text: Talk:The Fossat or Quicksilver Mine Case/Opinion of the Court

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text:
Lowber v. Bangs

BANGS & SON being owners of the ship Mary Bangs, then at sea, on her passage from New York to Melbourne, chartered her at Boston, on the 4th June, 1858, to Lowber, who was there, for a voyage from Calcutta to Philadelphia, &c. The charter-party contained the following clauses:

'Ship to proceed from Melbourne to Calcutta with all possible despatch. It is understood that the 'Mary Bangs' is now on her passage from New York to Melbourne (sailed 3d day May last); that the owners will use the most direct means to forward instructions to the master, with copy of this charter, ordering it to be fulfilled; but should it so happen that the ship should arrive at Melbourne before these instructions, and the master should have engaged his ship before receiving them, this charter will be void.'

No provision, it will be observed, was made for the case of the vessel's having left Melbourne unengaged, or, indeed, for anything but for her arriving at Melbourne, and her engagement before receiving the instructions promised by Bangs & Son, to be sent. The vessel reached Melbourne on the 7th of August; she discharged her cargo, and was ready to sail on the 7th of September. She waited for the mail until the 16th of that month. It was due there on the 5th of September, but by an accident did not arrive until the 14th of October. The voyage from Melbourne to Calcutta, at that time of the year, usually consumed from forty-five to sixty-days. Had the vessel proceeded to Calcutta direct, she ought to have reached there before the middle of November. She went, however, to Manilla, much out of the direct course from Melbourne to Calcutta, and arrived there on the 16th of November. She left Manilla on the 24th of January, and arrived at Calcutta on the 26th of February, more than three months after the time at which she ought to have arrived, if she had gone there directly from Melbourne. The owners addressed to the master five letters, of different dates, advising him of the charter-party, and directed them to Melbourne. The charterers, on the 23d of June, despatched an agent to Calcutta, who arrived there on the 25th of August. As soon as he learned that the vessel had not come direct from Melbourne, he declined loading her under the charter-party. Freights, it may be added, had largely fallen between the date when the charter-party was made, and that of the vessel's arrival at Calcutta; and, also, that after the arrival of the Mary Bangs, and after she was ready and had offered to receive a cargo, the charterers engaged another vessel, of about the same tonnage, to take her place, and loaded her with a cargo purchased after the arrival of the Mary Bangs, with funds provided for her. The case thus showed that the object of the voyage had not been frustrated.

On error from the Massachusetts Circuit, where the case had come before the court as a case stated, the question presented for the determination of this court was, whether the fact that the ship proceeded from Melbourne to Manilla and thence to Calcutta, instead of going to Calcutta from Melbourne directly, gave the charterers a right to avoid the charter-party; in other words, whether the clause, 'ship to proceed from Melbourne to Calcutta with all possible despatch,' did or did not make a condition precedent; whether, in short, it constituted a warranty, or merely a representation? The court below considered that it was not a condition precedent, but an independent stipulation, which gave the charterers a claim for damages on failure of performance by the owners, but did not give them the right to avoid the contract; the object of the voyage not having been wholly frustrated. Judgment was given below accordingly.

Mr. Curtis, for the owners.

1. The meaning of the clause is, that the owners would have the vessel at Calcutta 'seasonably.' She was so there, as is proved by the charterers having got another vessel after the arrival and loaded her. The voyage was not frustrated, nor was even inconvenience felt. The charterers threw up their charter only because freights had greatly fallen, and it was for their interest to do so. The argument which gives to the expression in question its severest meaning is unreasonable. If the master, after receiving his instructions at Melbourne, had stopped unnecessarily for but an hour, had gone to see a friend, had sailed by any but the shortest possible line, had not kept under the utmost press of sail, the charter would be void. The ship would not have proceeded from Melbourne to Calcutta with 'all possible despatch.' The argument makes the obligation to sail dependent, not on the receipt of the instructions, but on her actual ability, at the moment, to sail. Who, on this construction of the instrument, could settle whether the contract had or had not been complied with? It might be confidently affirmed, that on this interpretation of such words no contract containing them ever had been, or ever would be, fulfilled. The more strict you make the construction, the more difficult you make it to be practically settled. You are also drawing within its scope things of no real effect. Can it be supposed that reasonable men, making a contract reaching over half the globe, and having before their eyes the contingencies which were certain to occur in distant seas and ports, could have thus contracted? Why give to a practical instrument a construction so impracticable?

2. It has been decided, in a large number of English cases, that such clauses as 'ship to proceed with all convenient speed,' or 'in a reasonable time,' and similar clauses, are not, in charter-parties, conditions precedent, but are merely independent stipulations; and unless the alleged breach goes to the whole root and consideration, it only gives a claim for damages. In Tarrabochia v. Hickie, the charter contained a provision, that the vessel should 'sail with all convenient speed.' The jury found, in an action for refusing to load, that the vessel did not sail with all convenient speed; but the court held that this was no excuse for a refusal to load, because it did not appear that the object of the voyage was wholly frustrated by the breach of the stipulation. In Dimech v. Corlett, the vessel was described as now at anchor in the port of Malta; and it was agreed that 'she, being tight, stanch, and strong, and properly manned, and every way fitted for the voyage, should, with all convenient speed, proceed in ballast to Alexandria, in Egypt.' The ship was not then finished, and did not get ready to sail for more than a month. Held, that the failure to sail 'with all convenient speed' was no answer to an action for a refusal to load, because the charterer had not shown that the object of the charter-party was frustrated by the delay; it not being 'shown that the charterer had taken up any other vessel or declined any cargoes, or in any way altered his position, in consequence of the delay.' In Clipsham v. Vertue, it was held, on demurrer, that a failure to perform a stipulation in a charter-party, to sail 'within a reasonable time,' was no answer to an action for not loading; it not being alleged that the purpose of the voyage was frustrated. In Freeman v. Taylor, the charter contained a stipulation to proceed from the Cape of Good Hope to Bombay 'with all convenient speed.' The master wilfully deviated, and went to Mauritius, and caused a delay of six weeks. The court directed the jury to find whether the deviation deprived the defendant of the benefit of the contract.

In some cases, it has been held in England that a stipulation in a charter to sail on or before a day certain was a condition precedent; and such stipulations were distinguished from those containing the words, 'all convenient speed,' 'within a reasonable time,' and 'with all possible despatch.' Such was Baron Pollock's idea in Tarrabochia v. Hickie; but there appears to be no decision in which a clause similar to that in this case has been held to be a condition.

Mr. S. Bartlett, contra.

