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Den v. Hoboken Land and Improvement Company/Opinion of the Court

This case comes before us on a certificate of division of opinion of the judges of the circuit court of the United States for the district of New Jersey. It is an action of ejectment, in which both parties claim title under Samuel Swartwout-the plaintiffs, under the levy of an execution on the 10th day of April, 1839, and the defendants, under a sale made by the marshal of the United States for the district of New Jersey, on the 1st day of June, 1839-by virtue of what is denominated a distress warrant, issued by the solicitor of the treasury under the act of congress of May 15, 1820, entitled, 'An act providing for the better organization of the treasury department.' This act having provided, by its first section, that a lien for the amount due should exist on the lands of the debtor from the time of the levy and record thereof in the office of the district court of the United States for the proper district, and the date of that levy in this case being prior to the date of the judgment under which the plaintiffs' title was made, the question occurred in the circuit court, 'whether the said warrant of distress in the special verdict mentioned, and the proceedings thereon and anterior thereto, under which the defendants claim title, are sufficient, under the constitution of the United States and the law of the land, to pass and transfer the title and estate of the said Swartwout in and to the premises in question, as against the lessors of the plaintiff.' Upon this question, the judges being of opposite opinions, it was certified to this court, and has been argued by counsel.

No objection has been taken to the warrant on account of any defect or irregularity in the proceedings which preceded its issue. It is not denied that they were in conformity with the requirements of the act of congress. The special verdict finds that Swartwout was collector of the customs for the port of New York for eight years before the 29th of March, 1838: that, on the 10th of November, 1838, his account, as such collector, was audited by the first auditor, and certified by the first comptroller of the treasury; and for the balance thus found, amounting to the sum of $1,374,119 65/100, the warrant in question was issued by the solicitor of the treasury. Its validity is denied by the plaintiffs, upon the ground that so much of the act of congress as authorized it, is in conflict with the constitution of the United States.

In support of this position, the plaintiff relies on that part of the first section of the third article of the constitution which requires the judicial power of the United States to be vested in one supreme court and in such inferior courts as congress may, from time to time, ordain and establish; the judges whereof shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. Also, on the second section of the same article, which declares that the judicial power shall extend to controversies to which the United States shall be a party.

It must be admitted that, if the auditing of this account, and the ascertainment of its balance, and the issuing of this process, was an exercise of the judicial power of the United States, the proceeding was void; for the officers who performed these acts could exercise no part of that judicial power. They neither constituted a court of the United States, nor were they, or either of them, so connected with any such court as to perform even any of the ministerial duties which arise out of judicial proceedings.

The question, whether these acts were an exercise of the judicial power of the United States, can best be considered under another inquiry, raised by the further objection of the plaintiff, that the effect of the proceedings authorized by the act in question is to deprive the party, against whom the warrant issues, of his liberty and property, 'without due process of law;' and, therefore, is in conflict with the fifth article of the amendments of the constitution.

Taking these two objections together, they raise the questions, whether, under the constitution of the United States, a collector of the customs, from whom a balance of account has been found to be due by accounting officers of the treasury, designated for that purpose by law, can be deprived of his liberty, or property, in order to enforce payment of that balance, without the exercise of the judicial power of the United States, and yet by due process of law, within the meaning of those terms in the constitution; and if so, then, secondly, whether the warrant in question was such due process of law?

The words, 'due process of law,' were undoubtedly intended to convey the same meaning as the words, 'by the law of the land,' in Magna Charta. Lord Coke, in his commentary on those words, (2 Inst. 50,) says they mean due process of law. The constitutions which had been adopted by the several States before the formation of the federal constitution, following the language of the great charter more closely, generally contained the words, 'but by the judgment of his peers, or the law of the land.' The ordinance of congress of July 13, 1787, for the government of the territory of the United States northwest of the River Ohio, used the same words.

The constitution of the United States, as adopted, contained the provision, that 'the trial of all crimes, except in cases of impeachment, shall be by jury.' When the fifth article of amendment containing the words now in question was made, the trial by jury in criminal cases had thus already been provided for. By the sixth and seventh articles of amendment, further special provisions were separately made for that mode of trial in civil and criminal cases. To have followed, as in the state constitutions, and in the ordinance of 1787, the words of Magna Charta, and declared that no person shall be deprived of his life, liberty, or property but by the judgment of his peers or the law of the land, would have been in part superfluous and inappropriate. To have taken the clause, 'law of the land,' without its immediate context, might possibly have given rise to doubts, which would be effectually dispelled by using those words which the great commentator on Magna Charta had declared to be the true meaning of the phrase, 'law of the land,' in that instrument, and which were undoubtedly then received as their true meaning.

That the warrant now in question is legal process, is not denied. It was issued in conformity with an act of Congress. But is it 'due process of law?' The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. We apprehend there has been no period, since the establishment of the English monarchy, when there has not been, by the law of the land, a summary method for the recovery of debts due to the crown, and especially those due from receivers of the revenues. It is difficult, at this day, to trace with precision all the proceedings had for these purposes in the earliest ages of the common law. That they were summary and severe, and had been used for purposes of oppression, is inferable from the fact that one chapter of Magna Charta treats of their restraint. It declares: 'We or our bailiffs shall not seize any land or rent for any debt as long as the present goods and chattels of the debtor do suffice to pay the debt, and the debtor himself be ready to satisfy therefor. Neither shall the pledges of the debtor be distrained, as long as the principal debtor is sufficient for the payment of the debt; and if the principal debtor fail in payment of the debt, having nothing wherewith to pay, or will not pay where he is able, the pledges shall answer for the debt. And if they will, they shall have the lands and rents of the debtor until they be satisfied of the debt which they before paid for him, except that the principal debtor can show himself to be acquitted against the said sureties.'

By the common law, the body, lands, and goods of the king's debtor were liable to be levied on to obtain payment. In conformity with the above provision of Magna Charta, a conditional writ was framed, commanding the sheriff to inquire of the goods and chattels of the debtor, and, if they were insufficient, then to extend on the lands. 3 Co. 12 b; Com. Dig., Debt, G. 2; 2 Inst. 19. But it is said that since the statute 33 Hen. VIII. c. 39, the practice has been to issue the writ in an absolute form, without requiring any previous inquisition as to the goods. Gilbert's Exch. 127.

To authorize a writ of extent, however, the debt must be matter of record in the king's exchequer. The 33 Hen. VIII. c. 39, § 50, made all specialty debts due to the king of the same force and effect as debts by statute staple, thus giving to such debts the effect of debts of record. In regard to debts due upon simple contract, other than those due from collectors of the revenue and other accountants of the crown, the practice, from very ancient times, has been to issue a commission to inquire as to the existence of the debt.

This commission being returned, the debt found was thereby evidenced by a record, and an extent could issue thereon. No notice was required to be given to the alleged debtor of the execution of this commission, (2 Tidd's Pr. 1047,) though it seems that, in some cases, an order for notice might be obtained. 1 Ves. 269. Formerly, no witnesses were examined by the commission, (Chitty's Prerog. 267; West, 22;) the affidavit prepared to obtain an order for an immediate extent being the only evidence introduced. But this practice has been recently changed. 11 Price, 29. By the statute 13 Eliz. ch. 4, balances due from receivers of the revenue and all other accountants of the crown were placed on the same footing as debts acknowledged to be due by statute staple. These balances were found by auditors, the particular officers acting thereon having been, from time to time, varied by legislation and usage. The different methods of accounting in ancient and modern times are described in Mr. Price's Treatise on the Law and Practice of the Exchequer, ch. 9. Such balances, when found, were certified to what was called the pipe office, to be given in charge to the sheriffs for their levy. Price, 231.

