text:
Mulligan v. Corbins/Opinion of the Court

The only question that arises in this case, which it is competent for this court to decide, is, whether the act of the legislature of Kentucky, passed on the 4th day of April, 1861, is repugnant to the Constitution of the United States, because it impairs the obligation of a contract.

If the legislature had the power to release to the defendants in error the right of the State to the property in controversy, both common justice and the good name of the commonwealth demanded the exercise of that power, under the circumstances of this case. It appears that the affairs of the old Bank of Kentucky were substantially under the control of the State when the house and lot were seized as the property of Barry, and sold. The purchasers at that sale had a right to conclude that the State would never interfere to their prejudice, and no other party could, if Brindley died without heirs. The legislature, after the facts were known, would have been guilty of a great wrong, if they had refused to pass an act to give validity, as far as it had power to do so, to a sale of which the State derived the benefit.

The general power of the legislature to grant to individuals the lands belonging to the State is not denied; but it is claimed there was a restraint in this instance, on account of the previous contract, concerning the property, between the auditor and Monroe.

It is charitable to suppose that the auditor would never have employed Monroe to dispossess the Corbins, had he known the manner in which they acquired possession, and that his proceedings were prompted by a commendable zeal for the true interests of the State.

But, after all, did the contract with Monroe have the effect claimed for it by the plaintiff in error? It certainly did not vest in him the title to the property. If, as is admitted, the auditor had the authority to contract with an attorney-atlaw to give him one-half the escheated estate, as compensation for its recovery, still, this contract did not confer on him a license to sell the property after it was recovered, or to make any disposition of it that would bind the government.

The legislature had intrusted the management of escheated property with bonded officers, and confided to them the exclusive power of selling, under the written directions of the auditor. #fn-s-s In no other mode could the legal title of the State be divested, and it nowhere appears that Baxter, in whose name the suit against the Corbins was prosecuted, and who was the agent for escheated estates in Fayette County, where the property is situated, was a party to the sale to Mulligan, or that he ever sanctioned it. Viewing the transaction in the aspect most favorable to Mulligan, it is apparent that his rights, under this contract, are those which belonged to Monroe, and that he has no other or better rights than Monroe had. The case, then, resolves into this question: what were the rights of Monroe, and how are they affected by the act of the legislature? The answer to this question is very plain, and relieves the proceeding of any difficulty.

When the escheat was perfected, the legal title to the entire property was vested in the State; but as the State, through its auditor, had bargained with Monroe to concede a moiety to him for his services, it follows that the State was under obligations to convey, in some proper form, this moiety to him. This left the State the undisputed owner of one-half the property, with such power of disposition as the legislature, in its wisdom, should see proper to give it. The act in question does not attempt to interfere with any privilege which belonged to Monroe, and we have no right to presume it was passed with any such intention. It does not profess to grant to the Corbins any particular estate, but simply releases to them whatever interest the State had to the property they occupied, and as the State undoubtedly had an interest in it to the extent of one moiety, how can it be said that the obligation of the contract between the auditor and Monroe was impaired by this statute?

The statute operated rightfully on the moiety owned by the State, and there is no authority for saying the legislature meant to do anything more.

It is not our province to decide any other point in this case, and as the act of the legislature of Kentucky does not, either in terms or by necessary implication, impair the obligation of the auditor's contract with Monroe, it follows that the judgment of the Court of Appeals must be

AFFIRMED.


text: Talk:Mulligan v. Corbins/Opinion of the Court

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


text:
United States v. Gilmore (74 U.S. 491)

ERROR to the Circuit Court for Nebraska; the case having been submitted by Mr. Ashton, Assistant Attorney-General, for the United States.

No argument on the other side.

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

title: United States v. Gilmore (74 U.S. 491)


text: Talk:United States v. Gilmore (74 U.S. 491)


text:
United States v. Gilmore (74 U.S. 491)/Opinion of the Court

This is an action of debt upon the bond of Gilmore, one of the defendants in error, as receiver of public moneys 'for the district of lands subject to sale in the Territory of Nebraska,' and also as a depositary of public moneys.

Upon the trial the defendants claimed a credit for the hire of certain clerks employed by Gilmore as such depositary, and offered proof in support of the demand. The attorney of the United States objected to the admission of the evidence upon several grounds. One of them was, that it must first be shown that the claim had been exhibited to the proper accounting officer of the treasury and disallowed, and that the exhibition and disallowance could be proved only by the certificate of such officer. 'Whereupon the court stated it would permit the evidence, and control the matter by instructions to the jury. Objections overruled, and ruling excepted to by plaintiffs.'

The same things occurred with reference to a claim for office rent, set up by Gilmore as such depositary.

'I presented these claims to the accounting officer, and they were disallowed.'

To what officer they were presented is not disclosed. This is all the testimony the bill of exceptions contains upon the subject.

The statutory provisions prescribing what shall be done by the debtor in such cases are found in the 4th section of the act of March 3d, 1797. That section, so far as it is material to be considered in the case before us, is as follows:

'In suits between the United States and individuals, no claim for a credit shall be admitted upon the trial but such as shall appear to have been presented to the accounting officers of the treasury for their examination, and by them disallowed in whole or in part.'

Those officers were then the auditor and comptroller. There was but one of each at that time. It was made the duty of the auditor 'to receive all public accounts, and after examination to transmit the accounts, with the vouchers and certificate, to the comptroller for his decision thereon.'

The act of the 25th of April, 1812, created the General Land Office, and transferred to the commissioner the duties of the auditor in respect to all accounts relating to the public lands. The act of March 3d, 1817, created four additional auditors and one additional comptroller. It gave the charge of all accounts accruing in the Treasury Department to the first auditor, and made it his duty to report them to the first comptroller. The language employed is the same as that used in the act of 1797. This did not affect the duties of the Commissioner of the General Land Office as to all accounts relating to the public lands, which the act of 1812 had devolved upon him.

Receivers and depositaries are required to keep accounts of their contingent expenses. Those accounts are separate and distinct from those of their receipts and disbursements of the public moneys. Where the offices of receiver and depositary are united in the same person, the expense accounts of the two offices are nevertheless required to be kept separately from each other.

The claims in question in the case before us grew out of that branch of Gilmore's duties which related to his office of depositary, and had no connection with his office of receiver. They should, therefore, have been presented to the first auditor for examination, and afterwards to the first comptroller for his final decision. If disallowed, the disallowances would have appeared in the 'statement of the differences of account' transmitted by the auditor to the comptroller with the accounts, vouchers, and certificate, as required by the statute. If the comptroller had confirmed the decision of the auditor, a transcript of the proceedings of those officers would have been the proper evidence for the defendants to produce.

If the claims were not presented until after the account was closed upon the books of the treasury, still it was necessary to submit them for examination to both those officers. The action of both was necessary. A transcript showing that action would have been sufficient. Parol evidence in such cases is wholly inadmissible. Evidence from the books of the treasury in some form is indispensable.

These remarks have no application to those provisions of the section under consideration which have not been referred to.

The court should not have permitted any proof of the claims to be given until the proper foundation for it had been laid. When the defendants failed to produce the evidence necessary to warrant the introduction of such testimony, all which had been given should have been excluded, and the claims withdrawn from the consideration of the jury. To allow them to remain in the case was an error, and any instruction given afterwards, short of their withdrawal, was unavailing to cure it. The course proposed to be pursued when the objection by the district attorney was taken, could hardly fail, under any circumstances, to mislead and confuse, and to prevent the proper trial of the cause. The object of pleading is to concentrate the controversy upon the questions of fact and of law, which should control the result. The value of the system in the administration of justice can hardly be too highly estimated. The exclusion from the testimony of everything irrelevant and incompetent is not less important.

Was the error committed by the admission of the testimony objected to subsequently remedied?

Nothing further upon the subject appears in the record but the following passages at the close of the bill of exceptions:

'The plaintiff requested the court to charge the jury as follows:

'1st. That in this action no claim for credit can be admitted as a defence, unless it is first shown to the jury that such claim was presented to the proper officer of the government for examination, and by such officer disallowed in whole or in part; or that the defendant, Gilmore, first shows that he was prevented from exhibiting such claim or account of expenses at the treasury by absence from the United States, or some unavoidable accident.'

Another instruction, not material to be stated, was also asked. The bill then proceeds:

'Which said two points were not given by the court in the form requested, but were substantially given in the oral charge of the court to the jury. The first point and the second were given with a modification, to which the plaintiffs then and there excepted.'

What the modification of the first instruction was to which this exception relates is not shown. We cannot, therefore, consider it.

Whether the testimony in support of the claim was properly in the case was a question for the court, and not for the jury. Yet it was left to the latter for them to determine. It is clear that the incompetent testimony which had been admitted was not withdrawn from their consideration.