1. The contract is explicit and clear. 'Ship to proceed from Melbourne,'-not from Manilla, or any other port in the Eastern seas, where she might at any time be found. 'With all possible despatch;' that is to say, direct from Melbourne to Calcutta. Do these words leave a doubt that both parties contemplated that the contract should apply only to a vessel at Melbourne? How could the owners have been willing to bind themselves and their ship by a contract which should take effect after she left Melbourne, wheresoever notice reached the master, without making some provision in that contract for a probable or possible state of things which might involve them in severe loss? How could the charterers have been willing, without making some limitation of time, to bind themselves to keep an agent and funds at Calcutta, ready to load a ship under a contract to take effect when notice should reach the master, it may be, in distant seas, and pending or after intermediate voyages?

2. How stands the case on authority? In Graves v. Legg, the plaintiffs contracted to import and sell the defendant wools, to be laid down in certain ports of England. The contract recited that it was 'to be deliverable at Odessa during August next, to be shipped with all despatch, the names of the vessels to be declared as soon as the wools were shipped.' The breach relied on in defence, as a condition precedent, was that the plaintiff did not notify to the defendant the name of the vessel in which the wool was shipped as soon as it was shipped. The defendant threw up the contract. In the argument and judgment the effect of the clause 'to be shipped with all despatch,' as a condition precedent, and forming part of the same clause, was discussed, and the requisition to give notice of the names of the vessels, held to be a condition,-on the ground, among other things, that the terms 'to be shipped with all despatch,' in the same clause, clearly constituted a condition precedent. Thus Parke, B., asks, 'Could the plaintiff contend that the shipping the wools with all despatch is not a condition precedent?' and the counsel for the plaintiff substantially admitted that it was. In its judgment, the court say the giving notice of the names of the ships 'was a condition precedent, quite as much, indeed, as the shipping of the goods at Odessa, with all despatch, after the end of August.'

Cases have been cited on the other side, where charter-parties have provided that the ship should sail with 'all convenient speed,' and in which the provision has been held not to be a condition precedent, entitling the charterer to repudiate the contract. The reason is that stated in some of those cases, viz., that 'what is a convenient speed or reasonable time, must always be a subject of contention. Where terms are so lax and ambiguous as to lead to a difference of opinion, then the stipulation is not a condition precedent.' In the present case, the words 'all possible despatch,' are not equivalent to 'reasonable time,' and leave no ambiguity as to the intention of the parties, as is shown by the above case of Graves v. Legg.

The other side relies apparently on the supposed doctrine, that whether a stipulation in a charter-party constitutes a condition precedent or not, may be determined by proof that its violation had or had not the effect to frustrate the voyage, and that, as in this case, the charterers do not show that the voyage was frustrated, they are to be charged. It is not to be denied that some of the cases cited by Mr. Curtis assert the principle as stated. But the conflict in the cases, and the obvious unsoundness of the doctrine, has led to its revision in the Exchequer Chamber, in Behn v. Burness. That case will be found to review the preceding cases, and to establish the following propositions:

1st. That whether a descriptive statement in a written instrument is a mere representation, and so 'not an integral part of the contract' (unless fraudulently made), or whether it is a substantive part of the contract, is a question of construction by the court.

2d. That the previous cases turn upon very nice distinctions, but that the true doctrine, as established by principle as well as authority, is, that, 'generally speaking, if such descriptive statement was intended to be a substantive part of a contract, it is to be regarded as a condition, on failure or non-performance of which the other party may, if he is so minded, repudiate the contract in toto, provided it has not been partially executed in his favor.'

3d. That if a party voluntarily receives the benefit of a partial execution, 'he cannot afterwards treat the descriptive statement as a condition, but only as an agreement, for breach of which he may bring an action to recover damages.'

4th. That the doctrine of some of the cases relied on by the defendant in error, that a descriptive statement of this kind 'may be regarded as a mere representation, if the object of the charter-party be still practicable, but may be construed as a warranty, if that object turns out to be frustrated,' is unsound, 'because the instrument, it should seem, ought to be construed with reference to the intention of the parties at the time it was made, irrespective of events which may afterwards occur.'

Mr. Bartlett referred also to Glaholm v. Hays, 8 Fielden, 9 reading from and relying upon them.

Reply: The case of Behn v. Burness, in the Exchequer Chamber, does not apply. There the words, 'now in the port of Amsterdam,' in a charter-party, were held to be a condition. The court, however, did not question the decisions in Tarrabochia v. Hickie, Dimech v. Corlett, and Clipsham v. Vertue, or question any other cases in which it was held that a stipulation that a vessel will sail with all convenient speed, or within a reasonable time, is only an agreement, and not a condition. The court held only that there was a distinction between 'stipulations that some future thing shall be done, or shall happen,' and 'statements in a contract, descriptive of the subject-matter of it, or of some material incident thereof.' The decision was based upon the ground that the statement that the vessel 'was now in the port of Amsterdam,' was of a definite fact at the date of the contract, and was not a stipulation as to the future. In the charter-party of the Mary Bangs, the clause 'ship to proceed from Melbourne to Calcutta with all possible despatch,' is merely a stipulation that a future thing should be done, and cannot, according to any of the principles stated in the opinion in Behn v. Burness, in the Exchequer Chamber, amount of a condition.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Lowber v. Bangs


text: Talk:Lowber v. Bangs

title: Talk:Lowber v. Bangs


text:
Lowber v. Bangs/Opinion of the Court

The question is, whether it was a condition precedent, that the ship should proceed directly from Melbourne to Calcutta; or, in other words, whether these clauses constitute a warranty, or are merely a representation.

'The construction to be put upon contracts of this sort depends upon the intention of the parties, to be gathered from the language of the individual instrument. Whether particular stipulations are to be considered conditions precedent, or not, must, in all cases, solely depend upon that intention, as it is gathered from the instrument itself.' 'All mercantile contracts ought to be construed according to their plain meaning, to men of sense and understanding, and not according to forced and refined constructions, which are intelligible only to lawyers, and scarcely to them.' 'The rule has been established, by a long series of adjudications in modern times, that the question whether covenants are to be held dependent or independent of each other, is to be determined by the intention and meaning of the parties, as it appears on the instrument, and by the application of common sense, to each particular case, and to which intention, when once discovered, all technical forms of expression must give way; and one of the means of discovering such intention has been laid down with great accuracy by Lord Ellenborough, in the case of Ritchie v. Atkinson, to be this: that when mutual covenants go to the whole consideration, on both sides, they are mutual conditions, the one precedent to the other; but where the covenants go only to a part, then a remedy lies in the covenant to recover damages for the breach of it, but it is not a condition precedent.'

Rules have been elaborately laid down, and discussed in many cases, for determining the legal character of covenants, and their relations to each other; but all the leading authorities concur in sustaining these propositions.