If an accountant failed to render his accounts, a process was issued, termed a capias nomine districtions, against the body, goods, and lands of the accountant. Price, 162, 233, note 3.

This brief sketch of the modes of proceeding to ascertain and enforce payment of balances due from receivers of the revenue in England, is sufficient to show that the methods of ascertaining the existence and amount of such debts, and compelling their payment, have varied widely from the usual course of the common law on other subjects; and that, as respects such debts due from such officers, 'the law of the land' authorized the employment of auditors, and an inquisition without notice, and a species of execution bearing a very close resemblance to what is termed a warrant of distress in the act of 1820, now in question.

It is certain that this diversity in 'the law of the land' between public defaulters and ordinary debtors was understood in this country, and entered into the legislation of the colonies and provinces, and more especially of the States, after the declaration of independence and before the formation of the constitution of the United States. Not only was the process of distress in nearly or quite universal use for the collection of taxes, but what was generally termed a warrant of distress, running against the body, goods, and chattels of defaulting receivers of public money, was issued to some public officer, to whom was committed the power to ascertain the amount of the default, and by such warrant proceed to collect it. Without a wearisome repetition of details, it will be sufficient to give one section from the Massachusetts act of 1786: 'That if any constable or collector, to whom any tax or assessment shall be committed to collect, shall be remiss and negligent of his duty, in not levying and paying unto the treasurer and receiver-general such sum or sums of money as he shall from time to time have received, and as ought by him to have been paid within the respective time set and limited by the assessor's warrant, pursuant to law, the treasurer and receiver-general is hereby empowered, after the expiration of the time so set, by warrant under his hand and seal, directed to the sheriff or his deputy, to cause such sum and sums of money to be levied by distress and sale of such deficient constable or collector's estate, real and personal, returning the overplus, if any there be; and, for want of such estate, to take the body of such constable or collector, and imprison him until he shall pay the same; which warrant the sheriff or his deputy is hereby empowered and required to execute accordingly.' Then follows another provision, that if the deficient sum shall not be made by the first warrant, another shall issue against the town; and if its proper authorities shall fail to take the prescribed means to raise and pay the same, a like warrant of distress shall go against the estates and bodies of the assessors of such town. Laws of Massachusetts, vol. i. p. 266. Provisions not distinguishable from these in principle may be found in the acts of Connecticut, (Revision of 1784, p. 198;) of Pennsylvania, 1782, (2 Laws of Penn. 13;) of South Carolina, 1788, (5 Stats. of S.C.. 55;) New York, 1788, (1 Jones & Varick's Laws, 34;) see also 1 Henning's Stats. of Virginia, 319, 343; 12 Ibid. 562; Laws of Vermont, (1797, 1800,) 340. Since the formation of the constitution of the United States, other States have passed similar laws. See 7 Louis. An. R. 192. Congress, from an early period, and in repeated instances, has legislated in a similar manner. By the fifteenth section of the 'Act to lay and collect a direct tax within the United States,' of July 14, 1798, the supervisor of each district was authorized and required to issue a warrant of distress against any delinquent collector and his sureties, to be levied upon the goods and chattels, and for want thereof upon the body of such collector; and, failing of satisfaction thereby, upon the goods and chattels of the sureties. 1 Stats. at Large, 602. And again, in 1813, (3 Stats. at Large, 33, § 28,) and 1815, (3 Stats. at Large, 177, § 33,) the comptroller of the treasury was empowered to issue a similar warrant against collectors of the customs and their sureties. This legislative construction of the constitution, commencing so early in the government, when the first occasion for this manner of proceeding arose, continued throughout its existence, and repeatedly acted on by the judiciary and the executive, is entitled to no inconsiderable weight upon the question whether the proceeding adopted by it was 'due process of law.' Prigg v. Pennsylvania, 16 Pet. 621; United States v. Nourse, 9 Pet. 8; Randolph's case, 2 Brock. 447; Nourse's case, 4 Cranch, C. C. R. 151; Bullock's case, (cited 6 Pet. 485, note.)

Tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by the act of 1820 cannot be denied to be due process of law, when applied to the ascertainment and recovery of balances due to the government from a collector of customs, unless there exists in the constitution some other provision which restrains congress from authorizing such proceedings. For, though 'due process of law' generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings, (2 Inst. 47, 50; Hoke v. Henderson, 4 Dev. N. C. Rep. 15; Taylor v. Porter, 4 Hill, 146; Van Zandt v. Waddel, 2 Yerger, 260; State Bank v. Cooper, Ibid. 599; Jones's Heirs v. Perry, 10 Ibid. 59; Greene v. Briggs, 1 Curtis, 311,) yet, this is not universally true. There may be, and we have seen that there are cases, under the law of England after Magna Charta, and as it was brought to this country and acted on here, in which process, in its nature final, issues against the body, lands, and goods of certain public debtors without any such trial; and this brings us to the question, whether those provisions of the constitution which relate to the judicial power are incompatible with these proceedings?

That the auditing of the accounts of a receiver of public moneys may be, in an enlarged sense, a judicial act, must be admitted. So are all those administrative duties the performance of which involves an inquiry into the existence of facts and the application to them of rules of law. In this sense the act of the President in calling out the militia under the act of 1795, 12 Wheat. 19, or of a commissioner who makes a certificate for the extradition of a criminal, under a treaty, is judicial. But it is not sufficient to bring such matters under the judicial power, that they involve the exercise of judgment upon law and fact. United States v. Ferreira, 13 How. 40. It is necessary to go further, and show not only that the adjustment of the balances due from accounting officers may be, but from their nature must be, controversies to which the United States is a party, within the meaning of the second section of the third article of the constitution. We do not doubt the power of congress to provide by law that such a question shall form the subject-matter of a suit in which the judicial power can be exerted. The act of 1820 makes such a provision for reviewing the decision of the accounting officers of the treasury. But, until reviewed, it is final and binding; and the question is, whether its subject-matter is necessarily, and without regard to the consent of congress, a judicial controversy. And we are of opinion it is not.

Among the legislative powers of congress are the powers 'to lay and collect taxes, duties, imposts, and excises; to pay the debts, and provide for the common defence and welfare of the United States, to raise and support armies; to provide and maintain a navy, and to make all laws which may be necessary and proper for carrying into execution those powers.' What officers should be appointed to collect the revenue thus authorized to be raised, and to disburse it in payment of the debts of the United States; what duties should be required of them; when and how, and to whom they should account, and what security they should furnish, and to what remedies they should be subjected to enforce the proper discharge of their duties, congress was to determine. In the exercise of their powers, they have required collectors of customs to be appointed; made it incumbent on them to account, from time to time, with certain officers of the treasury department, and to furnish sureties, by bond, for the payment of all balances of the public money which may become due from them. And by the act of 1820, now in question, they have undertaken to provide summary means to compel these officers-and in case of their default, their sureties-to pay such balances of the public money as may be in their hands.

The power to collect and disburse revenue, and to make all laws which shall be necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collecting and disbursing that revenue, unless some such means should be forbidden in some other part of the constitution. The power has not been exhausted by the receipt of the money by the collector. Its purpose is to raise money and use it in payment of the debts of the government; and, whoever may have possession of the public money, until it is actually disbursed, the power to use those known and appropriate means to secure its due application continues.