The judgment is, therefore, REVERSED, and the cause will be remanded to the Circuit Court with instructions to issue a

VENIRE DE NOVO.


text: Talk:United States v. Gilmore (74 U.S. 491)/Opinion of the Court


text:
Kelly v. Owen.

APPEAL from the Supreme Court of the District of Columbia.

The case was this:

In 1848, one Miles Kelly, a native of Ireland, emigrated to the United States, and settled in the District of Columbia. In January, 1853, he married Ellen Duffy, and in May, 1855, was naturalized. He subsequently acquired several lots in the city of Washington, and died in March, 1862, seized and possessed of them, intestate and without issue; but leaving to survive him, in the United States, the said Ellen, his widow, and two sisters, Ellen Owen and Margaret Kahoe. His widow claimed the residue of his estate, after the payment of debts, to the exclusion of his sisters, Mrs. Owen and Mrs. Kahoe. These set up that they were entitled to a share of the estate, as the heirs-at-law of the deceased, and brought the present suit on the equity side of the Supreme Court of the District, for the sale or partition of the estate. The court decided in favor of the widow, and by its decree gave her the entire estate.

From this decree the sisters appealed to the Supreme Court in banc, and by this latter court the decree was reversed. The widow then appealed to this court.

On the 10th of February, 1855, Congress passed an act, entitled 'An act to secure the right of citizenship to children of citizens of the United States, born out of the limits thereof,' the second section of which provides, 'that any woman, who might lawfully be naturalized under the existing laws, married, or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen.'

All the parties, the widow and the two sisters, were aliens by birth, but they asserted that they became citizens by their respective marriages. Whether this was so or not, depended upon the construction given to the section of the act of 1855, above quoted.

Ellen, the widow, arrived in the United States in 1837, between the age of fourteen and fifteen, and had remained in the country ever since.

The sister, Ellen Owen, arrived in 1856, and was married to Edward Owen in 1861. He was naturalized in 1835. The sister, Margaret Kahoe, arrived in the United States in 1850, and was married to James Kahoe in 1852. He was naturalized in 1854.

The case was submitted by Messrs. Phillips and R. J. Brent, for the appellant, and by Mr. W. J. Miller, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Kelly v. Owen.


text: Talk:Kelly v. Owen.

title: Talk:Kelly v. Owen.


text:
Kelly v. Owen./Opinion of the Court

This is a suit in equity, for the sale or partition of certain real estate, situated within the District of Columbia, of which Miles Kelly was seized at the time of his death, in March, 1862. The deceased died intestate, and without issue, leaving surviving him, in the United States, a widow, Ellen, and two sisters, Ellen Owen and Margaret Kahoe. The widow claimed the entire estate, after the payment of the debts of the deceased, to the exclusion of the sisters, who claimed that they were entitled, as his heirs-at-law, to a share of the same. The court rendered a decree in favor of the widow, and the sisters appealed to the Supreme Court of the District, where the decree was reversed, the latter court holding that the sisters were entitled to a share of the estate.

The case turns upon the construction given to the second section of the act of Congress of February 10th, 1855, which declares 'that any woman, who might lawfully be naturalized under the existing laws, married, or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen.'

As we construe this act, it confers the privileges of citizenship upon women married to citizens of the United States, if they are of the class of persons for whose naturalization the previous acts of Congress provide. The terms 'married,' or 'who shall be married,' do not refer, in our judgment, to the time when the ceremony of marriage is celebrated, but to a state of marriage. They mean that, whenever a woman, who under previous acts might be naturalized, is in a state of marriage to a citizen, whether his citizenship existed at the passage of the act or subsequently, or before or after the marriage, she becomes, by that fact, a citizen also. His citizenship, whenever it exists, confers, under the act, citizenship upon her. The construction which would restrict the act to women whose husbands, at the time of marriage, are citizens, would exclude far the greater number, for whose benefit, as we think, the act was intended. Its object, in our opinion, was to allow her citizenship to follow that of her husband, without the necessity of any application for naturalization on her part; and, if this was the object, there is no reason for the restriction suggested.

The terms, 'who might lawfully be naturalized under the existing laws,' only limit the application of the law to free white women. The previous naturalization act, existing at the time, only required that the person applying for its benefits should be 'a free white person,' and not an alien enemy.

A similar construction was given to the act by the Court of Appeals of New York, in Burton v. Burton, and is the one which gives the widest extension to its provisions.

It follows, from these views, that the widow and the two sisters were citizens of the United States upon the decease of the intestate husband. The widow and Margaret Kahoe became such on the naturalization of their respective husbands, and Ellen Owen became such on her marriage. The sisters are therefore entitled to share with the widow in the estate of the deceased, and the decree of the Supreme Court of the District must be

AFFIRMED.

title: Kelly v. Owen./Opinion of the Court


text: Talk:Kelly v. Owen./Opinion of the Court


text:
Ewing v. Howard

ERROR to the Circuit Court for the Middle District of Tennessee.

A statute of Tennessee, passed in 1860, and which by its terms was to take effect from the 1st of September of that year, allowed 10 per cent. interest (instead of 6 per cent., a former rate) to be taken for money lent, provided that such agreement were expressed 'on the face of the contract,' whether evidenced by bond, bill, note, or other written instrument. The same statute, however, provided, that if any greater amount of interest than 10 per cent. was paid, or agreed to be paid, the whole amount of the interest should be forfeited by the payee. And it made the lending of money at such greater rate a misdemeanor, subject to indictment, and punishable accordingly.

The act was repealed on the 31st of January, 1861. With the exception, therefore, of the five months from the 1st of September, 1860, to 31st January, 1861, it had always been in Tennessee a misdemeanor to lend money at a greater rate of interest than 6 per cent. per annum.

In this state of the law there, Howard sued Ewing, in 1865, in the court below, upon two notes: one (the only one which was the subject of controversy here) having been dated November 15th, 1860, and by which he, Ewing, agreed to pay him, Howard, or order, $3333 33/100, 'with interest at the rate of 10 per cent. per annum, from and after the 1st day of September last past till paid.' By a memorandum in writing, dated on the same day as the note, payment was guaranteed by the father of Ewing; the guaranty speaking of the note as being for money heretofore lent by Howard to Ewing's son.

The declaration was in the ordinary form of a declaration in assumpsit. Plea the general issue, and nothing else. On the trial the notes were put in evidence without objection, and there being no other evidence in the case, verdict was given for the plaintiff. There was no request for instructions on either side.

From an entry in the record, that 'the motions for a new trial and in arrest of judgment were by this court overruled,' it was to be inferred that motions, both for a new trial and in arrest of judgment, had been made below; but neither were set forth in the record as sent here, and, accordingly, if usury or any other defence had been made in fact, in the court below, to the notes, no evidence of it appeared here.

Judgment having been given for the plaintiff, the defendant now brought the case here.

Messrs. Waterson and Crawford, for the plaintiff in error:

The note is void, being an illegal contract for usury, apparent upon its face. It expresses that it is made for value received on the day of its date, and yet calls for interest from a period two months and a half before that day, viz., from the day when the 10 per cent. law took effect; making the rate of interest in effect more than thirteen per cent. per annum. 'Every contract which is prohibited and made unlawful by statute, is a void contract, though the statute does not mention that it shall be so, but only inflicts a penalty on the offender. The penalty implies a prohibition.'

Moreover, the illegality being apparent on the face of the instrument which is the subject of the suit, it is radical and pervading, attaching to the case wherever it may be. The leading Tennessee case of Isler v. Brunson is decisive.

Mr. Caruthers, contra:

The question is, whether the note of November 15th, 1860, is illegal on its face? If not, it is not obnoxious to the objection made.

It is a well-settled rule, that the courts will avoid, if practicable by any fair intendment, that construction of a transaction which will subject a party to a contract to a penalty. If this note was for money lent on or before the 1st of September, 1860, it is legal. Now, the written guaranty of Ewing, the father, shows that it was for a previous loan. But independently of that the presumption would be that the loan was made at or before the time from which the interest was to begin to run.

But even if this were not so, yet on this writ of error the court below cannot be put in the wrong, by the making of an objection here that was not made there. If the defendants desired to make such a defence as that now set up, it should have been done then, and the judgment of the court taken upon it. That would have made a question for this court of errors to sustain or correct. This is a court to correct erroneous decisions made by the court below, on points of defence presented, and not for the origination of new defences, which the inferior court was not called upon to adjudicate.