Contracts, where their meaning is not clear, are to be construed in the light of the circumstances surrounding the parties when they were made, and the practical interpretation which they, by their conduct, have given to the provisions in controversy.

This charter-party bears date of the 4th day of June, 1858. The vessel was then on her way to Melbourne. The agreed facts warrant the conclusion, that the owner believed confidently that she would reach Melbourne in advance of the mail, which would carry to her master advice of the charter-party. It was also probable that she might engage her freight before the master could receive the advice. On the other hand, it was improbable that she would have discharged her cargo and have left Melbourne before the mail arrived. Hence, no provision was made by the owners for any other contingency than that she should have become engaged. In that event, they were not to be bound; and the charterers required it to be stipulated, simply, that if not engaged, she should proceed with all possible despatch from Melbourne to Calcutta.

Promptitude in the fulfilment of engagements is the life of commercial success. The state of the market at home and abroad, the solvency of houses, the rates of exchange and of freight, and various other circumstances which go to control the issues of profit or loss, render it more important in the enterprises of the trader than in any other business. The result of a voyage may depend upon the day the vessel arrives at her port of destination, and the time of her arrival may be controlled by the day of her departure from the port whence she sailed. We cannot forget these considerations in our search for the meaning of this contract. That the parties could have intended that when the vessel left Melbourne she might wander in any direction over the Indian seas, and that whenever and wherever she should receive intelligence of the contract, she might proceed to Calcutta and claim its fulfilment by the charterers, strikes us as incredible. So to hold, we think, would be to make a new contract for the parties, and not to execute the one they have made. We cannot give any other construction to the language, 'the ship to proceed from Melbourne to Calcutta with all possible despatch,' than that she was to proceed direct from one place to the other, and that to this extent, at least, time was intended to be made of the essence of the contract. We lay out of view the state of things at Calcutta when the vessel arrived there. To allow that to control our conclusion, would be to make the construction of the contract depend, not upon the intention of the parties when it was entered into, but upon the accidents of the future.

We will now advert to the authorities to which our attention has been directed. Tarrabochia v. Hickie, Dimech v. Corlett, Clipsham v. Vertue, and Freeman v. Taylor, are in point for the defendants in error, and seem to sustain the views of their counsel. In these cases it was held, that unless the delay was so great as to frustrate the object of the charterers in making the contract, it was not material to the rights of the parties. In two of them the delay was produced by the deviation of the vessel from the direct course to the port where she was to receive her lading.

The authorities relied upon in behalf of the plaintiffs in error are equally cogent. In Glaholm v. Hays, the language of the charter-party was, 'the vessel to sail from England on or before the 4th day of February next.' This was held to be a condition precedent. Chief Justice Tindal said this language imported the same thing as if it had been 'conditioned to sail,' or 'warranted to sail on or before such a day.' In Oliver v. Fielden et al., the contract, as set out in the declaration, was that 'the ship called the Lydia,. . . then on the stocks at Quebec, to be launched and ready to receive cargo in all the month of May, 1848, and guaranteed by the owners to sail in all June, A. D. 1848,' &c., should be loaded by the factors of the charterers, &c. It was held that the readiness to receive a cargo in all May was a warranty, and that in an action for not loading the vessel, a plea stating that the ship was not ready to receive a cargo 'in all May,' was good on general demurrer. Pollock, Chief Baron, said, 'The stipulation as to the vessel being ready to receive a cargo in May is not mere description, but part of the contract, and forms a condition precedent to the plaintiff's right to recover.' Crookewit v. Fletcher presented the same point, and was ruled in the same way. In Ollive v. Booker, the vessel was described as 'now at sea, having sailed three weeks ago, or thereabouts.' It was held, that the time at which the vessel sailed was material, and that the statement in the charter-party amounted to a warranty.

The most recent and most important authority brought to our notice is Behn v. Burness. It was agreed by the charter-party, in that case, that the ship then 'in the port of Amsterdam. . . should, with all possible despatch, proceed to Newport, in Monmouthshire,' and there take in cargo. At the date of the contract the ship was not at Amsterdam, but at another place sixty-two miles distant from there. Being detained by contrary winds, she did not reach Amsterdam until the 23d of October. She discharged her cargo as speedily as possible, and proceeded direct to Newport, where she arrived on the 1st of December. The defendant refused to load her. The plaintiff sued for damages, and the defendant pleaded that the ship was not at Amsterdam at the time of the making of the contract. The Queen's Bench ruled in favor of the plaintiff, and he recovered. The defendant took the case, by a writ of error, to the Court of Exchequer, and that court reversed the judgment of the Queen's Bench. The opinion of the reversing court is characterized by force and clearness, and the leading authorities on the subject are examined. The court say: 'We feel a difficulty in acceding to the suggestion that appears to have been, to some extent, sanctioned by high authority (see Dimech v. Corlett), that a statement of this king in a charter-party, which may be regarded as a mere representation, if the object of the charter-party be still practicable, may be construed as a warranty, if that object turns out to be frustrated, because the instrument, it should seem, ought to be construed with reference to the intention of the parties at the time it was made, irrespective of the events which may afterwards occur.' Referring to Freeman v. Taylor, Tarrabochia v. Hickie, and Dimech v. Corlett, they say: 'But the court did not, we apprehend, intend to say that the frustration of the voyage would convert a stipulation into a condition, if it were not originally intended to be one.' They evidently felt embarrassed by the prior adjudications, which take a different view of the subject, and an effort is made to reconcile them with the decision they were about to pronounce. Here we have no such embarrassment, and we think we shall settle wisely the important principles of commercial law involved in this controversy by following the case of Behn v. Burness.

Upon reason, principle, and authority, we are of opinion that the stipulation before us is a condition precedent, and not a mere representation, nor an independent covenant, and that it goes to the entire root of the contract.

JUDGMENT REVERSED, and the cause remanded for further proceedings, in conformity to this opinion.

title: Lowber v. Bangs/Opinion of the Court


text: Talk:Lowber v. Bangs/Opinion of the Court


text:
Ex parte Fleming

THE La Crosse and Milwaukie Railroad Company, a railroad company of Wisconsin, had mortgaged its road and other property to secure certain negotiable bonds which it had issued. The bonds not being paid, a bill of foreclosure was filed in the District Court of the United States for the Wisconsin district, the only Federal court then in that State, and which court had at that time Circuit Court powers. The railroad, &c., was sold by the marshal, who reported his sale to the District Court. The sale was confirmed by that court and the purchaser placed in possession.

