text:
Carite v. Trotot/Opinion of the Court

This is a bill in equity filed by F elicit e Trotot, the appellee, to foreclose a mortgage and for the sale of the mortgaged property, consisting principally of a sugar plantstion with its improvements, in Louisiana. The property originally belonged to Jean Baptiste Clement, a citizen of France, who, and also his agent and attorney in fact, Antoine C. Tremoulet, by whom he was represented in the transactions in question, are parties to the suit, and appellants, with Celestine Carite and her children. Clement, through Tremoulet, sold the property Sept. 22, 1869, to the firm of Copponex & Co., composed of Copponex, Moulor, and Carite, the husband of Celestine, for $55,000, of which $10,000 was paid in cash, $6,764 was an incumbrance in favor of the Citizens' Bank of Louisiana, assumed by the purchasers, and the remainder, evidenced by their four promissory notes for $9,559 each, payable respectively Sept. 1, 1870, 1871, 1872, and 1873, with interest at eight per cent per annum, amounting to $38,236, was secured by mortgage upon the premises.

On Jan. 11, 1871, Copponex sold his interest in the firm business and this property to his partners for $10,000 cash, they assuming the debts of the partnership; and on Dec. 30, 1872, Moulor sold his interest to Carite for $55,000, in addition to the assumption by the latter of the incumbrance in favor of the Citizens' Bank, amounting then to $5,573, and three unpaid notes of $9,559 each, with interest, still due to Tremoulet as agent for Clement. For the purchase-money, agreed to be paid to Moulor, Carite gave eleven promissory notes of $5,000 each,-three payable in one year from date, two in two years, two in three years, two in four years, and two in five years,-secured by mortgage upon the plantation.

The appellee claims to be the holder and owner of five of these notes, the first three and the second two, bearing interest at the rate eight per cent per annum, and to have the right, they being overdue and unpaid, to foreclose the mortgage given by Carite to Moulor, and sell the mortgaged premises for the payment of the amount due thereon. She also insists that her mortgage securing the debt is the first and best lien upon the premises, except what may still appear to be due to the Citizens' Bank.

As the grounds of this priority, the bill alleges that on Feb. 10, 1873, Casimir Carite, conspiring with his wife, Celestine Carite, and Tremoulet, induced the latter to institute, in the Circuit Court of the United States for the District of Louisiana, proceedings, by executory process, in the name of Clement, upon the mortgage and notes given by Copponex & Co., for the seizure and sale of the premises, and caused them to be sold to Tremoulet for a price less than the amount due to the Citizens' Bank, and the amount claimed to be due to Clement, and the title was conveyed to him accordingly; that the proceedings and sale were simulated and fraudulent, the possession of Casimir Carite not being disturbed thereby, and the object being to defraud the appellee and his other creditors; and that, in point of fact, the debt originally due from Copponex & Co. to Clement, secured by the mortgage to the latter, was, at the date of said proceedings and sale, paid and extinguished; that, in further prosecution of the same conspiracy and fraud, Casimir Carite induced and caused his wife, on Feb. 13,1 873, to file a petition in the Parish Court of St. James, in Louisiana, representing that she was married to him April 23, 1863, and that there existed between them a community of acquests and gains, which allegations, it is admitted, were true, but further setting forth that he had become hopelessly involved in debt, which, it is alleged, was false, and prayed for a judgment of separation of property from him; that a pretended defence was made by him to the petition, on which judgment was rendered in her favor, separating her in property from him, and dissolving the community of acquests and gains theretofore existing between them; that this proceeding was fraudulent and void, because it was voluntary and by consent, because the wife had no claim against him and alleged none, and assigned no reason in law why such separation should be decreed, because there was no derangement of his affairs, and no allegation that his wife could conduct the business of the plantation better than he, the latter in point of fact having conducted the same after the decree, as before; and because said judgment was never published as required by law, nor ever executed in any manner by the issue of any writ; that, in further pursuance of said conspiracy and fraud, Tremoulet, on May 22, 1873, pretending to act as his agent, made to Celestine Carite a pretended sale of the said plantation and property for a sum sufficient to cover the amount alleged to be due to Clement, although that debt, or a large part of it, had previously been satisfied and extinguished.