As we have already shown, the means provided by the act of 1820, do not differ in principle from those employed in England from remote antiquity-and in many of the States, so far as we know without objection-for this purpose, at the time the constitution was formed. It may be added, that probably there are few governments which do or can permit their claims for public taxes, either on the citizen or the officer employed for their collection or disbursement, to become subjects of judicial controversy, according to the course of the law of the land. Imperative necessity has forced a distinction between such claims and all others, which has sometimes been carried out by summary methods of proceeding, and sometimes by systems of fines and penalties, but always in some way observed and yielded to.

It is true that in England all these proceedings were had in what is denominated the court of exchequer, in which Lord Coke says, 4 Inst. 115, the barons are the sovereign auditors of the kingdom. But the barons exercise in person no judicial power in auditing accounts, and it is necessary to remember that the exchequer includes two distinct organizations, one of which has charge of the revenues of the crown, and the other has long been in fact, and now is for all purposes, one of the judicial courts of the kingdom, whose proceedings are and have been as distinct, in most respects, from those of the revenue side of the exchequer, as the proceedings of the circuit court of this district are from those of the treasury; and it would be an unwarrantable assumption to conclude that, because the accounts of receivers of revenue were settled in what was denominated the court of exchequer, they were judicial controversies between the king and his subjects, according to the ordinary course of the common law or equity. The fact, as we have already seen, was otherwise.

It was strongly urged by the plaintiff's counsel, that though the government might have the rightful power to provide a summary remedy for the recovery of its public dues, aside from any exercise of the judicial power, yet it had not done so in this instance. That it had enabled the debtor to apply to the judicial power, and having thus brought the subject-matter under its cognizance, it was not for the government to say that the subject-matter was not within the judicial power. That if it were not in its nature a judicial controversy, congress could not make it such, nor give jurisdiction over it to the district courts. In short, the argument is, that if this were not, in its nature, a judicial controversy, congress could not have conferred on the district court power to determine it upon a bill filed by the collector. If it be such a controversy, then it is subject to the judicial power alone; and the fact that congress has enabled the district court to pass upon it, is conclusive evidence that it is a judicial controversy.

We cannot admit the correctness of the last position. If we were of opinion that this subject-matter cannot be the subject of a judicial controversy, and that, consequently, it cannot be made a subject of judicial cognizance, the consequence would be, that the attempt to bring it under the jurisdiction of a court of the United States would be ineffectual. But the previous proceedings of the executive department would not necessarily be affected thereby. They might be final, instead of being subject to judicial review.

But the argument leaves out of view an essential element in the case, and also assumes something which cannot be admitted.

It assumes that the entire subject-matter is or is not, in every mode of presentation, a judicial controversy, essentially and in its own nature, aside from the will of congress to permit it to be so; and it leaves out of view the fact that the United States is a party.

It is necessary to take into view some settled rules.

Though, generally, both public and private wrongs are redressed through judicial action, there are more summary extra-judicial remedies for both. An instance of extra-judicial redress of a private wrong is, the recapture of goods by their lawful owner; of a public wrong, by a private person, is the abatement of a public nuisance; and the recovery of public dues by a summary process of distress, issued by some public officer authorized by law, is an instance of redress of a particular kind of public wrong, by the act of the public through its authonized agents. There is, however, an important distinction between these. Though a private person may retake his property, or abate a nuisance, he is directly responsible for his acts to the proper judicial tribunals. His authority to do these acts depends not merely on the law, but upon the existence of such facts as are, in point of law, sufficient to constitute that authority; and he may be required, by an action at law, to prove those facts; but a public agent, who acts pursuant to the command of a legal precept, can justify his act by the production of such precept. He cannot be made responsible in a judicial tribunal for obeying the lawful command of the government; and the government itself, which gave the command, cannot be sued without its own consent.

At the same time there can be no doubt that the mere question, whether a collector of the customs is indebted to the United States, may be one of judicial cognizance. It is competent for the United States to sue any of its debtors in a court of law. It is equally clear that the United States may consent to be sued, and may yield this consent upon such terms and under such restrictions as it may think just. Though both the marshal and the government are exempt from suit, for any thing done by the former in obedience to legal process, still, congress may provide by law, that both, or either, shall, in a particular class of cases, and under such restrictions as they may think proper to impose, come into a court of law or equity and abide by its determination. The United States may thus place the government upon the same ground which is occupied by private persons who proceed to take extra-judicial remedies for their wrongs, and they may do so to such extent, and with such restrictions, as may be thought fit.

When, therefore, the act of 1820 enacts, that after the levy of the distress warrant has been begun, the collector may bring before a district court the question, whether he is indebted as recited in the warrant, it simply waives a privilege which belongs to the government, and consents to make the legality of its future proceedings dependent on the judgment of the court; as we have already stated in case of a private person, every fact upon which the legality of the extra-judicial remedy depends may be drawn in question by a suit against him. The United States consents that this fact of indebtedness may be drawn in question by a suit against them. Though they might have withheld their consent, we think that, by granting it, nothing which may not be a subject of judicial cognizance is brought before the court.

To avoid misconstruction upon so grave a subject, we think it proper to state that we do not consider congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination. At the same time there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper. Equitable claims to land by the inhabitants of ceded territories form a striking instance of such a class of cases; and as it depends upon the will of congress whether a remedy in the courts shall be allowed at all, in such cases, they may regulate it and prescribe such rules of determination as they may think just and needful. Thus it has been repeatedly decided in this class of cases, that upon their trial the acts of executive officers, done under the authority of congress, were conclusive, either upon particular facts involved in the inquiry or upon the whole title. Foley v. Harrison, 15 How. 433; Burgess v. Gray, 16 How. 48; ___ v. The Minnesota Mining Company at the present term.

It is true, also, that even in a suit between private persons to try a question of private right, the action of the executive power, upon a matter committed to its determination by the constitution and laws, is conclusive. Luther v. Borden, 7 How. 1; Doe v. Braden, 16 How. 635.

To apply these principles to the case before us, we say that, though a suit may be brought against the marshal for seizing property under such a warrant of distress, and he may be put to show his justification; yet the action of the executive power in issuing the warrant, pursuant to the act of 1820, passed under the powers to collect and disburse the revenue granted by the constitution, is conclusive evidence of the facts recited in it, and of the authority to make the levy; that though no suit can be brought against the United States without the consent of congress, yet congress may consent to have a suit brought, to try the question whether the collector be indebted, that being a subject capable of judicial determination, and may empower a court to act on that determination, and restrain the levy of the warrant of distress within the limits of the debt judicially found to exist.

It was further urged that, by thus subjecting the proceeding to the determination of a court, it did conclusively appear that there was no such necessity for a summary remedy, by the action of the executive power, as was essential to enable congress to authorize this mode of proceeding.

But it seems to us that the just inference from the entire law is, that there was such a necessity for the warrant and the commencement of the levy, but not for its completion, if the collector should interpose, and file his bill and give security. The provision that he may file his bill and give security, and thus arrest the summary proceedings, only proves that congress thought it not necessary to pursue them, after such security should be given, until a decision should be made by the court. It has no tendency to prove they were not, in the judgment of congress, of the highest necessity under all other circumstances; and of this necessity congress alone is the judge.

The remaining objection to this warrant is, that it was issued without the support of an oath or affirmation, and so was forbidden by the fourth article of the amendments of the constitution. But this article has no reference to civil proceedings for the recovery of debts, of which a search warrant is not made part. The process, in this case, is termed, in the act of congress, a warrant of distress. The name bestowed upon it cannot affect its constitutional validity. In substance, it is an extent authorizing a levy for the satisfaction of a debt; and as no other authority is conferred, to make searches or seizures, than is ordinarily embraced in every execution issued upon a recognizance, or a stipulation in the admiralty, we are of opinion it was not invalid for this cause.