About the time, however, when this report and confirmation was made, Congress passed certain acts establishing a Circuit Court for the Wisconsin district, transferring to the new tribunal, with certain reservations and limitations, the powers which had previously been exercised by the District Court. The extent, however, of the reservations and limitations above referred to was a matter not absolutely above question. However, this court, in a case decided at the last term, in reference to a part of the same suit now brought forward, had adjudged that the reservations and limitations were not of as extensive operation as was then contended by counsel that they were, and that certain orders made by the District Court in this same proceeding were void; the right to make them having passed by the acts of Congress to the new tribunal.

In this state of enactments and decision on them, one Fleming, conceiving that the right to confirm or set aside the sale above mentioned, had also passed to the Circuit Court, petitioned that court for an order on the marshal to report to it the sale which had been made by that officer under the decree of the District Court.

He set forth in his petition that he was the equitable owner of certain of the bonds (describing them by number), to secure which the company had made its mortgage; which bonds he showed that he had bought of one H. G. Weed.

It appeared, however, by documents which he annexed to his petition and referred to, that when the La Crosse and Milwaukie Railroad was about to be sold under the decree of foreclosure, a number of its creditors formed themselves into a consociation, with a view of buying it in, and of reorganizing the road with a new name, that of the Milwaukie and St. Paul Railway. These creditors, acting for themselves and all who should become 'assentents,' and making in writing a scheme of reorganization, to which other creditors might assent,-appointed certain persons, Seymour and others, to act as agents and trustees in the whole matter of all persons who chose to deliver their bonds to them for use in the contemplated purchase. This scheme of reorganization made Seymour and the others agents of all the 'assentents,' giving them power 'to do any and all things which they deem for the benefit of the holders as fully as they might do if personally present;' and authorizidng them 'in relation to all matters, exigencies and things not herein specifically provided for to exercise a liberal discretion, except to oblige us personally for the payment of money.'

Weed was an 'assentent,' and deposited his bonds, getting in return a certificate of interest in the embryo Milwaukie and St. Paul Railway Company. The La Crosse and Milwaukie was sold under the decree of foreclosure. The agents, &c., purchased it, and it was now reorganized as the St. Paul and Minnesota Railway Company; the managers of that company being put, on confirmation of the sale, into possession of the road. All this, as it was to be collected from Fleming's petition and the documents annexed to it, was prior to his purchase of the bonds from Weed. In fact, the date of his purchase, as stated by him (September 26, 1863), was after the marshal's sale and the confirmation by the District Court.

Being dissatisfied with the sale as made by the marshal and confirmed by the District Court, Fleming petitioned the Circuit Court for the order as already mentioned. That court refused the order.

Mr. Carpenter, counsel of Fleming, now moved this court for a mandamus to the judges of the Circuit Court, commanding them to make such a rule on the marshal as had been prayed for and refused. The application to this court set forth that the marshal had sold, or pretended to sell, property belonging to another road, and not decreed to be sold, and that the District Court had pretended to confirm the same; but alleged that the District Court had no jurisdiction over the cause for any purpose whatever, the cause having been transferred to the Circuit Court; that the pretended confirmation of the sale was void; that the sale remained, therefore, in law unconfirmed; and that no steps could be taken to complete the foreclosure of the mortgage and protect the rights of the petitioner as a holder of bonds secured by the mortgage, except by having said sale reported, as it ought to be, to the Circuit Court.

Mr. Cowdrey, as amicus curiae, submitted a brief, suggesting that no proper interest was shown in Fleming to have what he asked for even if he had merits in fact; and arguing that, for various reasons which he set forth, no merits could exist; a matter, however, this last one, which the court, disposing of the case in limine, did not touch.

Mr. Justice MILLER delivered its opinion.

title: Ex parte Fleming


text: Talk:Ex parte Fleming

title: Talk:Ex parte Fleming


text:
Ex parte Fleming/Opinion of the Court

The petitioner does not show that he has such an interest in the matter as would justify the court to permit him to interfere. He describes himself as equitable owner of certain bonds made by the La Crosse and Milwaukie Railroad Company. These bonds were secured by a mortgage; and it was in a suit brought to foreclose that mortgage that the sale was had of which he complains. The owner of these bonds, while the foreclosure proceedings were in progress, was Weed, who had deposited them with the agents of a company, which proposed to use them in buying the said road, at the sale under the decree of foreclosure. These agents were invested by Weed with an absolute and full power to use the bonds in any manner, so that no money was required of Weed towards the purchase. The sale was made, and the road purchased as proposed. These bonds were used in the purchase. The sale was confirmed by the District Court and the purchasers placed in possession. Long after all this was done, as the petitioner alleges, by purchase from Weed he became the equitable owner of the bonds. Who was the legal owner, and what were the relative rights of the equitable and legal owners, or how any one could be the owner when the bond had been cancelled or absorbed in paying for the road, we are not informed.

We deem it sufficient to say that the petitioner, who had no interest in the matter at the time of the sale and confirmation, shows no right now to disturb what the parties who were interested have acquiesced in.

MOTION OVERRULED. #fn-s-s

title: Ex parte Fleming/Opinion of the Court


text: Talk:Ex parte Fleming/Opinion of the Court


text: Page:Cournot Theory of Wealth (1838).djvu/6


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Lovejoy v. Murray

LOVEJOY brought suit in one of the courts of Iowa against O. H. Pratt, and the sheriff attached certain personal property, which was assumed to be the property of Pratt. A certain Murray, however, claimed it as his. The sheriff, now in possession, was unwilling to proceed further in the attachment, or to sell the property under it, unless indemnified by Lovejoy & Co. These parties accordingly executed a bond, in which, reciting that the sheriff had attached and taken possession of the property, they bound themselves to pay all damages, &c. The sheriff then proceeded to sell the property under Lovejoy & Co.'s attachment, and under direction of their attorneys.

This being done, Murray sued the sheriff for an alleged trespass. The sheriff gave notice of this suit, as soon as brought, to Lovejoy & Co., and they defendant it; counsel, whom they paid, having taken exclusive charge of it. In this suit, Murray obtained

Judgment against the sheriff for $6233

Which the sheriff, without execution issued, satisfied to the extent of 830

Leaving a balance unsatisfied of $5403

Murray then brought suit against Lovejoy & Co. for this same trespass; and the facts being agreed on in a case stated, the court gave judgment for the plaintiffs for the amount of the judgment against the sheriff less the $830 paid by him.

On error here from the Massachusetts Circuit (where Lovejoy & Co. had been sued), three questions were made.

1. Did Lovejoy & Co., in giving the bond of indemnity to the sheriff, become thereby liable as joint trespassers with him in what was done under the attachment?