Reply: The case of Isler v. Brunson, already cited, answers the objection that the objection is first made here, and seems to be decisive of the case presented by this record:

'If a party plaintiff bring into a court, either of law or equity, an illegal contract that it may be enforced, and this illegality is shown and set forth by himself, and not disclosed by plea or allegation from the defendant, it is the duty of either court, on ground of public policy, to repel the plaintiff and refuse its action on his behalf. Thus, if in a declaration on a security for money profert be made of the security, and upon its face it appears to have stipulated for more than legal interest, no judgment can be rendered for the plaintiff notwithstanding the act of 1835 only avoids the usurious excess.'

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Ewing v. Howard


text: Talk:Ewing v. Howard

title: Talk:Ewing v. Howard


text:
Ewing v. Howard/Opinion of the Court

Judgment in this case was for the plaintiff in the court below, and the defendants in that court sued out a writ of error and removed the cause into this court. The action was assumpsit, and the cause of action was the two promissory notes set forth in the bill of exceptions. Plea was the general issue, and the bill of exceptions shows that the plaintiff, to maintain the issue on his part, introduced in evidence the two promissory notes on which the suit was founded. They were introduced without objection, and the bill of exceptions states to the effect that there was no other evidence introduced by either party. Defendants moved for a new trial, and also in arrest of judgment, but the court overruled both motions, and the defendants excepted to the rulings of the court.

Settled rule of the court is that a motion for a new trial is addressed to the discretion of the court, and that the ruling of the court in granting or denying such a motion is not the proper subject of exceptions.

Motions in arrest of judgment present questions of law when they are so framed as to call in question the sufficiency of an indictment or of a declaration in a civil suit; but the transcript does not contain the motion, and the declaration appears to be in due form and sufficient to sustain the judgment.

Defects of form in the writ or declaration, not pointed out by demurrer, are not in general regarded in this court as good cause for reversing a judgment brought here by writ of error, as the Federal courts possess the power to permit such imperfections to be amended in their discretion and upon such terms and conditions as the rules of the court prescribe.

Neither of the objections taken to the action of the Circuit Court and embodied in the bill of exceptions are urged in this court, and being in themselves entirely untenable, they must be considered as having been abandoned. Nothing else remains to be considered in the case except what arises from the form and tenor of the notes, which are set forth at large in the bill of exceptions, but without any comment or any objection being made to the right of the plaintiff to recover.

Examined throughout, the transcript shows no objection to the right of the plaintiff to recover on the second note in the case, and as it is not suggested by the defendants that there is any defence to that note, further comment in that behalf is unnecessary. Attention of this court is invited only to the other note, and the argument is that it is illegal and void, because it secures by its very terms usurious interest. Legal interest in that State is six per cent. per annum, unless otherwise agreed between the parties, but contracts between the borrower and the lender of money may be made for a higher rate not exceeding ten per cent. per annum, as in this case, provided the agreement to that effect is expressed 'in the face of the contract,' whether evidenced by bond, bill, note, or other written instrument.

Debts created for the loan of money under an agreement to pay ten per cent., expressed as required in the statute, may be subsequently renewed for the same rate of interest, but the provision is that if any greater amount of interest than ten per cent. per annum is paid or agreed to be paid for the use of money, 'the whole amount of interest so paid, or agreed to be paid, shall be forfeited by the payee.' Provision is also made by the sixth section of the act, that any person or persons who shall violate the provisions of that law shall be subject to indictment, as in other cases of misdemeanor, and be punished as therein provided.

Principal reason now urged for the reversal of the judgment is, that the first note described in the bill of exceptions is illegal, because the makers of the same promised to pay interest on the principal at the rate of ten per cent. per annum, commencing the computation two months and a half before the date of the note. Date of the note is November 15, 1860, and the agreement, as expressed in the note, is to pay interest at the rate of ten per cent. per annum from and after the first day of September last until paid.

Argument for the defendants is that the contract is usurious, and that, inasmuch as the loaning of money at a greater rate of interest is prohibited by law, and the violation of the provision is declared to be a misdemeanor, the contract expressed in the note is illegal, and that the judgment should have been for the defendants.

Suppose it be admitted that the presumption is as contended by the defendant, that the note was given for the loan of money, and that the contract is illegal, still the presumption is not a conclusive one, as the note may have been given for the purchase of goods, chattels, or lands, and the bargain may have been made and the property actually transferred on the exact day specified in the note, as the time from which interest is to be computed.

Promissory notes, if given under those circumstances, though bearing interest anterior to their date, are neither usurious nor illegal, unless the day described in the contract from which to compute the interest is anterior to the actual date of the transaction and the transfer of the subject-matter of the purchase and sale, and it is quite clear that promissory notes in such a case, as between the original parties, are open to explanation.

Where the defendant intends to make such a defence be should plead it in the court of original jurisdiction, or raise the question in some form and present it for the decision of the court. Doubtless he may raise the question by plea, by objection to the introduction of the note in evidence, or by a prayer for instruction to the jury, but he cannot remain silent in the subordinate court and then present the objection for the first time in the court of errors, when it is too late for the plaintiff to offer any explanations, or to show what was the real nature and character of the transaction.

Nothing of the kind was done or suggested in this case by the defendants, but they pleaded the general issue, giving no notice of any such defence, and the note was introduced at the trial without objection, and there is nothing in the record to show, or tending to show, that the circuit judge ever made or was requested to make any ruling upon the subject.

Parties relying upon such an objection should raise it at the trial before the jury, when the other party would have an opportunity to offer any explanations in his power to show that the contract was legal and valid.

Bills or notes promising the payment of interest from a time anterior to their date, if the bills or notes so written are to be considered as conclusive evidence that they were given for money lent on the day of their date, would properly be regarded as usurious, but it is well known that bills and notes are often given subsequent to the transaction which constitutes their consideration and for property sold, and upon other transactions as well as for money lent. 'Usury is a defence that must be strictly proved, and the court will not presume a state of facts to sustain that defence where the instrument is consistent with correct dealing.'

Universal rule is that where an instrument will bear two constructions equally consistent with its language, one of which will render it operative and the other void, the former will be preferred.

Theory of the defendants is that the note is usurious and illegal on its face, but the authorities are clearly the other way, that the presumption is that the note was given upon a state of facts which authorized the taking of the instrument, and that the contract was lawful and valid.

Tested as matter of principle, or by the decided cases, the better opinion is that the presumption is that such a contract is valid and not usurious, and that the burden to prove the contrary is upon the party who makes the charge.

JUDGMENT AFFIRMED.

title: Ewing v. Howard/Opinion of the Court


text: Talk:Ewing v. Howard/Opinion of the Court


text:
Page:The Confidence Man.djvu/237

Rh way the judge always deemed indispensable with strangers. For you must know that Indian-hating was no monopoly of Colonel Moredock's; but a passion, in one form or other, and to a degree, greater or less, largely shared among the class to which he belonged. And Indian-hating still exists; and, no doubt, will continue to exist, so long as Indians do. Indian-hating, then, shall be my first theme, and Colonel Moredock, the Indian-hater, my next and last."

With which the stranger, settling himself in his seat, commenced—the hearer paying marked regard, slowly smoking, his glance, meanwhile, steadfastly abstracted towards the deck, but his right ear so disposed towards the speaker that each word came through as little atmospheric intervention as possible. To intensify the sense of hearing, he seemed to sink the sense of sight. No complaisance of mere speech could have been so flattering, or expressed such striking politeness as this mute eloquence of thoroughly digesting attention.

title: Page:The Confidence Man.djvu/237


text:
Ex parte McCardle (74 U.S. 506)

APPEAL from the Circuit Court for the Southern District of Mississippi.

The case was this:

The Constitution of the United States ordains as follows:

'§ 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.'

'§ 2. The judicial power shall extend to all cases in law or equity arising under this Constitution, the laws of the United States,' &c.

And in these last cases the Constitution ordains that,

'The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.'

With these constitutional provisions in existence, Congress, on the 5th February, 1867, by 'An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789,' provided that the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdiction, in addition to the authority already conferred by law, should have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States. And that, from the final decision of any judge, justice, or court inferior to the Circuit Court, appeal might be taken to the Circuit Court of the United States for the district in which the cause was heard, and from the judgment of the said Circuit Court to the Supreme Court of the United States.

This statute being in force, one McCardle, alleging unlawful restraint by military force, preferred a petition in the court below, for the writ of habeas corpus.

The writ was issued, and a return was made by the military commander, admitting the restraint, but denying that it was unlawful.

It appeared that the petitioner was not in the military service of the United States, but was held in custody by military authority for trial before a military commission, upon charges founded upon the publication of articles alleged to be incendiary and libellous, in a newspaper of which he was editor. The custody was alleged to be under the authority of certain acts of Congress.

Upon the hearing, the petitioner was remanded to the military custody; but, upon his prayer, an appeal was allowed him to this court, and upon filing the usual appealbond, for costs, he was admitted to bail upon recognizance, with sureties, conditioned for his future appearance in the Circuit Court, to abide by and perform the final judgment of this court. The appeal was taken under the above-mentioned act of February 5, 1867.