Some objection was made to the proceedings of the marshal under the warrant, because he did not levy on certain shares of corporate stock belonging to Swartwout, and because it does not appear, by the return of the warrant, that he had not goods and chattels wherewith to satisfy the exigency of the warrant. In respect to the corporate stocks, they do not appear to have been goods or chattels, subject to such levy at the time it was made; and the return of the marshal, that he had levied on the lands by virtue of the warrant, is, at least, prim a facie evidence that his levy was not irregular, by reason of the existence of goods and chattels of the collector subject to his process.

The third question is, therefore, to be answered in the affirmative.

This renders the other questions proposed immaterial, and no answer need be returned thereto.

The other two cases-John Den, ex dem. James B. Murray et al. v. The Hoboken Land and Improvement Company. And John Den, ex dem. William P. Rathbone et al. v. Rutsen Suckley et al., are disposed of by this opinion, the same questions having been certified therein.


text: Talk:Den v. Hoboken Land and Improvement Company/Opinion of the Court

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Nutt v. Minor (59 U.S. 286)

THIS case was brought up by writ of error from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington.

The facts are stated in the opinion of the court.

It was argued by Mr. Davis and Mr. Bradley, for the plaintiff in error, and by Mr. Badger and Mr. Lawrence, for the defendant.

Mr. Justice CATRON delivered the opinion of the court.

title: Nutt v. Minor (59 U.S. 286)


text: Talk:Nutt v. Minor (59 U.S. 286)

title: Talk:Nutt v. Minor (59 U.S. 286)


text:
Nutt v. Minor (59 U.S. 286)/Opinion of the Court

Minor sued Nutt as executor of Alexander Hunter, and sought to recover on a quantum meruit for services rendered as clerk for Hunter in the marshal's office for fourteen and a half years.

The defence is, that Minor entered on the service under a special agreement to receive four hundred dollars a year.

The bill of exceptions states, that 'on the trial of this cause, the plaintiff, to maintain the issue on his part, gave evidence tending to prove that he had rendered the services mentioned in the declaration, during the period therein stated, and that the said services were faithful, valuable, and unremitting, during all the time aforesaid; and he further gave evidence by Daniel Minor, a competent witness, that the engagement under which the plaintiff commenced to serve as such clerk as aforesaid to the deceased, Hunter, was made verbally in the presence of the witness; that the witness was a surety in the official bond of the deceased, as marshal for the District of Columbia; that plaintiff is the brother of witness; that witness was the deputy marshal of Alexandria county from 1806 or 1807, down to 1826; and that the plaintiff was very familiar with the duties of clerk in the marshal's office, and that the said Hunter was wholly ignorant of the duties of said office; that the witness was desirous of having plaintiff employed as such clerk by said Hunter, and, with the plaintiff, went to the marshal's office and there met the said Hunter, and in said office, they there being present, they had a conversation about the employment of the plaintiff and the terms thereof; that witness told the said Hunter that he could find nobody who would suit the place better than the plaintiff; that Hunter said he did not know any thing about the emoluments of the office, or the value of the plaintiff's services, but he would be willing to give him $250 per annum; that witness said that was out of the question, that plaintiff could not pay his board with it; the witness then said he would give $150, if Hunter would give $250, making the salary $400 for the first year; that said Hunter said he was willing to do that; that plaintiff was dissatisfied; that witness, then and there continuing the conversation, in the presence of the said Hunter, and speaking in the same tone as in the previous part of the conversation, and standing near to the said Hunter as before, told the plaintiff that he must try and get along with the $400 for the first year, and that afterwards, when Hunter should ascertain the value of the services, he would pay him accordingly; that said Hunter made no comment on the last statement; that said plaintiff thereupon acquiesced, and entered upon the duties of said clerkship. And further proved by another witness, that during the said first year, the plaintiff complained to the witness of the insufficiency of the salary; that witness thereupon saw and had a conversation with Hunter on the subject; that he could not recollect the language of said Hunter, but it was to the effect that if he gave plaintiff more now he would waste it; and other remarks which he could not distinctly repeat, but all which left the clear impression on the mind of the witness that after the said first year the plaintiff was to be better compensated; that the witness reported the conversation to the plaintiff. Another witness, Smith Minor, a brother of the plaintiff, deposed that the witness had a conversation with Hunter in the year 1843 or 1844, in which he told Hunter that the plaintiff had not been to see witness for ten years; that the plaintiff had given as a reason that he could not get enough money from said Hunter to hire a horse to ride to the country, where witness resided, in Fairfax county, Virginia. That said Hunter spoke in the highest terms of the plaintiff's services, and of his integrity and industry; said that he owed his fortune to the plaintiff, and that plaintiff had made him from 70 to $100,000, and other words to this effect; and said that he, Hunter, was keeping all he could back from the plaintiff for a rainy day, and to support him in his old age. And further proved by the evidence of Chief Judge CRANCH, of Marshal Wallach, Marshal Hoover, and John A. Smith, clerk, and others, that the plaintiff's services were well worth the amount claimed, (to wit, $800 per annum,) and by said ex-Marshal Wallach and Marshal Hoover, that they respectively paid plaintiff $1,000 per annum for similar services, and for the discharge of the same duties which he had rendered and discharged in the time of their said predecessor, Hunter. And further gave evidence tending to show that the said office of marshal, during the time the said Hunter had held the same, was very profitable, and that said Hunter had amassed a considerable fortune therefrom.'

An account was also given in evidence by which it appeared that Minor, as clerk, had for the first year credited payments at the specific sum of 400 dollars; but that, afterwards, the credits were at irregular intervals, and usually of small sums-sometimes covering 400 dollars in the year; but often falling short of this amount. The account has the appearance of an open and running account.

The court was asked to charge the jury, on part of the defendant, that if they believed the plaintiff entered on the service upon an agreement for 400 dollars' salary for that year, and continued in it from 1834 to 1848, and during all the time, from time to time, received from Hunter in full at that rate for the whole service, then the plaintiff is not entitled to recover. This instruction was given.

The principal instruction demanded and refused was, that there was no evidence legally competent from which the jury could infer that there was any agreement between Hunter and Minor, upon other terms than for the payment of the services at the rate of 400 dollars per annum.

Another instruction was asked and refused, assuming for the defendant that Minor was bound to give Hunter notice that more than $400 was claimed after the expiration of the first year, before he could be allowed a higher rate of compensation.

As the case depended on proof of a promise, (arising by implication,) on the fact that Hunter assented to the proposition made by Daniel Minor to the plaintiff below, no proof of further notice could be required; so that the controversy must be limited to the instruction first refused.

This instruction, if given, would have taken the case from the jury by rejecting the entire evidence as legally incompetent; except such as established the special contract.

There was evidence from which the jury might infer a promise on part of Hunter to further compensate Minor; and it was the duty of the circuit court to leave the fact to the jury: indeed, the first instruction which was given went to the limit of the court's power in its bearing on the facts; the jury being told that if they found the plaintiff was to receive 400 dollars for the first year's service, and had received at that rate for the whole period, then the plaintiff was not entitled to recover.

It is ordered that the judgment of the circuit court be affirmed.


text: Talk:Nutt v. Minor (59 U.S. 286)/Opinion of the Court


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Kinsman v. Parkhurst

THIS was an appeal from the circuit court of the United States for the southern district of New York.

The facts are stated in the opinion of the court.