2. Did Murray, by suing the sheriff alone, and getting partial satisfaction of the judgment against that officer, bar himself of a right to sue Lovejoy & Co. for the same trespass?

3. Was Murray's judgment against the sheriff conclusive against Lovejoy & Co. in this suit against them?

The case was thoroughly argued on both sides, in this court, on the authorities, ancient and modern, English and our own.

Mr. Hutchins, for Lovejoy & Co., plaintiffs in error.

On the first point, the effect of the bond of indemnity. One may indemnify an officer for an act committed by him, without being himself liable for that act. He may defend a suit against a trespasser without becoming himself a trespasser. 'It is sometimes said,' remarked Chief Justice Gibson, of Pennsylvania, 'that in levying an execution the sheriff is the plaintiff's agent. Having received a sufficient bond of indemnity, or a tender of it, he is certainly bound to follow his instructions; but the relation between them is not that of master and servant; for the sheriff is bound to act, not by force of the plaintiff's command, but by force of the command of his writ. He is the agent of the law; and, therefore, it is that when he seizes by the plaintiff's direction the goods of a stranger on a ficri facias against the goods of a defendant, the parties do not stant in the relation of joint trespassers. The plaintiff creditor is not a trespasser at all; for the sheriff is bound to stand the brunt of the stranger's action. He acts at his peril, but not without a means of security; and it is his fault if he does not use it.'

On the second and principal point; how far the judgment against the sheriff operated as a bar to the suit against Lovejoy & Co.

There seems to be a great conflict of opinion in the books, whether a judgment alone against one tort-feasor operates as a bar to a suit against another; some holding it to be an absolute bar, others that judgment with execution is necessary, and others that satisfaction is necessary.

In numerous cases which may be referred to in this country, it has been either decided, declared, or assumed, as we read the cases, that judgment alone operates as a bar. This is the direction certainly in which these cases set. Other cases would indicate that judgment and execution so operate; and in one case it has been held that absolute satisfaction was necessary.

It is impossible to reconcile the American cases. The English courts keep clear of the whole difficulty by treating the judgment, of itself, as a bar; and this we submit is the better doctrine.

The leading English case is Brown v. Wootton, temp. James I, reported by three different reporters, Yelverton, Croke, and Moore, all essentially in one way. Sir Henry Yelverton gives the case thus:

'In trover of certain goods in particular, the defendant pleaded that the plaintiff had brought the like action against J. S. for the same goods before this action brought, in which suit he so far prosequtus est against J. S. that he had judgment and execution against J. S., and averred that the goods contained in both actions were the same goods. Upon which the plaintiff demurred, and it was adjudged against the plaintiff.'

This is much in point, and the case was decided in the best days of the old English law; Popham being Chief Justice; Fenner, Gawdy, Sir. C. Yelverton, and Williams, eminent names in judicial history, his associates. Mr. Theron Metcalf (now Mr. Justice Metcalf, of the Supreme Court of Massachusetts), commenting on it, A.D. 1820, in his excellent edition of Yelverton, says: 'No case has been found in which the precise point adjudged in the taxt, viz., that in the action of trover a former recovery against one of two or more joint tort-feasors for the same conversion and a writ of execution sued out is a bar, has been otherwise decided.'

In King v. Hoare, A.D. 1844, the Court of Exchequer decided that a judgment, without satisfaction, recovered against one of two joint debtors, is a bar to an action against the other; though secus where the debt is joint and several. The court, Baron Parke giving its judgment, refers to Brown v. Wootton, just cited, and declare that 'a joint contract cannot be distinguished from a joint tort;' thus assuming Brown v. Wootton to have been rightly decided, and in effect affirming it.

Buckland v. Johnson, decided ten years later in the Common Pleas of England, is to the same result. In that case it appeared that a father and son had wrongfully converted the goods of the plaintiff by selling them; that the proceeds of the sale, 150, were received by the son alone; and that the plaintiff had sued the father, and recovered a verdict for  100 as the value of the goods so converted; but that in consequence of his insolvency he had obtained no satisfaction. He now sued the son. But Jervis, C.J., says: 'If two jointly convert goods, and one of them receives the proceeds, you cannot, after a recovery against one in trover, have an action against the other for the same conversion, or an action for money had and received to recover the value of the goods for which a judgment has already passed in the former action. . . . The fallacy of the plaintiff's argument arises from his losing sight of the fact, that by the judgment in the action of trover the property of the goods was changed, by relation, from the time of the conversion, and that consequently the goods from that moment became the goods of the son;' and his lordship quotes with approbation the language of Baron Parke in the case last cited: 'The judgment of a court of record changes the nature of that cause of action, and prevents it being the subject of another suit; and the cause of action, being single, cannot afterwards be divided into two.'

But if the court shall be of the opinion that a party may sue and recover separate judgments against co-trespassers, and then elect which judgment he will enforce, then we say that the recovery of judgment against the sheriff, and the receipt of partial satisfaction on that judgment from him before the commencement of this suit, will operate as a bar to this suit. How can the court proceed now to try the original trespass when it has been partially settled for? How would a declaration be framed? How would the court proceed at the trial? What becomes of the $800 paid? Must it not be credited in some way, or deducted? and if so, how? The plaintiff is seeking to recover full damage for a wrong partially redressed.

In the Vermont case of Sanderson v. Caldwell, which is opposed to our general view, the judgment first recovered was in no part satisfied.

On the third point, the effect of the judgment against the sheriff; is it conclusive?

Lovejoy & Co., we think, are not estopped to defend this suit because they gave the sheriff a bond of indemnity, or because they took part in the defence of the suit against him. If this were a suit by sheriff against Lovejoy & Co. upon their bond of indemnity to him against that suit, and upon notice or otherwise they had defended the suit against him, then perhaps as between them and the officer they would have been concluded by the judgment against him. But that is not the question here. The defendants were neither parties nor privies to the judgment against the sheriff.

Mr. Ball, contra:

On the first question: All persons who direct or request another to commit a trespass are liable as co-trespassers, and giving a bond of indemnity in such case makes the party a trespasser. The proposition is well-established elementary law, and need not be unfolded or enforced. Upon the facts the court will readily apply what we conceive to be both true and applicable.

On the second and principal question: It is a settled principle that all torts are several as well as joint, and that the injured party can maintain an action against all the tort-feasors jointly or against each one separately. Hence such party must have the right to pursue each tort-feasor to judgment and execution till he gets satisfaction. That satisfaction is the essential matter appears even in cases contemporary with Brown v. Wootton, reported in Yelverton, and which seems to be the foundation of the recent decisions in England, and is one of the citations of the opposite counsel. In Cocke v. Jenner, reported by Lord Hobart, the court in speaking of joint trespassers says:

'If they be sued in several actions, though the plaintiff make choice of the best damage, yet when he hath taken one satisfaction he can take no more; and if he require two an audita querela will lie.'

