court. She had been captured as sailing under the authority of the French Republic. On the 30th of September, 1801, pending the writ of error, a convention was signed between the United States and the French Republic, and was ratified on the 21st of December, 1801, which provided for the restoration of property captured, but not yet definitively condemned.

It was urged that the court could take no notice of the stipulation for the restoration of property not yet definitively condemned; that the judge could only inquire if the sentence was correct or erroneous when delivered; and that if it was then correct, it could not be rendered otherwise by anything subsequent to its rendition. It was held by the court, in the opinion delivered by Chief Justice Marshall, that if, subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied; that, where a treaty is the law of the land, and, as such, binds the rights of parties litigating in court, to condemn a vessel, the restoration of which was directed by it, would be a direct infraction of that law, and of consequence improper; that if the law was constitutional, and no doubt of it had been expressed in this case, no court could contest its obligation. The effect upon civil rights acquired under a statute, of the repeal of the statute, was most fully considered in the case of Butler v. Palmer, (1 Hill's Rep., 324,) in an elaborate opinion of Judge Cowen. In speaking of the effect of a repeal upon inchoate rights, he says: 'I understand the rule of the writers on the civil law perfectly to agree with that acted on by our courts in all their decisions, ancient and modern. Those writers speak of rights which have arisen under the statute not being affected by the repeal, but the context shows at once what kind of rights they mean. The amount of the whole comes to this: that a repealing clause is such an express enactment as necessarily divests all inchoate rights which had arisen under the statute it destroys. These rights are but incidents to the statute, and fall with it unless saved by the express words of the repealing clause.' He reviews the case of Miller, (1 W. Blackstone's Rep., 451,) and gives a much fuller statement of it from some other reporter. See, also, Smith's Commentaries on Statutory Construction, pp. 888, 889, for the same case, and the English decisions in affirmance of it. The result of these decisions is, that not only in penal and jurisdictional matters, but in civil matters, where rights that are inchoate and set up under a repealed statute, they are divested as fully as if the statute had never existed.

But can it with any propriety be said in any case that the State acquires a vested civil right to a tax? To impose, levy, and collect a tax is an exercise of the sovereign power, as much as the levying and collecting a fine for a misdemeanor. The repeal of the statute imposing one or the other at once stops all action under it. A sovereign never pleads a vested civil right to a tax; he simply takes it by virtue of his inherent power. A statute is simply an exertion of that power; its repeal, the withdrawal of the application of the power. The machinery for its collection provided by the statute is paralyzed by the repeal.

We are entitled to the benefit of a strict construction of the statute, as being not only partial and odious, even as it regards citizens of the State, but, as was held by the Supreme Court of the State of Louisiana in the case of the widow and heirs of Benjamin Poydras de la Lande against the Treasurer of the State, even penal in its character.

So far as statutes for the regulation of trade impose fines or create forfeitures, they are doubtless to be construed strictly as penal, and not liberally as remedial laws. Mayor v. Davis, 6 Watts and Serg., 269.

Statutes levying duties or taxes upon subjects or citizens are to be construed most strongly against the Government, and in favor of the subjects and citizens, and their provisions are not to be extended by implication beyond the clear import of the language used. U.S. v. Wigglesworth, 2 Story, 369.

No judgment can be rendered for a penalty given by a statute after the statute is repealed, although the action was commenced before the repeal. Pope v. Lewis, 4 Ala., 487.

From these principles and authorities it follows, that the right of the State to claim or recover the foreign succession tax of 1842 is lost from the moment of the promulgation of the consular convention of 1853, although the tax might have been claimed and recovered, if proceedings had been instituted, perfected, and executed, before that convention.

Mr. Benjamin stated the points as follows:

The case is clearly within the jurisdiction of this court; and the only question is, whether the court of Louisiana has rightfully construed the treaty. Its decisions under it have been

First. That wherever the rights of the heir vested after the consular convention went into effect, the tax could not be recovered. Succession Dufour, Annual, 392.

Secondly. That wherever the right of the heir vested anterior to the date of the treaty, the right of the State vested at the same time.

The latter proposition is the one now in dispute.

I. At what time, under the laws of Louisiana, did the rights of the State to the tax of ten per cent. vest?

Fortunately, the response to this question is entirely free from difficulty, as the point had been settled by a series of adjudications long prior to the controversy in this cause.