A motion to dismiss this appeal was made at the last term, and, after argument, was denied.

Subsequently, on the 2d, 3d, 4th, and 9th March, the case was argued very thoroughly and ably upon the merits, and was taken under advisement. While it was thus held, and before conference in regard to the decision proper to be made, an act was passed by Congress, returned with objections by the President, and, on the 27th March, repassed by the constitutional majority, the second section of which was as follows:

'And be it further enacted, That so much of the act approved February 5, 1867, entitled 'An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789,' as authorized an appeal from the judgment of the Circuit Court to the Supreme Court of the United States, or the exercise of any such jurisdiction by said Supreme Court, on appeals which have been, or may hereafter be taken, be, and the same is hereby repealed.'The attention of the court was directed to this statute at the last term, but counsel having expressed a desire to be heard in argument upon its effect, and the Chief Justice being detained from his place here, by his duties in the Court of Impeachment, the cause was continued under advisement. Argument was now heard upon the effect of the repealing act.

Mr. Sharkey, for the appellant:

The prisoner alleged an illegal imprisonment. The imprisonment was justified under certain acts of Congress. The question then presents a case arising under 'the laws of the United States;' and by the very words of the Constitution the judicial power of the United States extends to it. By words of the Constitution, equally plain, that judicial power is vested in one Supreme Court. This court, then, has its jurisdiction directly from the Constitution, nor from Congress. The jurisdiction being vested by the Constitution alone, Congress cannot abridge or take it away. The argument which would look to Congressional legislation as a necessity to enable this court to exercise 'the judicial power' (any and every judicial power) 'of the United States,' renders a power, expressly given by the Constitution, liable to be made of no effect by the inaction of Congress. Suppose that Congress never made any exceptions or any regulations in the matter. What, under a supposition that Congress must define when, and where, and how, the Supreme Court shall exercise it, becomes of this 'judicial power of the United States,' so expressly, by the Constitution, given to this court? It would cease to exist. But this court is coexistent and co-ordinate with Congress, and must be able to exercise the whole judicial power of the United States, though Congress passed no act on the subject. The Judiciary Act of 1789 has been frequently changed. Suppose it were repealed. Would the court lose, wholly or at all, the power to pass on every case to which the judicial power of the United States extended? This act of March 27th, 1868, does take away the whole appellate power of this court in cases of habeas corpus. Can such results be produced? We submit that they cannot, and this court, then, we further submit, may still go on and pronounce judgment on the merits, as it would have done, had not the act of 27th March been passed.

But however these general positions may be, the case may be rested on more special grounds. This case had been argued in this court, fully. Passing then from the domain of the bar, it was delivered into the sacred hands of the judges; and was in the custody of the court. For aught that was known by Congress, it was passed upon the decided by them. Then comes, on the 27th of March, this act of Congress. Its language is general, but, as was universally known, its purpose was specific. If Congress had specifically enacted 'that the Supreme Court of the United States shall never publicly give judgment in the case of McCardle, already argued, and on which we anticipate that it will soon deliver judgment, contrary to the views of the majority in Congress, of what it ought to decide,' its purpose to interfere specifically with and prevent the judgment in this very case would not have been more real or, as a fact, more universally known.

Now, can Congress thus interfere with cases on which this high tribunal has passed, or is passing, judgment? Is not legislation like this an exercise by the Congress of judicial power? Lanier v. Gallatas is much in point. There a motion was made to dismiss an appeal, because by law the return day was the 4th Monday in February, while in the case before the court the transcript had been filed before that time. On the 15th of March, and while the case was under advisement, the legislature passed an act making the 20th of March a return day for the case; and a motion was now made to reinstate the case and hear it. The court say:

'The case had been submitted to us before the passage of that act, and was beyond the legislative control. Our respect for the General Assembly and Executive forbids the inference that they intended to instruct this court what to do or not to do whilst passing on the legal rights of parties in a special case already under advisement. The utmost that we can suppose is,' &c.

In De Chastellux v. Fairchild, the legislature of Pennsylvania directed that a new trial should be granted in a case already decided. Gibson, C. J., in behalf of the court, resented the interference strongly. He said:

title: Ex parte McCardle (74 U.S. 506)


text: Talk:Ex parte McCardle (74 U.S. 506)

title: Talk:Ex parte McCardle (74 U.S. 506)


text:
Ex parte McCardle (74 U.S. 506)/Opinion of the Court

'It has become the duty of the court to temporize no longer. The power to order new trials is judicial. But the power of the legislature is not judicial.'

In The State v. Fleming, where the legislature of Tennessee directed two persons under indictment to be discharged, the Supreme Court of the State, declaring that 'the legislature has no power to interfere with the administration of justice in the courts,' treated the direction as void. In Lewis v. Webb, the Supreme Court of Maine declare that the legislature cannot dispense with any general law in favor of a particular case.

Messrs L. Trumbull and M. H. Carpenter, contra:

1. The Constitution gives to this court appellate jurisdiction in any case like the present one was, only with such exceptions and under such regulations as Congress makes.

2. It is clear, then, that this court had no jurisdiction of this proceeding-an appeal from the Circuit Court-except under the act of February 5th, 1867; and so this court held on the motion to dismiss made by us at the last term.

3. The act conferring the jurisdiction having been repealed, the jurisdiction ceased; and the court had thereafter no authority to pronounce any opinion or render any judgment in this cause. No court can do any act in any case, without jurisdiction of the subject-matter. It can make no difference at what point, in the progress of a cause, the jurisdiction ceases. After it has ceased, no judicial act can be performed. In Insurance Company v. Ritchie, the Chief Justice, delivering the opinion of the court, says:

'It is clear, that when the jurisdiction of a cause depends upon the statute, the repeal of the statute takes away the jurisdiction.'

And in that case the repealing statute, which was passed during the pendency of the cause, was held to deprive the court of all further jurisdiction. The causes which were pending in this court against States, were all dismissed by the amendment of the Constitution denying the jurisdiction; and no further proceedings were had in those causes. In Norris v. Crocker, this court affirmed and acted upon the same principle; and the exhaustive argument of the present Chief Justice, then at the bar, reported in that case, and the numerous authorities there cited, render any further argument or citation of cases unnecessary.

4. The assumption that the act of March, 1868, was aimed specially at this case, is gratuitous and unwarrantable. Certainly the language of the act embraces all cases in all time; and its effect is just as broad as its language.

The question of merits cannot now, therefore, be passed upon. The case must fall.

The CHIEF JUSTICE delivered the opinion of the court.

The first question necessarily is that of jurisdiction; for, if the act of March, 1868, takes away the jurisdiction defined by the act of February, 1867, it is useless, if not improper, to enter into any discussion of other questions.

It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Constitution. But it is conferred 'with such exceptions and under such regulations as Congress shall make.'

It is unnecessary to consider whether, if Congress had made no exceptions and no regulations, this court might not have exercised general appellate jurisdiction under rules prescribed by itself. For among the earliest acts of the first Congress, at its first session, was the act of September 24th, 1789, to establish the judicial courts of the United States. That act provided for the organization of this court, and prescribed regulations for the exercise of its jurisdiction.

The source of that jurisdiction, and the limitations of it by the Constitution and by statute, have been on several occasions subjects of consideration here. In the case of Durousseau v. The United States, particularly, the whole matter was carefully examined, and the court held, that while 'the appellate powers of this court are not given by the judicial act, but are given by the Constitution,' they are, nevertheless, 'limited and regulated by that act, and by such other acts as have been passed on the subject.' The court said, further, that the judicial act was an exercise of the power given by the Constitution to Congress 'of making exceptions to the appellate jurisdiction of the Supreme Court.' 'They have described affirmatively,' said the court, 'its jurisdiction, and this affirmative description has been understood to imply a negation of the exercise of such appellate power as is not comprehended within it.'

The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established, it was an almost necessary consequence that acts of Congress, providing for the exercise of jurisdiction, should come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to the constitutional grant of it.

The exception to appellate jurisdiction in the case before us, however, is not an inference from the affirmation of other appellate jurisdiction. It is made in terms. The provision of the act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception.

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.

What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.

Several cases were cited by the counsel for the petitioner in support of the position that jurisdiction of this case is not affected by the repealing act. But none of them, in our judgment, afford any support to it. They are all cases of the exercise of judicial power by the legislature, or of legislative interference with courts in the exercising of continuing jurisdiction.