The same idea is presented in Corbett v. Barnes, which arose soon after and is reported in Sir William Jones. The report is in Norman French, but translated, reads in the material parts, thus:

'Barnes brought trespass of assault and battery, in London, against Hill in the Common Bench and recovered; and afterwards trespass of assault and battery against Corbett in the King's Bench, and two others for the assault and battery in Hertfordshire. Hill was taken in judgment, and afterwards judgment given against the three others in the King's Bench. Hill paid the damages recovered against him, and satisfaction was entered. Then Corbett was taken in execution, when he and the other two brought an audita querela, setting forth the whole matter, with an averment that the said assault and battery in London and Hertford was the same assault. And by Justices Jones, Croke, and Barkeley, the audita querela lies; for although for the same assault the plaintiff may have several actions and recover, yet when a recovery is had against one, and satisfaction, he cannot have another satisfaction; just as where an obligation is made jointly and severally, and the obligee sues in the Common Bench one by several writ, and recovers, and afterwards sues another in the King's Bench upon the same obligation, nevertheless if one of them makes satisfaction, the other shall have an audita querela to avoid the execution; for the plaintiff cannot have nisi unica satisfactio. So here the plaintiff can have several recoveries, but if one satisfy, the other shall have audita querela to set aside the execution against him.'Many American cases decide or declare this explicitly.

So in the recent English case of Cooper v. Shepherd, the former judgment had been paid, although that fact is by mistake omitted in the marginal note. The court say, 'The plaintiff, after he has once received the full value, is not entitled to further compensation in respect to the same loss, and according to the doctrine of cases cited in the argument, by a former recovery in trover and payment of the damages, the plaintiff's right of property is barred, and the property vested in the defendant in that action. See Adams v. Broughton (2 Strange, 1078), and Jenkins, 4th Century, Case 88, p. 189, where it is laid down in trespass against B. for taking a horse, A. recovers damages by this recovery and execution done thereon, the property in the horse is vested in B., solutio pretii emptionis loco habetur.'

On the third question. It is submitted that the judgment against the sheriff is conclusive upon Lovejoy & Co. The sheriff was their agent. They directed the attachment and sale; they gave the bond of indemnity; they defended the suit against him, and were the real defendants in it; they paid the attorneys and counsel, and had the exclusive control of the defence. Privies, as well as parties, are concluded by a judgment. Lovejoy & Co. cannot, therefore, again contest the case on its original merits.

Mr. Justice MILLER delivered the opinion of the court:

title: Lovejoy v. Murray


text: Talk:Lovejoy v. Murray

title: Talk:Lovejoy v. Murray


text:
Lovejoy v. Murray/Opinion of the Court

The record before us raises three questions, all of which depend upon the principles of the common law exclusively for their solution.

We will consider them in the order in which they naturally arose on the trial, and in which also they have been argued.

1. Did the defendants, in giving a bond of indemnity to the sheriff, thereby become liable as joint trespassers with him in the proceedings under the attachment?

The question arises upon the hypothesis that a writ of attachment was issued in favor of the present defendants against one O. H. Pratt, which was wrongfully levied by the sheriff on property of the present plaintiff. The bond of indemnity given by the present defendants recites upon its face that the sheriff has already levied the attachment; and there is nothing in the case, except the bond, to show that in making the levy, or in anything done by the sheriff prior to the giving of the bond, he acted under the direction or instruction of the defendants, or at their request. That the attaching creditor is not answerable for the act of the officer, unless he in some manner interferes so as to make himself liable, must be conceded. And unless the defendants have so interfered in this case as to incur this responsibility the action cannot be sustained.

It is contended by counsel that a trespass cannot be ratified like a contract so as to make the party liable ab initio. But it is not necessary to decide, in this case, whether the defendants by giving the bond became liable for what had been done previous to that time. It is sufficient, if they become liable for what was done by the sheriff after they gave the instrument. The trespass complained of was a continuing trespass, and consisted of a series of proceedings, ending in the sale of the plaintiff's property under execution. At the time the bond was given, the sheriff had merely taken possession of the goods under the attachment. No great injury had, probably, been done. The demand for indemnity, and the giving of it by the defendants, proceeded upon the supposition that the sheriff would without it go no further in that direction, but would give up the property to the claimant, the present plaintiff, and make his peace on the best terms he could. By the present statute of Iowa he had a right to do this, if the plaintiff in attachment refused to assume the hazard of indemnifying him. And if there were no such statute, he had a right to deliver the property to the claimant, and risk a suit by the plaintiff in attachment, rather than a contest with a rightful claimant of the goods.

The giving of the bond by the present defendants must, therefore, be held equivalent to a personal interference in the course of the proceeding, by directing or requesting the sheriff to hold the goods as if they were the property of the defendants in attachment. In doing this they assumed the direction and control of the sheriff's future action, so far as it might constitute a trespass, and they became to that extent the principals, and he their agent in the transaction. This made them responsible for the continuance of the wrongful possession, and for the sale and conversion of the goods; in other words, for all the real damages which plaintiff sustained.

The first question must, therefore, be answered in the affirmative.

2. ''Did the plaintiff, by suing Hayden, the sheriff, alone, recovering judgment for about six thousand dollars, and receiving from him eight hundred and thirty dollars on the said judgment, thereby preclude himself from maintaining this suit against these defendants for the same trespass? Is the judgment, or the judgment and part payment, in that case a bar to this action?''

Parke, Baron, in the case of King v. Hoare, speaking in reference to the same proposition in its application to actions on joint contracts, says, in 1846, that it is remarkable that the question should never have been decided in England. It is equally remarkable that the proposition here presented should be an open question at this day.

The faithful and exhausting research of counsel, in this case, shows that there are conflicting authorities, not only on the main proposition, but on several incidental and collateral points closely connected with it. Two propositions, however, seem to be conceded by all the authorities, which bear with more or less force on the main question, and which may as well be stated here.

1. That persons engaged in committing the same trespass are joint and several trespassers, and not joint trespassers exclusively. Like persons liable on a joint and several contract, they may be all sued in one action; or one may be sued alone, and cannot plead the nonjoinder of the others in abatement; and so far is the doctrine of several liability carried, that the defendants, where more than one are sued in the same action, may sever in their pleas, and the jury may find several verdicts, and on several verdicts of guilty may assess different sums as damages.