The Supreme Court of that State has held, ever since the year 1831, that, under the State statute, the rights of the heir and of the State both vested at the instant of the testator's death. Armand's Heirs v. His Executors, 3 L. R., 337; Quessart's Heirs v. Canonge, 3 L. R., 561; Succession of Oyon, 6 Rob. R., 504; Succession of Blanchard, 17 Annual, 392; Succession of Dufour, 18 Annual, 392; Succession of Deyraud, 9 Rob. R., 358.

The question had arisen in Louisiana under every aspect.

In the first two cases cited, the law imposing the tax had been repealed before the collection of the tax, but subsequent to the death of the party under whom the heirs claimed. The court held, that the title of the State had vested at the death, and that the tax could be collected, notwithstanding the repeal of the statute.

In the two cases next cited, the law imposing the tax was passed after the testator's death, but before the heirs had received the succession. The court held, that the right of the heirs had vested in the whole of the estate at the death of the testator, and that the tax could not be collected.

In the fifth case cited, the convention with France was passed before the testator's death; and the court held, that the tax could not be collected, because the heir's right vested at the death.

In the sixth case, the death occurred before the passage of the convention; and the court held, that the right of the State had accrued at the death, and the tax could be collected.

And the whole series of adjudications on the construction of a State statute, during a period of twenty-five years, is unbroken by a single contradicting case, or even by the dissent of a single judge.

Under the rules, then, which this court has established for itself, it will take it for granted, without further inquiry or examination, that a right to one-tenth of Prevost's succession had vested in the State of Louisiana anterior to the date of the treaty in question.

II. The only remaining question is, whether the treaty was intended to divest any title acquired prior to its passage.

The terms of the treaty are entirely prospective, and its language appears too plain to require any reference to canons of construction.

Frenchmen, after its date, are to be considered, for all the purposes of the treaty, as citizens of Louisiana. But the claim of the State would be good against its own citizens after the repeal of the taxing law, because vested prior to the repeal, as already shown by the authorities cited. Ergo, that claim is good against the Frenchman.

Mr. Chief Justice TANEY delivered the opinion of the court.

title: Prevost v. Greneaux


text: Talk:Prevost v. Greneaux

title: Talk:Prevost v. Greneaux


text:
Prevost v. Greneaux/Opinion of the Court

This is a writ of error to the Supreme Court of the State of Louisiana. It appears that a certain Francois Marie Prevost, an inhabitant of that State, died in the year 1848 intestate and without issue, and possessed of property to a considerable amount. He left a widow; and, as no person appeared claiming as heir of the deceased, the widow, according to the laws of the State, was put in possession of the whole of the property by the proper authorities, in December, 1851. She died in March, 1853.

In January, 1854, Jean Louis Prevost, a French subject residing in France, presented himself by his agent in Louisiana as the brother and sole heir of Francois Marie Prevost, and established his claim by a regular judicial proceeding in court.

The laws of Louisiana mpose a tax of ten per cent. on the value of all property inherited in that State by any person not domiciliated there, and not being a citizen of any State or Territory of the United States.

This tax is disputed by the plaintiff in error, upon the ground that the law of Louisiana is inconsistent with the treaty or consular convention with France. This treaty was signed on the 23d of February, 1853, ratified by the United States on the 1st of April, 1853, exchanged on the 11th of August, 1853, and proclaimed by the President on the 12th of August, 1853.

The 7th article of this treaty, so far as concerns this case, is in the following words:

'In all the States of the Union whose laws permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall enjoy the right of possessing personal and real property by the same title and in the same manner as the citizens of the United States. They shall be free to dispose of it as they may please, either gratuitously or for value received, by donation, testament, or otherwise, just as those citizens themselves; and in no case shall they be subjected to taxes on transfers, inheritance, or any others, different from those paid by the latter, or to taxes which shall not be equally imposed.'

Proceedings were instituted in the State courts by the plaintiff in error to try this question, which were ultimately brought before the Supreme Court of the State. And that court decided that the right to the tax was complete, and vested in the State upon the death of Francois Marie Prevost, and was not affected by the treaty with France subsequently made.