On the other hand, the general rule, supported by the best elementary writers, is, that 'when an act of the legislature is repealed, it must be considered, except as to transactions past and closed, as if it never existed.' And the effect of repealing acts upon suits under acts repealed, has been determined by the adjudications of this court. The subject was fully considered in Norris v. Crecker, and more recently in Insurance Company v. Ritchie. In both of these cases it was held that no judgment could be rendered in a suit after the repeal of the act under which it was brought and prosecuted.

It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.

Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised.

The appeal of the petitioner in this case must be

DISMISSED FOR WANT OF JURISDICTION.


text: Talk:Ex parte McCardle (74 U.S. 506)/Opinion of the Court


text:
Moore v. Marsh

ERROR to the Circuit Court for the Western District of Pennsylvania.

The eleventh section of the Patent Act of 1836, relating to the assignment of patents, thus enacts:

'Every patent shall be assignable in law either as to the whole interest, or any undivided part thereof, by any instrument in writing, which assignment, and also every grant and conveyance of the exclusive right under any patent to make and use, and to grant to others to make and use the thing patented, within and throughout any specified part of portion of the United States, shall be recorded,' &c., &c.

And the fourteenth section, which relates to damages in suits, brought by the owners of patents, for infringement, says:

'And such damages may be recovered by action on the case, in any court of competent jurisdiction, to be brought in the name or names of the person or persons interested, whether as patentees, assignees, or as grantees of the exclusive right within and throughout a specified part of the United States.'

This statute being in force, Moore, a patentee, brought suit in the court below, against Marsh, for infringement. Marsh pleaded that after the date of the alleged infringement, he Moore, the patentee, had sold and assigned an undivided half of the patent for the district where the infringement was alleged to have been committed. To this plea, Moore demurred. The court having sustained the demurrer, and judgment being given accordingly, the case was brought here by the patentee on appeal.

The general question therefore, was, whether a sale and assignment by a patentee of his patent right is, under the fourteenth section above quoted, a bar to an action by him to recover damages for an infringement committed before such sale and transfer? In other words, whether the words of the statute 'name of the person interested,' meant, as the plea assumed, 'persons interested in the patent at the time when the suit was brought;' or meant, as the declaration assumed, interested at the time when the cause of action accrued.

The case was submitted on briefs.

Mr. S. S. Fisher, for the patentee, appellant, argued, that the latter, or interested in the damages, was the plain meaning; that it would be unreasonable and contrary to all analogies of the law, that a simple assignment of a patent-right should carry with it the right to all previous damages, carry with it all the damages which had ever accrued to its former owners in the whole course of the patent's life, and from the date of the letters patent; that back damages were not a matter inherent in, sticking to, and inseparable from the patent, but were a matter which belonged to the owner in his individual right. And this natural view, he considered, was supported by the authority of this court in Dean v. Mason.

Messrs. Henry Baldwin, Jr., and W. Bakewell, contra, argued, that the words of the fourteenth section of the statute, meant interested in the patent, and not interested in the damages; and that this was manifest—

1. By comparing this fourteenth section with the eleventh section above cited.

2. By the fact that licensees were excluded, though they were frequently the only parties interested in the damages, while the plaintiff in such cases is the party interested as patentee, assignee, or grantee of an exclusive right, and had no interest in the damages.

3. From the decisions (as the learned counsel interpreted them) of this court and of several of the circuit courts.

An opposite view, they contended, might lead to gross oppression. According to such view, a party who, in mistake as to his rights-and in these nice questions of mechanical principle, innocent mistake might well occur-may have infringed a patent during a number of years, is exposed at the end of the term to as many separate suits for infringement as there have been separate owners of the patent during the time he has been using it; and may have to defend against fifty separate actions brought by as many different plaintiffs for what has been a continuous act of user of the patented machine. Such a hardship could never be intended by Congress, and this court would not put a construction on the act fraught with such oppressive consequences. This argument, ab inconvenienti, was considered a sound one in this court (the counsel argued), in Gayler v. Wilder where Taney, C. J. pressed it in behalf of the court, by Mr. Justice Grier, in Blanckard v. Eldridge, where speaking of the eleventh section of the act, he says that 'the act of Congress has not subjected even a pirate of the machine to fifty different suits by fifty several assignees, whose several interests might be affected.'

Dean v. Mason, relied on by Mr. Fisher (the counsel argued), did not apply. It was an assignment pendente lite, the moreover of a more license.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Moore v. Marsh


text: Talk:Moore v. Marsh

title: Talk:Moore v. Marsh


text:
Moore v. Marsh/Opinion of the Court

Viewed in the light of the admitted facts, the only question in the case is whether the assignment by the plaintiff to a third person of an undivided half of the right, title, and interest secured to him by his letters patent, subsequent to the alleged infringement, but before the commencement of his suit, is a bar to his claim to recover damages for such infringement.

Letters patent were granted to the plaintiff on the 18th of April, 1848, for a certain new and useful improvement in grain drills, in which it is alleged that he is the original and first inventor of the improvement. Original patent was for the term of fourteen years, but it was subsequently extended by the Commissioner of Patents for the term of seven years from and after the expiration of the original term. Alleged defects existed in the original specification, and in consequence thereof, the plaintiff, on the 3d of February, 1863, surrendered the letters patent, and the same were reissued to him in three new patents for separate and distinct parts of the invention for the unexpired portion of the original and extended terms of the patent.

Damages are claimed of the defendants for infringing the reissued letters patent from the day of the reissue to the 24th of February, 1865, as more fully set forth in the declaration.

Pleas to the declaration were subsequently filed by the defendants, and the record shows that they gave due notice of certain special defences which they proposed to offer in evidence under the general issue, in pursuance of the act of Congress in such case made and provided. Before the day for the trial came, however, the parties filed an agreement waiving a jury and submitting the cause to the court, stipulating that the decision of the court should have the same effect as the verdict of a jury. Leave to amend was subsequently granted by the court to both parties.

Purport of the amendment to the declaration was, that the plaintiff was the sole owner of the letters patent for the county of Union, in the State of Pennsylvania, from the date of the reissued letters patent to the 24th of February, 1865, and that the defendants had infringed the same throughout that period, by making and using the invention, and vending the same to others to be used without his license or consent.

Defendants filed another special plea, in which they alleged that the plaintiff, when he commenced his suit, was not the owner of the exclusive right secured in the reissued letters patent within any part of the United States; that in certain States and districts he had parted with all his interest in the patent; and that, on the said 24th of February, he assigned and transferred an undivided half of all the residue of his right, title, and interest in the same, and, therefore, that the plaintiff had no right to bring this action in his own name against the defendants. Plaintiff demurred to the plea, and the defendants joined in demurrer. Parties were heard, and the court rendered judgment for the defendants, and the plaintiff sued out this writ of error.

Conceded fact is, that the plaintiff was the exclusive owner of the patent in the territorial district where the alleged infringement was committed, throughout the entire period of the infringement, as alleged in the declaration. Express allegation of the declaration is to that effect, and, as the plea is in avoidance and contains no denial of the matters alleged in the declaration, they must be considered as admitted, unless the matters alleged in the special plea are a sufficient answer to the action.

Briefly stated, the matter alleged in avoidance of the right of the plaintiff to maintain the suit is, that he, before he commenced the suit, but subsequent to the infringement, sold and assigned an undivided half of his patent for the territorial district where the infringement was committed, to a third person.

Patentees have secured to them, by virtue of the letters patent granted to them, the full and exclusive right and liberty, for a prescribed term, 'of making and using, and vending to others to be used,' their respective inventions or discoveries; and, whenever their rights, as thus defined, are invaded by others, they are entitled to an action on the case to recover actual damages as compensation for the injury.

Such damages may be recovered by action on the case in any Circuit Court of competent jurisdiction, to be brought in the name or names of the person or persons interested, whether as patentees, assignees, or as grantees of the exclusive right, as already defined, within and throughout a specified part of the United States.

Assignees and grantees, as well as the patentee, may, under some circumstances, maintain an action on the case for an infringement, in their own name, as appears by the express words of the act of Congress. An assignee is one who holds, by a valid assignment in writing, the whole interest of a patent, or any undivided part of such whole interest, throughout the United States.

Where the patentee has assigned his whole interest, either before or after the patent is issued, the action must be brought in the name of the assignee, because he alone was interested in the patent at the time the infringement took place; but where the assignment is of an undivided part of the patent, the action should be brought for every infringement committed subsequent to the assignment, in the joint names of the patentee and assignee, as representing the entire interest.

Settled view at one time was, that the grantee of a territorial right, for a particular district, could not bring an action on the patent in his own name; but the act of Congress having made him a party interested in the patent, it is now equally well settled that he may sue in his own name for invasion of the patent in that territorial district, as no one else is injured by any such infringement.

Both assignees and grantees have an interest in the patent, but the terms are not synonymous, as used in the patent law.