The prayer of the bill is that the proceedings under which Tremoulet purchased the premises for Clement, the decree of separation of property from her husband on behalf of Mrs. Carite, and the sale and conveyance to her of the plantation by Clement, be adjudged to be void and be set aside, and that the complainant's mortgage and debt be charged as the first lien on the same, and be satisfied by a sale thereof for that purpose.

The final decree of the Circuit Court is substantially in accordance with the prayer of the bill, declaring that the sale to Tremoulet for Clement, and by him to Celestine Carite, be set aside and annulled as simulated and illegal; that the judgment of separation of property between her and her husband is null and void for want of publication; that the plantation and property be recognized as belonging to the community formerly subsisting between Carite and his wife, as it did before said simulated sales were made; and that the complainant had established the mortgage under which she claims, as a valid and subsisting lien upon the property to secure the sum of $25,000, with interest at the rate of eight per cent per annum from Dec. 30, 1872, for which, if not paid within sixty days, it was ordered that the premises be sold.

The object of this appeal is to review that decree.

The first question it presents relates to the validity and effect of the judicial proceedings taken by Tremoulet, which resulted in the sale of the property to Clement.

Against its validity it is asserted in the bill that the debt to Clement, at the time of the sale, had been extinguished, and that the proceeding, therefore, was a mere pretext and cover for an intended fraud. But the evidence leaves no doubt that this was an unfounded suspicion. It is abundantly established by the proof that, at the time of the sale, there was still due on account of the debt to the Citizens' Bank, assumed by Carite, $5,573, and that two of the notes for $9,559 each, on one of which interest had been running from Jan. 15, 1873, and on the other from its date, Sept. 1, 1869, were overdue and unpaid; and that another note of the same series, and of the same amount, falling due Sept. 1, 1873, was held by Tremoulet for Clement, the whole amounting to $34,395.40.

The proceeding itself, though summary, was familiar in practice in such cases, and strictly according to the law of Louisiana, and if not voidable on other grounds, had the effect to vest in Clement an absolute til e to the property, free of all subsequent incumbrances. It was executory process which is authorized (Code of Practice, art. 732) 'when the creditor's right arises from an act importing a confession of judgment, and which contains a privilege or mortgage in his favor;' which is the case (art. 733) 'when it is passed before a notary public, or other officer fulfilling the same functions, in the presence of two witnesses, and the debtor has declared or acknowledged the debt for which he gives the privilege or mortgage.' By art. 3360, Civil Code, it is declared 'that the debtor cannot sell, engage, or mortgage the same property to other persons, to the prejudice of the mortgage which is already acquired to another creditor;' so that the seizure and sale, by virtue of executory process under a mortgage, are not affected by the existence of subsequent mortgages, the owners of which are not made parties to the proceeding. The security of the latter, in that event, is transferred to the proceeds of the sale, and their protection consists in the requirement that no sale shall take place for less than two-thirds of the value of the mortgaged property, as appraised for that purpose. This effect is expressly declared by Code of Practice, arts. 707, 708. Hart v. Foley, 1 Rob. (La.) 378. It follows, therefore, that unless the judicial sale to Clement is a nullity, the mortgage lien of the appellee is itself extinct, though the mortgage debt will survive as a personal obligation.

It is contended, however, by the appellee, that this sale to Clement was void, as a fraud upon her rights as a creditor of Carite, because taken in connection with the subsequent sale to Mrs. Carite, it was intended to defeat the claims of the creditors of her husband, and to place this property beyond their reach.

The circumstances attending the transaction are these: Carite was undoubtedly insolvent. Two of the notes, held by Tremoulet for Clement, had become due, and remained unpaid. He was in arrears on account of interest. He was embarrassed by other debts, for which he was pressed, so as seriously to threaten the uninterrupted prosecution of the business of the plantation. The notes were placed by Tremoulet in the hands of an attorney for collection. The necessary formal preliminary demand of payment was made. A negotiation for an extension of time was begun by Carite, who suggested that he could make such an arrangement with all his creditors. Tremoulet told Carite that he had no desire to acquire the property, as he represented Clement, who resided in France, and who did not wish a sugar plantation, and would not know what to do with one if he had it; but that he would feel obliged to act upon the matured notes if the consequence of non-action was to be the seizure of the mortgaged propery by other creditors and the consequent diminution of the security. The upshot was his promise to abstain from a seizure under the mortgage until Carite should have time to arrange with his creditors, provided no seizure was made by other parties.