2. That no matter how many judgments may be obtained for the same trespass, or what the varying amounts of those judgments, the acceptance of satisfaction of any one of them by the plaintiff is a satisfaction of all the others, except the costs, and is a bar to any other action for the same cause.

In the latest English case upon the principal question, namely, Buckland v. Johnson, Jervis, C. J., holds the former judgment against the son, although fruitless, to be a bar to the second suit against the father for the same goods, upon the ground that by the former judgment the property in the goods was vested in the defendant in that action. As this is the latest case in the English courts which expressly decides the point, it may, perhaps, be received as the English doctrine. But this concession must be made with some hesitation in view of opinions expressed in other cases decided in the same country. In the very case in which that judgment is rendered, the chief justice takes occasion to correct what he supposes to be an erroneous statement of Tindal, C. J., in Cooper v. Shepherd, to the effect, 'that, according to the doctrine of the cases which were cited in argument by a former recovery in trover and payment of damages, the plaintiff's right of property vests in the defendant in that action.'

It was, therefore, the opinion of C. J. Tindal, that payment of the damages recovered is essential to vest the property in defendant, and this only a few years before the case of John son v. Buckland was decided. That case was decided in 1854, and mainly on the authority of Brown v. Wootton, reported in Yelverton, as also by Croke, J. The reason for the decision, as given by Popham, C. J., is thus stated in the latter book: 'In the cause of action being against divers, for which damages uncertain are recoverable, and the plaintiff having judgment against one person for damages certain, that which was uncertain before, is reduced in rem judicatam, and to certainty, which takes away the action against others.' If the only object, or indeed the principal object, in obtaining a judgment in trespass, was to render certain the extent of plaintiff's injuries, or the amount of damages which would compensate for those injuries, we might be able to comprehend the force of this logic. But as it is the purpose of the law, and the main purpose for which courts of justice are instituted, to procure satisfaction for these injuries, we do not see the sequence in the reasoning of the learned judge.

Brown v. Wootton was decided in Trinity Term, 3 James I. Prior to that time, the law had been thought to be the other way. In Claxton v. Swift, Shower said, 'it was never pretended, until the case of Brown v. Wootton, that a bare judgment should be a bar.'

In Cocke v. Jenner, reported by Hobart, and which was in Trinity Term, 12 James I (only nine years after Brown v. Wootton), the question arose on a release of one joint trespasser, which was held to be a bar to a suit against the other, on the ground that it was equivalent to satisfaction; yet the language of the report leaves a strong impression that it was the opinion of the court that several judgments might be had, and that only satisfaction, or its equivalent, would bar proceedings against all who were liable. And the case of Corbett v. Barnes, cited from Sir W. Jones (time of Charles the First), which was on audita querela, while it holds that only one satisfaction can be had, implies clearly that several judgments may be rendered against joint trespassers. Indeed, that very case was where one judgment had been rendered in the King's Bench against one, and in the Common Pleas against three others, for the same trespass.

These cases show that, after as well as before the case of Brown v. Wootton, the law was supposed, by some of the ablest judges in England, to be otherwise than what it decides; and we know of no case in which it was followed in England as implicit authority, until Buckland v. Johnson, in 1854.

The rule in that case has been defended on two grounds, and on one or both of these it must be sustained, if at all. The first of these is, that the uncertain claim for damages before judgment has, by the principle of transit in rem judicatum, become merged into a judgment which is of a higher nature. This principle, however, can only be applicable to parties to the judgment; for as to the other parties who may be liable, it is not true that plaintiff has acquired a security of any higher nature than he had before. Nor has he, as to them, been in anywise benefited or advanced towards procuring satisfaction for his damages, by such judgment.

This is now generally admitted to be the true rule on this subject, in cases of persons jointly and severally liable on contracts; and no reason is perceived why joint trespassers should be placed in a better condition. As remarked by Lord Ellenborough, in Drake v. Mitchell, 'A judgment recovered in any form of action, is still but a security for the original cause of action, until it be made productive in satisfaction to the party; and, therefore, till then, it cannot operate to change any other collateral concurrent remedy which the party may have.'

The second ground on which the rule is defended is, that by the judgment against one joint trespasser, the title of the property concerned is vested in the defendant in that action, and therefore no suit can afterwards be maintained by the former owner for the value of that property, or for any injury done to it.

This principle can have no application to trespassers against the person, nor to injuries to property, real or personal, unaccompanied by conversion or change of possession. Nor is the principle admitted in regard to conversions of personal property. Prior to Brown v. Wootton, the English doctrine seems to have been the other way, as shown by Kent, in his Commentaries, referring to Shepherd's Touchstone, and Jenkins.

We have thus far confined ourselves to the examination of the English authorities, and the principles discussed in them, and we are forced to the conclusion that even at this day the doctrine there is neither well settled nor placed on any satisfactory ground.

In turning our attention to the American cases, we have been able to find but two in which the point directly in issue has been ruled in favor of the bar of the former judgment; although there are some other cases which hold that the right of property is transferred by the judgment. The first of these two cases is Wilkes v. Jackson. This was an early case in the Court of Appeals of Virginia, which seems to have passed without much consideration, and was mainly rested on the judgment of the same court in a former case, which does not appear to sustain it.

The other is the Rhode Island case of Hunt v. Bates. It is a very recent case, decided in 1862; but the absence of any other reasoning than a mere recapitulation of the English cases, and the remark that upon their authority the court is obliged to rest its decision, deprives it of any other weight than what should be attached to those cases. This we have already considered.

In addition to this, it has been decided in South Carolina and Pennsylvania, that the recovery of a judgment for the value of the goods converted, transfers the title to the defendant. Rogers v. Moore; Floyd v. Brown.

On the other hand, in the case of Livingston v. Bishop, in the Supreme Court of New York, in 1806, Kent, C. J., overrules Brown v. Wootton, and holds that judgment alone is not a bar.

In Sheldon v. Kibbe, decided in 1819, in the Supreme Court of Connecticut, the court, by Hosmer, C. J., enters into an elaborate examination of the authorities, and a full consideration of the question on principle, and lays down the doctrine that neither a judgment, nor the taking of the body of the defendant in execution, will bar a second action against a co-trespasser. Nothing short of satisfaction or release can have that effect.

In Sanderson v. Caldwell, in the Supreme Court of Vermont, in 1826, it is held that neither judgment, nor issuing execution, nor anything short of satisfaction, is a bar to a second suit brought against another joint trespasser.

Osterhout v. Roberts, a year later, in the Supreme Court of New York, was a plea that defendant's son had been sued, had a judgment rendered against him, and had been taken in execution and imprisoned sixty days for the same trespass. Yet the plea was held bad. The trespass was for taking a watch.