We can see no valid objection to this judgment. The plaintiff in error, in his petition to be recognised as heir, claimed title to all the separate property of Francois M. Prevost and his widow, then in the hands of the curator, and of all his portion of the community property, and of all the fruits and revenues of his succession from the day of the death of his brother. And, in adjudicating upon this claim, the court recognised the rights of the appellant, as set forth in his petition, and decided that he became entitled to the property, as heir, immediately upon the death of Fr. M. Prevost.

Now, if the property vested in him at that time, it could vest only in the manner, upon the conditions authorized by the laws of the State. And, by the laws of the State, as they then stood, it vested in him, subject to a tax of ten per cent., payable to the State. And certainly a treaty, subsequently made by the United States with France, could not divest rights of property already vested in the State, even if the words of the treaty had imported such an intention. But the words of the article, which we have already set forth, clearly apply to cases happening afterwards-not to cases where the party appeared, after the treaty, to assert his rights, but to cases where the right afterwards accrued. And so it was decided by the Supreme Court of the State, and, we think, rightly. The constitutionality of the law is not disputed, that point having been settled in this court in the case of Mayer v. Grima, 8 How., 490.

In affirming this judgment, it is proper to say that the obligation of the treaty and its operation in the State, after it was made, depend upon the laws of Louisiana. The treaty does not claim for the United States the right of controlling the succession of real or personal property in a State. And its operation is expressly limited 'to the States of the Union whose laws permit it, so long and to the same extent as those laws shall remain in force.' And, as there is no act of the Legislature of Louisiana repealing this law and accepting the provisions of the treaty, so as to secure to her citizens similar rights in France, this court might feel some difficulty in saying that it was repealed by this treaty, if the State court had not so expounded its own law, and held that Louisiana was one of the States in which the proposed arrangements of the treaty were to be carried into effect.

Upon the whole, we think there is no error in the judgment of the State court, and it must therefore be affirmed.


text: Talk:Prevost v. Greneaux/Opinion of the Court


text:
Morgan v. Curtenius (60 U.S. 8)

THIS case stood upon the trial docket, coming from the State of Illinois. It was submitted on a printed argument by Mr. Washburne for the plaintiff in error, no counsel appearing for the defendant.

Whereupon, upon an inspection of the record, the court expressed the following opinion:

Mr. Chief Justice TANEY delivered the opinion of the court.

title: Morgan v. Curtenius (60 U.S. 8)


text: Talk:Morgan v. Curtenius (60 U.S. 8)

title: Talk:Morgan v. Curtenius (60 U.S. 8)


text:
Morgan v. Curtenius (60 U.S. 8)/Opinion of the Court

Upon examining the transcript of the record filed in this case, we find that it is imperfect, and that a paper has been omitted which may be important to the decision of the matter in controversy between the parties.

The bill of exceptions upon which the cause is brought before this court, after stating that the defendants read in evidence the deed from Bogardas, to Underhill, under which they claim title, proceeds in the following words:

'The defendants next offered in evidence to the jury a certificate of the register of the land office at Quincy, dated _____, which is in the words and figures following, to wit.'

But the certificate thus referred to is not inserted in the exception, nor its contents stated in any part of the transcript. And as this paper was offered in evidence by the defendants, it must have been deemed material to their defence; and the court think it would not be just to them to proceed to final judgment, without having this paper before us.

And as the defendants have no counsel appearing in their behalf in this court, the court of its own motion order the case to be continued, and a certiorari issued in the usual form to the Circuit Court, directing it to supply the omission above mentioned, and return a full and correct transcript to this court, on or before the first day of the next term.

Upon an inspection of the record of this cause, it appearing to the court here that the bill of exceptions states that 'the defendants offered in evidence to the jury a certificate of the register of the land office at Quincy, dated _____, which is in the words and figures following, to wit;' and that the said certificate, thus referred to, is not inserted in the exception, nor its contents stated in any part of the transcript, on consideration whereof, it is now here ordered by this court, that a writ of certiorari be and the same is hereby awarded, to be issued forthwith, and to be directed to the judges of the Circuit Court of the United States for the district of Illinois, commanding them to supply the omission above mentioned, and return a full and correct transcript to this court, with this writ, on or before the first day of the next term of this court.


text: Talk:Morgan v. Curtenius (60 U.S. 8)/Opinion of the Court