What efforts Carite made to obtain from other creditors the desired indulgence do not appear, but if any were made they did not succeed. On Feb. 7, 1873, Tremoulet, in a letter to Clement, reported that, by an arrangement with Carite, the latter would make no objection to the sale and seizure of the immovables, and would rather facilitate the execution thereof, on condition that Tremoulet would oblige himself, buying them in Clement's name, to resell the same to his wife, from whom he was separated in property, at a price that would cover all that was due to Clement, including interest, costs, and attorney's fees, provided that nobody should put in a higher bid than that amount, the accrued interest to be paid in cash. The terms, he added, were not then fixed, but might be soon, and said that he should not be too exacting, knowing that Carite continues the plantation at his own expense, that everything predicted a good crop, and notwithstanding the depreciation in the value of reale state, the plantation was adequate security for the mortgage to Clement.

On Feb. 10, 1873, Neal and McIntyre, citizens of Kentucky, commenced a proceeding in the Circuit Court for the sequestration of ten mules on the plantation, on which they as vendors claimed to have a lien and privilege for the unpaid purchasemoney, amounting to $2,150, and a writ was accordingly issued to the marshal, requiring him to seize and take possession of them.

On the same day, in consequence of this proceeding, Tremoulet caused executory process to issue in behalf of Clement, and seized the mortgaged property, including the mules sought to be subjected by Neal and McIntyre, which he claimed were subject to the Clement mortgage, because they had become immovables by destination. The plantation and property were taken into possession by the marshal, though Carite was permitted to remain for the purpose of attending to the growing crop, and were advertised for sale. Mr. Edward D. White, Tremoulet's attorney, testified as follows:--

'During the seizure and before the sale quite a number of the creditors of Mulor, Copponex, & Co. and Carite called on me. To all of them I stated exactly what had been said to Carite; that is, that the seizure of the property had been provoked by the threatened removal of the immovables by destination; that the property was not desired by the plaintiff; that he had no intention of bidding on it beyond the amount of his claim, with costs and charges; that Carite had been told if he could successfully arrange with his creditors, indulgence would be given and proceedings stopped.'

On March 3, Tremoulet reported by letter to Clement the fact of seizure and that the property was advertised for sale, saying: 'I am waiting for Mr. Carite to make our arrangements for the sale that I shall make to his wife.' The sale was had on April 5, and on April 10 Tremoulet reported that fact by letter to his principal, saying: 'In case the plantation would have brought wherewith to cover your debt, capital and interest, it was understood that I would not buy the same in, but would receive the amount due you. . . . Now, I am awaiting Mr. Carite to sell the plantation back to his wife on the terms agreed upon. It is well understood that you shall have to bear no costs, the sale having been made only for the purpose of relieving the plantation from the embarrassments in which Moulor had placed it.' He then proceeds to explain the reasons for the resale as proposed, and said: 'Another important reason is, that I could not do you justice in charging myself with the administration of this property at the distance where I am. . . In one word, I preferred in your own interest to resell the plantation, taking all possible precautions, rather than to work the same for your account, notwithstanding the fine prospect of the present crop.' On May 26 he reports the conclusion of his negotiations with Mrs. Carite and the resale to her, giving the details of the purchase. He says: 'I have been obliged to accept from Mrs. Carite a smaller amount than the amount agreed upon in order to make the sale of the immovables, and this in your interest; it was preferable to accept these terms than to keep the plantation and work the same for your account, at the present price of labor. In case I should have refused to effect an understanding with Mrs. Carite, I would not have found a purchaser that would have taken the plantation on the same terms.'