It was argued by Mr. Keller, for the appellants, and Mr. Gifford, for the appellee.

Mr. Keller made ten points.

The first three assailed the validity of Parkhurst's patent. The others raised the following questions:--

4. Whether the agreement, preventing one of the parties from making the article and both from selling it under a certain price, was not void as being in restraint of trade and against public policy, if either or both of the parties knew that the patent was not valid.

The 5th, 6th, and 7th related to the responsibility of Goddard.

The 8th. Whether Kinsman and Goddard were responsible for bad debts, provided they were prevented from receiving the money by the interference of Parkhurst.

The 9th again attacked the patent.

The 10th. Whether Kinsman and Goddard were responsible, if the machines which they made did not, in law or fact, infringe the letters-patent.

Mr. Gifford made eleven points.

The first related to the propriety of entertaining the appeal at all.

The 2d, 3d, and 4th. That the agreements between the parties fixed their relation and prescribed their rights and obligations.

5. That Kinsman was estopped from denying the validity of the patent.

6. That Goddard, having come in under the agreement, was in the same situation as Kinsman.

7. That the machines made by Kinsman and Goddard were covered by the patent.

8. That Kinsman had made enough to reimburse himself and fraudulently refused to account for the surplus.

9. That Parkhurst was the inventor of the thing patented.

10. That he never obtained a single feature of his invention from any other person.

11. That he had always acted fairly.

Mr. Justice CURTIS delivered the opinion of the court.

title: Kinsman v. Parkhurst


text: Talk:Kinsman v. Parkhurst

title: Talk:Kinsman v. Parkhurst


text:
Kinsman v. Parkhurst/Opinion of the Court

This is an appeal from a decree of the circuit court of the United States for the southern district of New York, in a suit in equity brought by the appellee, Parkhurst, against the appellants. The bill states, and the proofs show, that Parkhurst, being the owner of letters-patent for improvements in the machine for ginning cotton and wool, on the 22d of May, 1845, entered into a written agreement with Kinsman, the substance of which was, that Parkhurst was to be the owner of two thirds, and Kinsman of one third, of the letters-patent; that the business of manufacturing and selling the patented machines should be carried on by the parties on their joint account, in the proportions of two thirds and one third, Kinsman giving his personal attention to the business, and advancing a sum not exceeding one thousand dollars for the purchase of machinery, stock, &c., for which advance he was to be reapid out of the first profits of the business. Kinsman was to pay Parkhurst two thousand dollars in cash, and give his note for one thousand dollars, payable in sixty days. Under this agreement, the manufacture and sales of the machines were begun and carried on until the 9th day of February, 1846, at which time the parties entered into a new agreement, the substantial part of which was as follows:--

'Whereas the party of the first part has advanced moneys, and become responsible for various sums of money which have been expended in getting up machinery, and tools, and stock, &c., for the manufacture of burning and carding machines, which were invented by the said Parkhurst; one third part of which he sold and assigned to the party of the first part: Now, therefore, the party of the first part, in consideration of one dollar in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, hereby covenants and agrees, that, as soon as the profits which have accrued, and which may hereafter arise, from the manufacture and sale of the said machines, so invented by the party of the second part, and so made and sold by the party of the first part, shall be sufficient to pay all legal demands for the purchase of machinery, tools, &c., &c., and other expenses incurred by said party of the first part, then he, the said party of the first part, shall and will discontinue the manufacture and sale of said machines, invented as aforesaid, and that all machines which he shall manufacture and sell after this date should not be sold for a less profit than one hundred dollars each, and that he will be accountable for one hundred dollars profit on each and every machine made and sold from this day, unless he has the written consent of the party of the second part to sell at a less price.'

'The party of the second part, in consideration of one dollar to him in hand paid by the party of the first part, the receipt whereof is hereby acknowledged, and also in consideration of the agreements aforesaid, hereby covenants and agrees with the party of the first part, that he will go on and manufacture the machines aforesaid as soon as the party of the first part discontinues the same, and that he will not sell any macnine for a less profit than one hundred dollars, without the written consent of the party of the first part, and that he will pay over to the party of the first part one third part and share of the said profits upon all machines which he makes and sells hereafter, and that, for any machines which he may manufacture, or have manufactured, before the discontinuing of the building of the same by the party of the first part, shall be subject to the same restrictions of selling for at least one hundred dollars profit on each machine, one third of which shall be paid to the party of the first part.'

The original and supplemental bills aver, that under this agreement Kinsman prosecuted the business, and not only reimbursed himself for the cost of the machinery, tools, &c., and all his other advances, but, in violation of his agreement, continued the manufacture and sale of the machines, so as to receive large profits, of which it prays an account, and also an injunction to restrain the further making or vending of the machines in violation of the agreement. A temporary injunction was applied for and obtained on the third day of July, 1847. On the 29th day of June, 1847, Kinsman made a transfer to the appellant, Goddard, who was then a clerk in his employment, of the tools, stock, &c., used in the manufacture; and, after Kinsman was enjoined, the business was carried on in Goddard's name. A supplemental bill was then filed, making Goddard a party, charging him with notice of all the complainant's rights at the time of the transfer to him, alleging the transfer itself to have been only colorable, and praying an account and decree as against him and Kinsman. The circuit court made an interlocutory decree, declaring Parkhurst's right to an account, referring the cause to a master, to take and state the accounts, directing the master, in taking the accounts, to ascertain and report the number of machines made and sold by Kinsman and Goddard, or either of them; the advances made by Kinsman and Goddard, or either of them; and charging a profit of one hundred dollars on each machine sold.

The master reported; and his report, not being excepted to, was confirmed, and a final decree made, that Kinsman and Goddard should pay to the complainant the amount reported by the master to be due from them. From this decree the appeal now before us was taken.

The principal objection made by the appellants to the decree of the court below is, that Parkhurst was not the original and first inventor of the thing patented. We are not satisfied that this is made out. But we have not found it necessary to come to a decided opinion upon this point, because we are all of opinion that, under the agreement of the ninth of February, 1846, the invalidity of the patent would not afford a bar to the complainant's right to an account. Having actually received profits from sales of the patented machine, which profits the defendants do not show have been or are in any way liable to be affected by the invalidity of the patent, its validity is immaterial. Moreover, we think the defendants are estopped from alleging that invalidity. They have made and sold these machines under the complainant's title, and for his account; and they can no more be allowed to deny that title and retain the profits to their own use, than an agent, who has collected a debt for his principal, can insist on keeping the money, upon an allegation that the debt was not justly due.

The invalidity of the patent does not render the sales of the machine illegal, so as to taint with illegality the obligation of the defendants to account. Even where money has been received, either by an agent or a joint owner, by force of a contract which was illegal, the agent or joint owner cannot protect himself from accounting for what was so received, by setting up the illegality of the transaction in which it was paid to him. Thus where a vessel engaged in an illegal trade carried freight which came into the hands of one of the part owners, and on a bill filed by the other part owner for an account, the defendant relied on the illegality of the trade, but it was held to be no defence. Sharp v. Taylor, 2 Phil. Ch. R. 801. So in Tenant v. Elliot, 1 B. & P. 3, the defendant, an insurance broker, having effected an illegal insurance for the plaintiff, and received the amount of a loss, endeavored to defend against the claim of his principal by showing the illegality of the insurance, but the plaintiff recovered. See also McBlair v. Gibbes, 17 How. 236.