Grants, as well as assignments, must be in writing, and they must convey the exclusive right, under the patent, to make and use, and vend to others to be used, the thing patented, within and throughout some specified district or portion of the United States, and such right must be exclusive of the patentee, as well as of all others except the grantee. Suits for infringement in such districts, if committed subsequent to the grant, can only be brought in the name of the grantee, as it is clear that no one can maintain such an action until his rights have been invaded, nor until he is interested in the damages to be recovered.

Alleged infringement in this case was committed in the county of Union, in the State of Pennsylvania, and the admitted fact is, that the plaintiff, throughout the entire period of the infringement, was the sole owner of the exclusive right to make and use, and grant to others to make and use, the thing patented in that territorial district, by virtue of his original title as patentee, having never assigned or granted any right, title, or interest, within that county.

Grant that these views are correct, and it is clear that unless the plaintiff can maintain the action there can be no redress, as it is too plain for argument, that a subsequent assignee or grantee can neither maintain an action in his own name, or be joined with the patentee in maintaining it for any infringement of the exclusive right committed before he became interested in the patent. Undoubtedly the assignee thereafter stands in the place of the patentee, both as to right under the patent and future responsibility; but it is a great mistake to suppose that the assignment of a patent carries with it a transfer of the right to damages for an infringement committed before such assignment.

Comment upon the cases cited, as supporting this proposition, is unnecessary, as it is clear to a demonstration that they give it no countenance whatever. Such a proposition finds no support in any decided case, nor in the act of Congress upon the subject.

True meaning of the word interested, as employed in the last clause of the fourteenth section of the Patent Act, when properly understood and applied, is, that the right of action is given to the person or persons owning the exclusive right at the time the infringement is committed. Subsequent sale and transfer of the exclusive right are no bar to an action to recover damages for an infringement committed before such sale and transfer.

The reason for the rule is, that the assignee or grantee is not interested in the damages for any infringement committed before the sale and transfer of the patent. Correct interpretation of the words, person or persons interested, is, that the words mean the person or persons interested in the patent at the time when the infringement was committed, which is the cause of action for which the damages may be recovered.

Assignment was made in that case after suit was brought, but before the final decree. Proof of the fact was offered, and a motion filed to dismiss the case, but the court overruled the motion, because the assignees could have no interest in a suit for an infringement committed before their right accrued.

Attempt is made to distinguish the case at bar from the rule established in those cases, but, in the view of this court, without success.

JUDGMENT REVERSED. NEW VENIRE ORDERED.

title: Moore v. Marsh/Opinion of the Court


text: Talk:Moore v. Marsh/Opinion of the Court


text:
Randall v. Brigham

ERROR to the Circuit Court for the District of Massachusetts.

This action was brought by the plaintiff, who was formerly an attorney and counsellor-at-law in Massachusetts, against the defendant, who was one of the justices of the Superior Court of that State, for an alleged wrongful removal by him, of the plaintiff from the bar.

The substantial facts, as established by the evidence produced by the plaintiff, and by the records of the State court, introduced by consent, upon which the removal was made, were these:

In August, 1864, one Leighton was arrested upon a charge of larceny, and confined in jail in Boston to await the action of the grand jury in the Superior Court, upon his failure to give a recognizance with sureties in four hundred dollars, required for his appearance. While thus confined, he retained the plaintiff as his attorney, to whom he expressed a willingness to enlist in the army or navy of the United States, if the prosecution could be discontinued. The plaintiff thereupon proposed to the district attorney to dispose of the prosecution in this way. That officer declined to accede to the proposition at that time, but encouraged the plaintiff to expect that he would not object to such an arrangement in court, if the presiding judge approved of it, when the indictment was presented.

The plaintiff and his father, without any further arrangement with the district attorney, thereupon became sureties for Leighton, who, upon his release, proceeded to the office of the plaintiff, and there signed with his mark-he not being able to write-an agreement to enlist as a substitute for one Brown, of Lowell, for four hundred dollars, which sum was to be retained by the plaintiff, without any subsequent claim upon him, as indemnity for his becoming surety on the recognizance, and also to pay the plaintiff four hundred dollars for furnishing bail.

Leighton subsequently enlisted in the naval service as a substitute for Brown, who paid the plaintiff, for the enlistment, eight hundred and thirty dollars. Of this sum, the plaintiff gave Leighton, when the latter went on board the vessel to which he was assigned, the sum of ten dollars. Subsequently he paid one hundred dollars to Leighton's order. The balance he retained.

Some weeks afterwards, Leighton wrote a letter to the captain of his vessel, stating that he was promised four hundred dollars for his enlistment, by his lawyer, the plaintiff; that he had only received ten dollars; and that, when he applied to the plaintiff for settlement, evasive answers were all he obtained. He referred, in the letter, to the fact that he had a wife and two children dependent upon him for support, and he appealed to the captain to see that justice was done him. This letter was shown to the plaintiff, who replied that he had paid Leighton all he had agreed to, and should not pay him another cent. The wife of Leighton also applied to the plaintiff for a portion of the bounty of her husband, in his hands, stating that the destitution of herself and children was such that she should be obliged to give them up to the city, to whom he replied by advising her to do so, and gave her nothing.

The captain then sent the letter to the grand jury of the county, at the time sitting upon Leighton's case. The jury, of course, could not act upon the letter, and its foreman requested the prosecuting officer to bring it before the court. This was accordingly done, the defendant being at the time the presiding justice. The plaintiff was thereupon sent for, and, in open court, his attention was called to the letter, and it was notified to him that on the following Wednesday, then five days distant, his professional conduct and standing at the bar would be considered.

At the time designated, he appeared, and showed that, after his citation, he had paid to Leighton the balance of the four hundred dollars, which Leighton claimed he was entitled to receive. This right of Leighton was never admitted until after the attention of the court had been directed to the matter.

The court being of opinion that the plaintiff took advantage of the situation of Leighton, and obtained from him an agreement, which, under the circumstances, was unconscionable and extortionate, and therefore grossly unprofessional; that he had induced Leighton to enlist by making him believe that his release from the prosecution would be accomplished by his enlistment, and that the money obtained by the enlistment subsequently paid to Leighton was paid only in consequence of the inquiry instituted into the professional conduct of the plaintiff, he having previously denied that he was bound to pay anything, found that he had violated his oath of office as an attorney-at-law, and was guilty of malpractice and gross misconduct in his office, and consequently ordered that he be removed from his office as an attorney-at-law within the commonwealth of Massachusetts. Thereupon, the plaintiff brought this suit. The declaration charged the removal to have been made without lawful authority, and wantonly, arbitrarily, and oppressively.

Upon the evidence produced, the court below instructed the jury that the action could not be maintained, and that their verdict should be for the defendant. Such verdict was accordingly rendered, and the plaintiff brought the case here.

The general statutes of Massachusetts provide that 'an attorney may be removed by the Supreme Judicial Court or Superior Court, for any deceit, malpractice, or other gross misconduct;' and also that 'a person admitted in any court may practise in every other court in the State; and there shall be no distinction of counsellors and attorneys.'

The oath required of attorneys on their admission is as follows:

'You solemnly swear that you will do no falsehood, nor consent to the doing of any in court; you will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, nor give aid or consent to the same; you will delay no man for lucre or malice; but you will conduct yourself in the office of an attorney, within the courts, according to the best of your knowledge and discretion, and with all good fidelity as well to the courts as your clients. So help you God.'

The Superior Court of Massachusetts is a court of general jurisdiction. Indeed, its jurisdiction is the most general of any court in Massachusetts.

Mr. Randall, plaintiff in error, in propri a person a:

I. The plaintiff's office of attorney-at-law is property. And it has been variously declared by the courts to be a 'license,' a 'privilege,' a 'franchise,' a 'freehold,' a 'right to practise law in courts,' a 'profession which is the high road to wealth and distinction.'

The grant of the 'office of attorney,' at common law, is the grant of an office for the life, or during the good behavior, of the grantee.

In Hurst's Case, a mandamus was granted to restore an attorney to his office, because, declares Lord Holt,

'He is an officer concerning the public justice, and is compellable to be attorney for any man, and has a freehold in his place.'

In Ex parte Garland, this court says:

'An attorney and counsellor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.'

In Ex parte Austin, Gibson, C. J., delivering the opinion of the Supreme Court of Pennsylvania, thus speaks:

title: Randall v. Brigham


text: Talk:Randall v. Brigham

title: Talk:Randall v. Brigham


text:
Randall v. Brigham/Opinion of the Court

'An attorney-at-law is an officer of the court, and his office is an office for life. The grant of an office without express limitation at common law being taken most strongly against the grantor, endures for the life of the grantee; and though the principle has not been applied to offices within the grant of the executive, it must necessarily be applied to the office of attorney. For, to subject the members of the profession to removal at the pleasure of the court, would leave them too small a share of the independence necessary to the duties they are called upon to perform to their clients and to the public. As a class, they are supposed to be, and, in fact, have always been, the vindicators of individual rights, and the fearless assertors of the principles of civil liberty; existing, where alone they can exist, in a government, not of parties or men, but of laws.'