In Elliott v. Forter, Robertson, C. J., of the Court of Appeals of Kentucky, examines the whole subject fully, both on principle and athority, and holds that the first judgment is no bar, and that the title to the property does not pass by judgment in trespass or trover. This case is affirmed by the same court, in Sharp v. Gray.

Blann v. Cochern, in Alabama, was an action of trespass. The defendant pleaded a former recovery against a co-trespasser, and payment of the judgment and costs so recovered, to the clerk of the court. But the plea was held bad, because it was not averred that it was accepted by the plaintiff.

In Knott v. Cunningham, the Supreme Court of Tennessee held that a former judgment against one tort-feasor, was no bar to a suit against another, for the same tort, without satisfaction.

In Page v. Freeman, the Supreme Court of Missouri held the same doctrine.

In Floyd v. Browne, Gibson, C. J., of Pennsylvania, while holding that after a judgment in trover against two trespassers without satisfaction, plaintiff cannot bring assumpsit against another trespasser, uses this language: 'A plaintiff is not compelled to elect between actions that are consistent with cash other. Separate actions against a number who are severally liable for the same thing, or against the same defendant on distinct securities for the same debt or duty, are concurrent remedies. Trespass is, in its nature, joint and several, and in separate actions against joint respassers, being consistent with each other, nothing but satisfaction by one will discharge the rest.' Trover and assumpsit, however, he holds to be inconsistent remedies.

If we turn from this examination of adjudged cases, which largely preponderate in favor of the doctrine that a judgment, without satisfaction, is no bar, to look at the question in the light of reason, that doctrine commends itself to us still more strongly. The whole theory of the opposite view is based upon technical, artificial, and unsatisfactory reasoning.

We have already stated the only two principles upon which it rests. We apprehend that no sound jurist would attempt, at this day, to defend it solely on the ground of transit in rem judicatum. For while this principle, as that other rule, that no man shall be twice vexed for the same cause of action, may well be applied in the case of a second suit against the same trespasser, we do not perceive its force when applied to a suit brought for the first time against another trespasser in the same matter.

In reference to the doctrine that the judgment alone vests the title of the property converted, in the defendant, we have seen that it is not sustained by the weight of authorities in this country. It is equally incapable of being maintained on principle.

The property which was mine, has been taken from me by fraud or violence. In order to procure redress, I must sue the wrong-doer in a court of law. But, instead of getting justice or remedy, I am told that by the very act of obtaining a judgment-a decision that I am entitled to the relief I ask-the property, which before was mine, has become that of the man who did me the wrong. In other words, the law, without having given me satisfaction for my wrong, takes from me that which was mine, and gives it to the wrong-doer. It is sufficient to state the proposition to show its injustice.

It is said that the judgment represents the price of the property, and as plaintiff has the judgment, the defendant should have the property. But if the judgment does represent the price of the goods, does it follow that the defendant shall have the property before he has paid that price? The payment of the price and the transfer of the property are, in the ordinary contract of sale, concurrent acts.

But in all such cases, what has the defendant in such second suit done to discharge himself from the obligation which the law imposes upon him, to make compensation? His liability must remain, in morals and on principle, until he does this. The judgment against his co-trespasser does not affect him so as to release him on any equitable consideration. It may be said that neither does the satisfaction by his co-trespasser, or a release to his co-trespasser do this; and that is true. But when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience, that the law will not permit him to recover again for the same damages. But it is not easy to see how he is so affected, until he has received full satisfaction, or that which the law must consider as such.

We are, therefore, of opinion that nothing short of satisfaction, or its equivalent, can make good a plea of former judgment in trespass, offered as a bar in an action against another joint trespasser, who was not party to the first judgment.

The second question must, therefore, be answered in the negative.

3. Is the judgment of plaintiff, against the sheriff, Hayden, conclusive against the defendants in this action?

The facts on which this proposition is based, are the giving of the bond of indemnity by the defendants, and that Hayden, when sued, notified them of the suit, and called on them to defend it; that they did employ counsel to defend it, and that the counsel so employed had exclusive control of the defence of the suit.

The legal facts necessary to enable plaintiff to recover in the present suit are, first, his title to the goods which had been converted; second, the value of those goods; and, third, the participation of the defendants in the conversion. The latter point, we have already seen, is established by the indemnifying bond to the sheriff. Does the record of the judgment against Hayden conclusively establish the other two points, under the circumstances just stated?

We are of opinion that it does.

We have already shown that the effect of giving the bond was to make defendants principals in the transaction, and that so far as the action of the sheriff after that was a trespass, it was directed by them, and was for their benefit. With a just appreciation of their relations to each other in the transaction, he called on them, when sued, to assume the defence; and they did so. They were defending their own acts, although the suit was in the sheriff's name. They had full right to make all defence there, which they could make here. They could adduce witnesses, and cross-examine those of plaintiff, and could have taken an appeal. The case is wanting in none of the elements so happily stated by Mr. Greenleaf, as rendering a former judgment conclusive in a second suit. 'Justice requires,' he says, 'that every cause be once fairly and impartially tried; but the public tranquillity demands that, having been once so tried, all litigation of that question, and between the same parties, should be closed forever. It is also a most obvious principle of justice, that no man ought to be bound by proceedings to which he is a stranger; but the converse of this rule is equally true, that by proceedings to which he was not a stranger, he may well be bound. Under the term parties, in this connection, the law includes all who are directly interested in the subject-matter, and had a right to make defence, or to control the proceedings; and to appeal from the judgment. This right involves, also, the right to adduce testimony, and to cross-examine the witnesses adduced on the other side. Persons not having these rights are strangers to the cause. But to give full effect to the principle by which parties are held bound by a judgment, all persons who are represented by the parties, and claim under them, or in privity with them, are equally concluded by the same proceedings.' 'The ground, therefore, upon which persons standing in this relation to the litigating party are bound by the proceedings to which he was a party is, that they are identified with him in interest; and wherever this identity is found to exist, all are alike concluded.' The authorities cited by the learned author fully sustain these propositions.

The present case comes within them, and must be governed by them. In addition, various cases have been examined, which affirm the conclusiveness of former judgments, under circumstances which we are unable to distinguish, in principle, from the one before us, and in several instances the analogy in the facts is perfect. They are presented in the note below.

This last question must, therefore, be answered in the affirmative.

As the rulings of the Circuit Court were in accordance with the principles here decided, the judgment of that court must be

AFFIRMED, WITH COSTS.

title: Lovejoy v. Murray/Opinion of the Court


text: Talk:Lovejoy v. Murray/Opinion of the Court


text: The Plymouth

title: The Plymouth


text: Talk:The Plymouth

title: Talk:The Plymouth