Here, however, as already observed, there was no illegality; it is simply a question of failure of title, and as that does not appear in any manner to have affected the profits which the defendants received, there can be no ground to allow it to be shown in defence. Bartlett, ad'r, v. Holbrook, 1 Gray's R. 114; Wilder v. Adams, 2 Wood. & Minot, 329, are in point.

Similar views are decisive against the objection that this was a contract in restraint of trade. It was certainly competent for two persons, being joint owners of letters-patent, whether valid or invalid, to enter into a copartnership for the manufacture and sale of the patented machines, and to stipulate that one of them should alone conduct the business. This was a provision for the prosecution of the business in a particular mode, and not for its restraint. It is a very common and not an illegal stipulation in partnership articles, that neither partner shall carry on that business for which the partnership is formed, outside of the partnership and for his own account. Besides, if the contract to refrain from the manufacture could not be enforced, as being against public policy, this would afford no answer to a claim for an account of profits actually realized by prosecuting the business, there being no connection between the illegal stipulation and the profits of the business.

It was insisted by the appellants that they did not act under the complainant's title, but under some right acquired from one Sargent. We are not satisfied that Sargent had even an inchoate right to a patent for the machines which the appellants made and sold. But even if he had, the defendant, Kinsman, could not secretly acquire the outstanding right of Sargent, if any, and set it up against his joint owner, Parkhurst, in derogation of his rights under the agreement of the 9th of February, which Kinsman entered into with knowledge of this alleged title of Sargent; and Goddard is bound by the same equities, for he not only purchased pendente lite, and with actual notice of the suit, but we are satisfied the sale to him was made to enable Kinsman to attempt to evade the injunction.

The appellant, Goddard, objects that he has been charged by the final decree, jointly with Kinsman, for the profits on sales of machines made before the transfer to him by Kinsman. If this be so, it arises from the report of the master, who was directed by the interlocutory decree to report the sales made by Kinsman and Goddard, or either of them, and the advances and expenditures of them, or either of them.

If his report was in this or any other particular erroneous, it was incumbent on the defendants to have pointed out the error by an exception filed pursuant to the rules of the court on that subject. But no exception was filed, the report was confirmed, and the final decree was drawn up and entered without objection by the appellant, Goddard, reciting that it appears by the report of the master that the sum of $23,220 28/100 is due and owing by Kinsman and Goddard to Parkhurst, and thereupon proceeds to decree them to pay that sum. When a motion to dismiss the appeal was made at a former day, on the ground that the master's report not having been excepted to, and the appellants not having objected to the final decree, there was nothing open on this appeal, the appellant's counsel declared that the appeal was designed only to review the interlocutory decree which had decided the merits of the cause, and that, unless error was found therein, there was no ground for the appeal. The motion to dismiss the appeal was overruled, the court being of opinion that it was open to the appellants to review the decision made by the interlocutory decree. But the interlocutory decree does not direct the master to charge Goddard and Kinsman jointly with profits on sales made by Kinsman alone. If the master put such an interpretation on the decree, it was an erroneous interpretation, and should have been brought before the court below by an exception. It is too late to object to it here, for the first time.

The appellants also insist that they were charged with profits not actually received, by reason of the failure of the purchasers to pay, and other causes. But this was in accordance with the agreement of the 9th of February, which stipulates that Kinsman shall be accountable for one hundred dollars profit on each machine made and sold by him. By force of this stipulation, he and Goddard, who acted with him under this agreement, took the risk of bad debts. It appears, from the master's report, that evidence, tending to show that some of these losses were attributable to the interference of Parkhurst, was offered to the master and rejected by him. But, no exception having been taken to bring this point before the circuit court, it is not open here.

We have considered all the objections to the decree of the circuit court, and, finding them untenable, we order the decree to be affirmed, with damages and costs.


text: Talk:Kinsman v. Parkhurst/Opinion of the Court


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Ransom v. Winn

THIS case was brought up by appeal from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington.

Ransom filed a petition in a cause then pending in the circuit court of the District of Columbia, and all that the record exhibited with respect to said cause was its title, namely:--

William S. Herrman v. Isabella Davis and Thomas Winn, administrators, Ignatius T. Davis, Francis R. R. Davis et al., heirs at law of Thomas J. Davis, deceased. In chancery.

But upon what ground Herrman filed a bill against the administrators and heirs of Davis, the record did not show. The subsequent proceedings are stated in the opinion of the court.

It was argued by Mr. W. S.C.ox, for the appellant, and Mr. Davis, for the appellees.

Mr. Justice McLEAN delivered the opinion of the court.

title: Ransom v. Winn


text: Talk:Ransom v. Winn

title: Talk:Ransom v. Winn


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Ransom v. Winn/Opinion of the Court

This is an appeal from the circuit court of the United States for the District of Columbia.

The proceedings on which the appeal was taken were had on a petition of the appellant, Ransom, in the circuit court of the District, stating that he was the creditor of the intestate for $8,113.48, a balance due on merchandise furnished, and other matters of account. An account was filed with the petition, showing the items charged, and he prayed to be made a party in a suit pending; and he adopts the allegations and prayers of the bill, and calls upon the defendants to answer, &c.

No answer was filed by the defendants, nor does any part of the original bill to which reference is made, or any proceeding in that suit, appear on the record.

An account is stated of the value of produce purchased by Ransom, and forwarded to Thomas J. Davis, and priced as of the 28th May, 1847, which, in the whole, amounted to $31,879.80. The entire expenditure in purchasing the produce, including losses, amounted to the sum of $21,280.43, leaving a profit of $10,599.37. A further account is stated in detail of purchases of grain amounting to a large sum. An auditor was appointed by the court, who, in a long report, states the correspondence between Ransom and Davis, which conduces to show that Ransom was engaged in purchasing wheat and other grain, to be forwarded to Davis, who owned a mill in Georgetown. Exceptions were taken to the report of the auditor, and the court ordered that the cause be again referred to him, with instructions to take such testimony as may be offered by Ransom, on the points mentioned in his affidavit filed in the cause; and that he report to this court, as soon as convenient, the substance of such testimony, and what changes, if any, such additional testimony may render proper in the report heretofore made by said auditor in reference to said claim.

The auditor returned the additional testimony which he took, but made no alteration in his former report. It was admitted in the argument that the estate of Davis was insolvent, and the object of Ransom seemed to be, to enforce his claim against the estate of Davis in preference to other creditors.

From the record, the nature of the suit, in which Ransom prayed to become a party, does not appear. It may have been a suit by other creditors, but no notice is taken of them in the subsequent proceeding, nor is there any pleading except the petition to be made a party. This proceeding is irregular, and cannot be sustained. The exceptions to the report of the auditor were overruled by the circuit court, and the petition of Ransom was dismissed.

Where a chancery suit involves matters of account, the action of a master should be had in the inferior court, and the items admitted or rejected should be stated, so that exception may be taken to the particular items or class of items, and such a case should be brought before this court on the rulings of the exceptions by the circuit court.

The bill is dismissed at the plaintiff's costs, without prejudice.

title: Ransom v. Winn/Opinion of the Court


text: Talk:Ransom v. Winn/Opinion of the Court


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Doe v. Carpenter

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

It was an ejectment, brought by the McCalls against Carpenter and Reitz, to recover six blocks, seventy-two lots, and one half block, in Lamasco city, in the county of Vanderburgh, in the State of Indiana, of which blocks and lots Carpenter and Reitz were in possession.