And this view of the dignity of the attorney's office is supported by all authorities.

II. The constitution of Massachusetts ordains as follows:

'No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him. And every subject shall have a right to meet the witnesses against him, face to face, and to be fully heard in his defence.'

'And no subject shall be deprived of his property, immunities, or privileges, but by the judgment of his peers, or the law of the land.'

At the common law, the words crime and offence are used as synonymous and universal terms, and as comprehending every act for which a forfeiture of any legal right might be worked, or penalty imposed, or punishment inflicted, in any form of judicial proceeding.

The words, the 'law of the land,' mean 'due process of law,' and this implies that there shall be some form of legal process, sufficient allegations or charge, due notice to the party proceeded against, the opportunity to answer to and contest the charge or allegations, and to be heard or tried in a legal and regular course of judicial proceedings, by an impartial judge. And these rights exist in all cases, civil or criminal, whether by the exercise of a court's ordinary jurisdiction, with trial by jury, or by the exercise of the discretionary or summary jurisdiction of a court, without the right to trial by jury.

III. At common law, whether a proceeding be criminal or civil, or of a mixed nature, if it has the character of a judicial proceeding, some form of legal process, adapted to the particular case, must universally be instituted or laid as the foundation of the proceeding, notice of the same given, and the opportunity presented to the party to make his defence; and to be legally and regularly tried or heard ere any judgment, or order of forfeiture, or deprivation of any freehold office, or other legal right, can lawfully be effected or inflicted, for any purpose, by any tribunal whatsoever; and if, in any essential particular, the proceeding is irregular or defective, the conviction will not be by 'due process of law,' and the judgment will be a nullity.

IV. 'Due process of law,' in the case of attorneys-at-law, is held to require, whatever may be the form of process or mode of procedure, and for whatever cause (invariably limited to causes involving moral or professional delinquency), that there shall be a sufficient charge or allegation in writing, duly filed of record in court, specifying the particular offence or matter complained of (usually supported by the oath of the party preferring the accusation); and, unless waived of record, written notice served on the attorney to show cause why he should not be removed from his office, or his name stricken from the roll of attorneys, for the offence or matter complained of; and which notice should specify the time when, the place where, and the tribunal before which he is to appear and answer. The attorney is entitled to a day in court, on which to make defence, and the trial is to be conducted like all other trials in summary proceedings at the common law, and the attorney convicted only if the proofs shall establish or conform to the allegations.

In numerous cases, the judgments or orders removing the attorneys from their offices, having been made without 'due process of law,' were declared to be illegal and void (and were also reversed), by courts having a superintending or appellate jurisdiction.

V. An action on the case may be maintained at common law for the disturbance of a party in the possession and enjoyment of an office, franchise, or other incorporeal right.

It is no objection to the maintenance of a suit simply that it involves a determination of a party's title to his office.

VI. In an action against a judge of any court, whether of record or otherwise, for any act done by him or by his command, the question in every case to be determined is, was the act done a judicial act, done within his jurisdiction? If it was not, he can claim no immunity or exemption by virtue of his office from liability as a trespasser; 'for if he has acted without jurisdiction, he has ceased to be a judge.'

Mr. Dawes, who filed a brief of Mr. Allen, A. G. of Massochusetts:

I. Both the admission and removal of attorneys are judicial acts.

II. It is a general principle, applicable to all magistrates, even to those of inferior jurisdiction, that they are not liable to an action for any judicial act done within their jurisdiction. In reference to inferior magistrates, it has been said that they are only protected while they act within their jurisdiction.

But in reference to judges of courts of general jurisdiction, the rule is not thus limited. Such judges are not liable to actions for their judicial acts, whether within or without their jurisdiction.

1. The extent of a judge's jurisdiction is often the very question which he is called on judicially to determine. To decide upon this question is as much a judicial decision as any other. And the question may be a difficult and doubtful one. Yet he is bound to decide, and to decide according to his judgment. But shall he decide in fear or peril of a lawsuit?

2. The reason applicable to inferior magistrates does not apply. There must be some point in the administration of the law where unqualified confidence is to be reposed and acknowledged; some ultimate repository of justice, so far as individuals are concerned. In England, the king's judges occupy this position; the judges of courts of general jurisdiction. To them is delegated the whole judicial power of the sovereign; and they are responsible to the sovereign alone. As long ago as 1608, in Floyd & Barker's Case, it was said:

'The reason and cause why a judge, for anything done by him as judge, by the authority which the king hath committed to him, and as sitting in the seat of the king (concerning his justice), shall not be drawn in question before ary other judge, for any surmise of corruption, except before the king himself, is for this: the king himself is de jure to deliver justice to all his subjects; and for this, that he himself cannot do it to all persons, he delegates his power to his judges, who have the custody and guard of the king's oath. And forasmuch as this concerns the honor and conscience of the king, there is great reason that the king himself shall take account of it, and no other.'

This general doctrine is especially applicable in America, where, by our National and State constitutions, judicial power is vested exclusively in the courts. The duties of a judge are public duties imposed by law. He must perform them. If he acts corruptly or incompetently, he may be impeached. And in Massachusetts, he may be removed by the governor, with consent of the council, upon the address of both houses of the legislature.

It is inconsistent with the nature and true theory of the judicial functions, that an action should lie against a superior judge, for any judicial act, even though in excess of his jurisdiction.

3. The very foundation of this principle is to protect judges when they have erred. If they have decided rightly, they need no protection, for the correctness of their decision will vindicate them. To secure the maximum of impartiality, a judge must be protected from personal responsibility for his errors, if he happens to make any. It would be absurd to say that he should receive the protection of the law only in those cases where no protection is required.

Accordingly, for more than five hundred years, by a uniform series of decisions, judges have been held exempt from personal responsibility for their judicial words and acts.

Consider the results which would follow from a contrary doctrine. Suppose that the defendant consulted several of his associates, who all concurred with him, or suppose that two or more of the justices acted together upon this matter, and that they nevertheless came to a wrong decision, would all be liable in damages? If so, should they be sued jointly or severally? In case one dissented, should he be held liable with the rest, or should he, by reason of his dissent, be exonerated, and the rest held liable? This would be to offer a bounty on dissent. Suppose the case was carried by appeal, or otherwise, before another tribunal, which ratified the doings of the first, and yet this court should think both tribunals mistaken, should the justices of the higher tribunal be also liable in damages? And if so, should they be sued separately, or jointly with the justices of the Superior Court? Are the justices of the Supreme Judicial Court of Massachusetts, who held that the doings of defendant, now sued, were, in all respects, conformable to the constitution and laws, also liable in damages? If so, before what tribunal should they be sued? If small damages were claimed, would a justice of the peace, or a judge of inferior jurisdiction, have authority to entertain the case, and pass upon the question whether his superior judges acted and decided rightly or wrongly? It cannot be that such is the law. 'There is no court,' it was said in Le Caux v. Eden, 'equal to the trial of a superior judge.' Were the law otherwise (to use the words of Lord Stair ), 'no man but a beggar or a fool would be a judge.'

This question does not depend upon reasoning alone. The case of Ackerley v. Parkinson is in point, and other cases are to the same effect.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

The Superior Court of Massachusetts is a court of general jurisdiction, and is empowered by statute to admit attorneys and counsellors to practise in the courts of the State, upon evidence of their possessing good moral character, and of having devoted a prescribed number of years to the study of the law, in the office of some attorney in the State, and to remove them 'for any deceit, malpractice, or other gross misconduct.'

Both the admission and the removal of attorneys are judicial acts. It has been so decided in repeated instances. It was declared in Ex parte Secombe, and was affirmed in Ex parte Garland.

Now, it is a general principle applicable to all judicial officers, that they are not liable to a civil action for any judicial act done within their jurisdiction. In reference to judges of limited and inferior authority, it has been held that they are protected only when they act within their jurisdiction. If this be the case with respect to them, no such limitation exists with respect to judges of superior or general authority. They are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, unless perhaps where the acts, in excess of jurisdiction, are done maliciously or corruptly. This doctrine is as old as the law, and its maintenance is essential to the impartial administration of justice. Any other doctrine would necessarily lead to the degradation of the judicial authority and the destruction of its usefulness. Unless judges, in administering justice, are uninfluenced by considerations personal to themselves, they can afford little protection to the citizen in his person or property. And uninfluenced by such considerations they cannot be, if, whenever they err in judgment as to their jurisdiction, upon the nature and extent of which they are constantly required to pass, they may be subjected to prosecution at the instance of every party imagining himself aggrieved, and be called upon in a civil action in another tribunal, and perhaps before an inferior judge, to vindicate their acts.