The claim of the plaintiffs was founded upon the following circumstances:--

Prior to the 21st of March, 1840, certain persons were possessed of the city of Lamasco, and also of the southeast quarter of section 23, in town 6, south of range 11, west; consisting of 160 acres. They owned this property in the following proportions, namely:--

John Law, 1/8; William H. Law, 2/8; Boston and Indiana Land Company, 1/8; Lucius H. Scott, 2/8; James B. McCall, 2/8.

On the 21st of March, 1840, the proprietors (the Boston Land Company subsequently acquiescing) signed an agreement under seal, to divide the town lots and also the quarter section amongst them. The town lots were divided into eight subdivisions, whereof each proprietor of 2/8 had two, and the quarter section was also divided into eight parts, allotted in the same proportion.

Before deeds of partition could be exchanged, McCall sold and conveyed to Hugh Stewart all his undivided interest in the town property, without including his share in the quarter section. This deed purported to be executed on 18th June, 1840. It was not in the record, being offered in evidence upon the trial, but rejected.

Shortly after the execution of this deed to Stewart, McCall died, leaving three infant children, two of whom were non-residents of the State, the lessors of the plaintiff in error. These children thus became the unquestioned heirs of their father's interest in the quarter section, which was not included in the deed to Stewart.

In order to bring about a partition, regularly, two bills ought to have been filed; one for the partition of the town property, in which the interest of the father of the infants appeared to be held entirely by Stewart, they themselves having none; and the other by their co-tenants in the quarter section in which Stewart had no interest, and, therefore, should not have been a party.

It so happened, however, that at the March term, 1842, of the Vanderburgh circuit court, a bill was filed by John Law, William H. Law, Lucius H. Scott, and Hugh Stewart, in their own right, and also the trustees of the Boston Land Company. The nature of the bill and the proceedings under it are stated in the opinion of the court; as are also the proceedings in the ejectment which gave rise to the case now under consideration.

It was submitted on printed arguments by Mr. Dunn, for the plaintiffs in error, and Mr. Baker, for the defendants.

Mr. Justice NELSON delivered the opinion of the court.

title: Doe v. Carpenter


text: Talk:Doe v. Carpenter

title: Talk:Doe v. Carpenter


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Doe v. Carpenter/Opinion of the Court

This is a writ of error to the circuit court of the United States for the district of Indiana.

The suit in the court below was an action of ejectment by the plaintiffs to recover the possession of certain town lots in the city of Lamasco. They proved on the trial, that their father, James B. McCall, was the owner of an undivided fourth of a certain part of said city, and had been in the possession of the same, and died in 1840; and that they were his heirs at law.

The defendants set up, in bar of the action, certain proceedings in partition, embracing the premises in question, in the circuit court of the fourth judicial district of Indiana.

The bill in partition was filed by the tenants in common of the town lots with McCall in his lifetime, against his children and heirs, the present plaintiffs. The two sons were non-residents of the State, at the time, and did not appear or answer to the bill. The daughter was a resident of the State, and was served personally with the subpoena. She and the younger brother were under age, for whom guardians ad litem were appointed to the court.

The bill, after setting out the interests of the respective tenants in common, and that partition had been agreed upon between them, describing particularly the manner in which the partition was to be made, and the portions assigned to each in the arrangement, charges, that after the agreement, J. B. McCall sold and conveyed all his undivided interest, to wit, one undivided fourth part of the town property, to Hugh Stewart for the sum of $11,500, and that shortly afterwards, and before he executed deeds of partition, according to the agreement, departed this life, leaving three children, his heirs at law, James B. McCall, non-resident of this State, and Henry McCall, also a non-resident, and Mary S. McCall, who are infants under the age of twenty-one years. The bill further charges, that the several proprietors, including Stewart, the grantee of McCall, had already interchanged deeds of partition, according to the agreement, or were ready to do so; and that they were ready to execute to the heirs deeds of all their right to subdivision No. 3 and 6 of the southeast quarter of section twenty-three, in town, 6, and of all other portions to which the heirs were entitled; and then closes by stating, that, inasmuch as your orators are unable to obtain relief in the premises, except by an interposition of the court of chancery, they, for the purpose of perfecting their several titles to their respective portions of said property, pursuant to the agreement in partition, pray that the heirs be made defendants; that a guardian ad litem be appointed for the two infant heirs, that they may answer the bill; and if the same should be found true, that the court would appoint three commissioners to make deeds of partition, &c.

The bill was taken as confessed against the adult heir, and against the others upon the answer put in by the guardian; no proof, for aught that appears, having been given. The court decreed that the prayer of the complainants be granted; and that C. D. Bourne, C. Baker, and J. E. Blythe be commissioners to make deeds, &c., to the complainants, agreeably to the partition mentioned in the bill, and pursuant to, and agreeable with the said sale and conveyance made by James B. McCall, deceased, of his undivided interest in said town property, to the complainant, Hugh Stewart.

Deeds were executed in pursuance of the directions in the decree, and reported to the court and confirmed.

It appeared that McCall, besides being a joint owner in the town property which he had conveyed to Stewart, also owned, jointly with the complainants, (except Stewart,) one fourth of the southeast quarter of section No. 23, township 6, adjoining the town, and which descended to his heirs and was embraced in the bill of partition.

The counsel for the plaintiffs, when this record of partition was offered in evidence by the defendants, objected to the admission, on the ground that the decree was void for want of jurisdiction of the court; and also for fraud apparent on the face of the proceedings. The objection was overruled. It appeared that the defendants claim title from Stewart, the grantee of McCall.

They then rested, and the counsel for the plaintiffs then produced and read the conveyance from their father to Stewart mentioned in the bill of partition, and offered to prove that the conveyance was obtained by fraud on the part of Stewart, and also, that, at the time of its execution, their father was of unsound mind and incapable of making a valid contract; that said unsoundness was well known to Stewart, and that he took advantage of it in obtaining the deed; that the consideration of $11,500 mentioned was never paid, that $6,000 in depreciated state scrip was all that was ever paid or agreed to be paid, and that the defendants purchased of Stewart with full knowledge of all the facts; that the real estate purported to be conveyed by the deed was worth at the time at least $20,000.

To all which evidence the defendant's counsel objected, on the sole ground that the plaintiffs were barred by the record of the proceedings in partition, which objection was sustained by the court, and the evidence excluded.

The jury, under the direction of the court, rendered a verdict for the defendants.

We think the court erred in excluding this evidence.

The binding effect of the decree, in the chancery suit, is sought to be maintained upon the ground that the proceedings were instituted not only for the purpose of making partition, but also to quiet the title between the parties, and especially the title of Stewart under the conveyance from McCall, and that the children and heirs were made parties for this reason, and that the proceedings, in this aspect, being in the nature of proceedings in rem, would operate upon the title and bind the heirs, whether they appeared or not, if notice had been given in conformity with the statute or law of the State.

But we think the obvious answer to this view is, that the bill has not been framed in any such aspect, or for any such purpose, either in the body of it or in the prayer. There is no suggestion of any imperfection in the title of Stewart, under the deed of McCall, or of any imputation or questioning of the genineness or validity of it; nor does the prayer ask for a decree to confirm the deed or the title to Stewart.

The only pretext for the ground now taken to bind the heirs, is in the allegation as follows, namely: 'As your orators are unable to obtain relief in the premises, except by the interposition of a court of chancery, they, for the purpose of perfecting their several titles to the respective portions of said property, agreeably with and in pursuance of said agreement of partition, would respectively pray, &c.,' and then follows the prayer for partition.

Now, it is manifest that this allegation refers simply to the subject of providing for the mutual releases or conveyances of the joint interest in the property, so that each might become vested, severally, with the title to his respective share, and nothing beyond this, as is further evinced by the prayer of the bill, which is, that if the allegations in the bill should be found true, not that Stewart should be quieted in his title under McCall, but that three commissioners be appointed to make the partition, &c. So in respect to the decree. It simply orders that the prayer of the bill of the complainants be granted, appoints the commissioners, and directs them to make the partition, by the execution of the deeds of conveyance, release, and partition to the complainants, according to their respective rights, &c.

The deeds of the commissioners have also been referred to as helping out the binding effect claimed for these proceedings.

The deed of the commissioners to Stewart may be taken as a sample of all of them. It recites their appointment, the object of it, to wit, execute the partition deeds, &c., and adds: 'and to perfect the title of said Hugh Stewart to the interest heretofore conveyed to him in said property, by the said McCall in his lifetime,'-they then go on and convey 'all the right, title and interest, claim and demand whatsoever of the said James B. McCall, deceased, at the time of his death, and of his heirs, naming the three defendants, since his decease, or at any other time, and of all or any other heirs or heir whatsoever, of the said James B. McCall, deceased,' &c.; seeking to bind those not made defendants as well as those who were.

The answer to all these recitals is, that they have no binding force or effect beyond what is derived from the decree of the court appointing the commissioners; and as that simply conferred authority on them to execute mutual conveyances and releases for the purpose of making partition between the parties, any recital going beyond this is nugatory. Neither should the simple confirmation of the deeds by the court be construed as intending to go beyond the terms and directions of the decree.

The case, then, is brought down to the question, so far as the effect and operation of the chancery suit are concerned, whether or not these defendants are estopped by the decree from impeaching the deed of their father to Stewart. And, in respect to this question, we may concede that, for the purposes of partition, the court, under the statute and law of Indiana, had jurisdiction of the subject-matter and were competent to make the partition.

The point is, whether or not the right of the plaintiffs to impeach this deed was involved in these proceedings, so as to be deemed res judicata, and all further examination or inquiry foreclosed.

As we have already seen, the question as to its validity was not presented upon the pleadings in that suit, nor did it become the subject of inquiry or examination in the course of the proceeding, nor did it enter into the decree of the court in the determination of the case. And the better opinion is, that no such question could have been raised by the defendants in that proceeding, if they had sought to invalidate the deed. The most that the court would have been justified in doing, in the usual course of proceeding, would have been to have stayed the suit in partition till the question could have been settled at law. The proceedings in partition are not appropriate for a litigation between parties in respect to the title.

As to the binding effect of judgments or decrees, the general rule is, that the judgments of courts of concurrent jurisdiction are not admissible in a subsequent suit, unless they are upon the same matter, and directly on the point; when the same matter is directly in question, and the judgment in the former suit upon the point, it will then be as a plea, a bar, or as evidence, conclusive between the parties. 2 Phillips Ev. 13. So a judgment is conclusive upon a matter legitimately within the issue, and necessarily involved in the decision. 4 Cow. 559; 8 Wend. 9; C. & H. notes, part 2, note 22.

Testing the case by this principle, it seems quite clear that the proceedings in partition constituted no defence to this action; no question was made upon the deed by the pleadings, nor any judgment given upon it; nor was any such question necessarily involved in the partition suit.

Besides, two of the defendants, plaintiffs here, were non-residents of the State, and neither appeared, nor were served personally with process. As to them, the proceedings were purely in rem, and the decree acted only upon the res or subject-matter. And, as to the subject-matter, the bill on its face shows, that these two plaintiffs had no interest in or connection with the partition, except as respected the southeast quarter of section twenty-three. This tract was not included in the deed to Stewart, and of course descended to the heirs. Being tenants in common with the complainants, the decree of partition might operate upon it and bind them. But, as to the premises now in dispute it could have no effect, as it appears, by the averment of complainants themselves, the defendants had no interest in it. The title was in Stewart. The decree, therefore, operating simply in rem, could only operate upon such interest or estate of the defendant as was shown in the bill, and properly the subject of the partition against them. Beyond this, it was ineffectual, either as to its direct operation, or when in question collaterally.

Proceedings of this character are allowed to conclude the rights of the absent party, only as it respects property, whether real or personal, involved in the suit, the property of the party proceeded against. They act upon the thing, and bind the party in respect to it. Now, that in this case, so far as the two non-resident defendants were concerned, was their interest in the southeast quarter of section twenty-three? They were strangers as regarded any other piece or parcel of land involved in the proceedings.

Then, as to Mary, the daughter, the process was served personally upon her; she was an infant, and appeared by a guardian ad litem. But this was simply an appearance, as the representative of her interest in the undivided parcel which had descended to the heirs. The bill shows that she had no interest in the partition, except as to this: all the other parcels of which partition was sought belonged to other parties, and concerned them alone; as to these, John Doe might have been made a party with as much propriety as this defendant. It may be, as we have already said, that these proceedings conclude the question of partition from afterwards being agitated, a question which it is not now necessary to decide; but we think it clear that they cannot conclude the title even of a party to them, whom the proceedings themselves show had no interest or concern in the question of partition.

Upon the whole, after the best consideration we have been able to bestow upon the case, we think the court erred in excluding the evidence offered to impeach the deed of McCall to Stewart, and that the judgment below should be reversed, and a venire de novo awarded.

Mr. Justice DANIEL and Mr. Justice CAMPBELL dissented.

title: Doe v. Carpenter/Opinion of the Court


text: Talk:Doe v. Carpenter/Opinion of the Court


text:
Ex parte in the Matter of Wells

THIS was a motion for a writ of habeas corpus, founded on a petition by Wells, setting forth the following circumstances, viz: -

That Wells was convicted of murder, at the December term, 1851, of the criminal court for the county of Washington, District of Columbia, and was sentenced by said court to be hanged on the 23d of April, 1852, on which said 23d of April, Mr. Fillmore, then President of the United States, granted 'a pardon of the offence of which he was convicted, upon condition that he be imprisoned during his natural life, that is, the sentence of death is hereby commuted to imprisonment for life in the penitentiary at Washington.'That while under the constraint of duress of imprisonment and duress per minas he subscribed an acceptance of the pardon with the condition annexed.

That on the 18th of April, 1855, he applied to the circuit court of the District of Columbia, for a writ of habeas corpus, which was granted, and that court proceeded to inquire into the cause of his imprisonment.

That the circuit court decided that the President had power to commute the punishment of death, and remanded him to the penitentiary, where he has ever since been confined.

He therefore prayed this court to issue a writ of habeas corpus.

In this case, as in the case of ex parte Watkins, (7 Pet. 571,) it was admitted that all the facts existing in the case had been laid before the court, exactly as they would appear if the habeas corpus had been duly awarded and returned; so that the judgment which the court were called upon to pronounce, was precisely that which ought to be pronounced upon a full hearing upon the return to the writ of habeas corpus; and it was accordingly so argued at the bar.

It will be seen also by a reference to that case that the court decided that the judgment which was pronounced upon the petition of Mr. Watkins, was an exercise of appellate and not of original jurisdiction.

The petition for a habeas corpus was sustained by Mr. Charles Lee Jones for the petitioner, and opposed by Mr. Cushing, Attorney-General.

The subject is so fully discussed in the opinion of the court and the dissenting opinions of Mr. Justice McLean and Mr. Justice Curtis, that it is not thought necessary to give the arguments of counsel.

Mr. Justice WAYNE delivered the opinion of the court.

title: Ex parte in the Matter of Wells


text: Talk:Ex parte in the Matter of Wells

title: Talk:Ex parte in the Matter of Wells