This exemption from civil action is for the sake of the public, and not merely for the protection of the judge. And it has been maintained by a uniform course of decisions in England for centuries, and in this country ever since its settlement.

In England the superior judges are the delegates of the king. Through them he administers justice, and to him alone are they accountable for the performance of their trust. And it was said as long ago as 1608, as reported by Lord Coke in Floyd and Barker's case, that insomuch as the judges of the realm have the administration of justice, under the king, to all his subjects, they ought not to be called in question for any judicial proceedings by them, except before the king himself, 'for this would tend to the scandal and subversion of all justice; and those who are most sincere would not be free from continual calumniations.' In the United States, judicial power is vested exclusively in the courts. The judges administer justice therein for the people, and are responsible to the people alone for the manner in which they perform their duties. If faithless, if corrupt, if dishonest, if partial, if oppressive or arbitrary, they may be called to account by impeachment, and removed from office. In some States, and Massachusetts is one of them, they may be removed upon the address of both houses of the legislature. But responsible they are not to private parties in civil actions for their judicial acts, however injurious may be those acts, and however much they may deserve condemnation, unless perhaps where the acts are palpably in excess of the jurisdiction of the judges, and are done maliciously or corruptly.

In Taaffe v. Downes, this subject was most elaborately and learnedly considered, and all the English authorities commented upon, by the Court of Common Pleas of Ireland, in 1813. The defendant was chief justice of the King's Bench in Ireland, and had issued a warrant at chambers for the arrest of the plaintiff for a breach of the peace. The plaintiff was accordingly arrested and held to bail; and he afterwards brought an action against the chief justice for assault and false imprisonment. It was urged, in argument, that it was not lawful or defensible for a judge, without any offence committed, or charge made upon oath of crime, or suspicion of crime committed, to imprison a subject. But it was held that the action would not lie against the judge for acts judicially done by him. 'Liability,' said Mr. Justice Mayne, one of the justices of the court, 'to every man's action, for every judicial act a judge is called upon to do, is the degradation of the judge, and cannot be the object of any true patriot or honest subject. It is to render the judges slaves in every court that holds plea, to every sheriff, juror, attorney, and plaintiff. If you once break down the barrier of their dignity, and subject them to an action, you let in upon the judicial authority a wide, wasting, and harassing persecution, and establish its weakness in a degrading responsibility.' And the justice observed that no action of the kind was ever sustained, and save one in London and one in Ireland, none was ever attempted. The one mentioned as arising in Ireland was not against any judges, but against the governor of the country, and may perhaps be subject to other considerations. In the case in London, the action was against the recorder, who, as one of the judges of oyer and terminer, had fined and imprisoned a petit jury for rendering a verdict against the direction of the court and the evidence. This act was declared illegal, by the Court of Common Pleas, in discussing the case on habeas corpus. Upon that decision the action was brought by one of the jurors, but the court held that the action would not lie, and were of opinion 'that the bringing of the action was a greater offence than the fining of the plaintiff, and committing of him for non-payment; and that it was a bold attempt, both against the government and justice in general.'

Mr. Justice Fox, in the case of Taaffe v. Downes, conceded that the act of the chief justice was illegal, but held that he was not responsible in the action, and observed that, without the existence of the principle, that a judge, administering justice, shall not be liable for acts judicially done, by action or prosecution, it was utterly impossible that there should be such a dispensation of justice as would have the effect of protecting the lives or property of the subject. 'There is something,' he said, 'so monstrous in the contrary doctrine, that it would poison the very source of justice, and introduce a system of servility, utterly inconsistent with the constitutional independence of the judges, an independence which it has been the work of ages to establish, and would be utterly inconsistent with the preservation of the rights and liberties of the subject.'

The same subject was considered very elaborately in the case of Yates v. Lansing, in the Supreme Court and in the Court of Errors of New York. Lansing was chancellor of the State, and had committed Yates, one of the officers in chancery, for malpractice and contempt. A judge of the Supreme Court discharged him, and thereupon the chancellor ordered him to be recommitted. He then brought an action to recover a statute penalty for the recommittent. It was held that the action would not lie, Mr. Chief Justice Kent observing that the chancellor may have erred in judgment in calling an act a contempt which did not amount to one, and in regarding a discharge as null when it was binding, and that the Supreme Court may have erred in the same way, but still it was but an error of judgment for which neither the chancellor nor the judges were or could be responsible in a civil action, and that such responsibility would be an anomaly in jurisprudence. 'Whenever,' said the learned chief justice, 'we subject the established courts of the land to the degradation of private prosecution, we subdue their independence and destroy their authority. Instead of being venerable before the public they become contemptible.'

The Superior Court of Massachusetts, as we have already stated, is a court of general jurisdiction, and is clothed by statute with authority to admit and to remove attorneys-at-law. The order removing the plaintiff was made by the court, and not by the judge in chambers. The inquiry into his conduct was before the court, and before it he was notified to appear. His claim is that the court never acquired jurisdiction to act in his case, because there was not a formal accusation made against him, or statement of grounds of complaint, and formal citation issued to him to answer them. If this were so, his case would not be advanced. Under the authorities cited he could not seek redress in that event by an action against the judge of the court, there being no pretence or shadow of ground that he acted maliciously or corruptly. But the claim of the plaintiff is not correct. The information imparted by the letter was sufficient to put in motion the authority of the court, and the notice to the plaintiff was sufficient to bring him before it to explain the transaction to which the letter referred. The informality of the notice, or of the complaint by the letter, did not touch the question of jurisdiction. The plaintiff understood from them the nature of the charge against him; and it is not pretended that the investigation which followed was not conducted with entire fairness. He was afforded ample opportunity to explain the transaction and vindicate his conduct. He introduced testimony upon the matter, and was sworn himself.

It is not necessary that proceedings against attorneys for malpractice, or any unprofessional conduct, should be founded upon formal allegations against them. Such proceedings are often instituted upon information developed in the progress of a cause; or from what the court learns of the conduct of the attorney from its own observation. Sometimes they are moved by third parties upon affidavit; and sometimes they are taken by the court upon its own motion. All that is requisite to their validity is that, when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence. The manner in which the proceeding shall be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation.

The authority of the court over its attorneys and counsellors is of the highest importance. They constitute a profession essential to society. Their aid is required not merely to represent suitors before the courts, but in the more difficult transactions of private life. The highest interests are placed in their hands, and confided to their management. The confidence which they receive and the responsibilities which they are obliged to assume demand not only ability of a high order, but the strictest integrity. The authority which the courts hold over them, and the qualifications required for their admission, are intended to secure those qualities.

The position that the plaintiff has been illegally deprived of rights which he held under the constitution of Massachusetts, which declares that 'no subject shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally, described to him;' nor be 'despoiled or deprived of his property, immunities or privileges, put out of the protection of the law, exiled or deprived of his life, liberty or estate, but by the judgment of his peers, or the law of the land,' is answered by the construction which the Supreme Court of that State has given to these provisions. It has held that the proceeding taken for the removal of the plaintiff could not in any just and proper sense be deemed a criminal procedure, in which a party has a right to a full, formal, and substantial description of the offence charged; and that it was not essential to the validity of the order of removal that it should be founded on legal process according to the signification of the words per legem terrae as used in Magna Charta, or in the Declaration of Rights. This construction of the highest court of the State, not called in question by any conflicting decision of that court, is conclusive upon us.

We find no error in the ruling of the Circuit Court, and its judgment must therefore be

AFFIRMED.

title: Randall v. Brigham/Opinion of the Court


text: Talk:Randall v. Brigham/Opinion of the Court


text:
Palmer v. Donner

THIS was a motion, made by Mr. J. H. Bradley, to dismiss a writ of error directed to the Supreme Court of the State of California, on the ground that the citation had been signed by a district judge, which the record showed was the fact.

The CHIEF JUSTICE delivered the opinion of the court.

title: Palmer v. Donner


text: Talk:Palmer v. Donner

title: Talk:Palmer v. Donner


text:
Palmer v. Donner/Opinion of the Court

The revisory jurisdiction of this court over the judgments of State tribunals, is defined by the twenty-fifth section of the Judiciary Act of 1789. It is there provided that the citation must be signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States. But the citation in the case before us, was signed by a district judge. This was without authority of law, and the citation was, therefore, without effect. The case therefore is not properly in this court, and the writ of error must be

DISMISSED.

title: Palmer v. Donner/Opinion of the Court


text: Talk:Palmer v. Donner/Opinion of the Court