We see nothing in the circumstances of the case as disclosed in this record to impeach the good faith, or affect the validity, of this transaction. Clement had the unquestionable right to subject to judicial sale the property, held as security for his debt, and become its purchaser at two-thirds of its appraised value. No one was wronged by such a procedure, although it had the effect to disappoint every other creditor. The sale was open and public, and there is no suggestion of any attempt to prevent the property from bringing the best price. Every subsequent incumbrancer had the righ and the opportunity to bid upon it, and, if he chose, to buy it for himself. If he neglected or declined to do so, it must be assumed that he made his decision in the pursuit of his own interests. The title acquired by Clement was indefeasible and absolute. No right of redemption remained, and it was subject to no trust. He could dispose of it at his own will. If he chose so to do, he was entirely free to convey it, on any consideration he approved, to Mrs. Carite; as much so, if she was legally capable of receiving title, as to any other person. And what he could lawfully do with the property, after it had become his own, he could agree to do in advance. In all this there is nothing whatever that touches the right of any creditor of Carite. It is a lawful end, pursued by lawful means; and if, by reason of it, others have sustained any loss, it is because the property was not sufficient to pay all for which it had been pledged, or because those interested in the security voluntarily sacrificed their own interests. In neither event is there ground for complaint. The course of Tremoulet seems to have been dictated, as it was justified, by a wise regard to the interests of his absent principal. It was a mere measure of self-protection, to disembarrass the property of debt, to protect it against disorganization and waste, justly apprehended as the result of seizures by subsequent mortgagees and lien-holders, or which might have occurred, if Carite, driven to that necessity, had surrendered it to the delays and expenses of administration and sale, in a court of bankruptcy. We cannot perceive, in the acquisition and disposition of the title by Clement, either an intention or a tendency to impede or defeat the just rights of the appellee, or any other creditor of Carite.

It is further contended, however, that the decree of separation of property between Carite and his wife is void; that she having no capacity, therefore, to receive and hold the title to this plantation as separate property, it inured to the community as before, and was replaced subject to the previously existing liens in their order. It is not conceded that this consequence would result if it should be adjudged that the community had not been interrupted, for it is claimed that the sale to Clement having necessarily destroyed the lien of all subsequent incumbrances, a conveyance to Carite himself, although it would have made the property liable to the pre-existing debts of the community, it could be subjected only by process, open to general creditors by means of judgment and levy under execution. However this may be, we proceed to examine the grounds on which it is urged that the decree of separation of property rendered on the petition of Mrs. Carite should be annulled.

The first of these, and the one on which the Circuit Court based its decree, is that the judgment was never advertised, in violation of art. 2429, Civil Code, which provides that 'the separation of property obtained by the wife must be published three times in the public newspapers at the farthest within three months after the judgment which ordered the same.'

The fact that no such publication was made is not denied, but its omission, it is insisted, does not avoid the judgment. And such is the construction put upon this article by the Supreme Court of Louisiana. In Turnbull v. Davis (1 Mart. (La.) N. S. 568), that court said: 'It is true that by law publication of a separation of property between husband and wife is expressly required; but the pain of nullity is not denounced against a neglect of such publication. It is not a prohibitive regulation, which might, in some instances, imply nullity. We are, therefore, of opinion that a judgment of separation, unattended by publication, is not ipso facto void; but if such laches afford any ground for annulling and declaring it inefficient, it can only be decreed on showing fraud and injury to third parties as a consequence of omitting the publication. In the present case there is no positive testimon that the defendants have suffered injury, resulting from the neglect to publish the decree of separation; nor can such injury be legally presumed from the whole tenor of the evidence.'

The authority of this case was recognized and the decision followed in Raiford v. Thorn, 15 La. Ann. 81, decided in 1860.

We have examined Spires v. McKelvy (23 id. 571), Levistones v. Brady (11 id. 696), Bostwick v. Gasquet (11 La. 534), and Heyman v. The Sheriff, & c. (27 La. Ann. 193), to which we have been referred by counsel for the appellee, and do not find in them anything which overrules the decisions cited above, or that is inconsistent with them.

It is next objected that the judgment of separation of property is null, because, in violation of art. 2428, Civil Code, it was not executed. That article reads as follows: 'The separation of property, although decreed by a court of justice, is null if it has not been executed by the payment of the rights and claims of the wife, made to appear by an authentic act, as far as the estate of the husband can reach them, or at least by a bona fide non-interrupted suit to obtain payment.'

It will be observed that the language of this article differs from that of art. 2429, just considered, in expressly denouncing nullity as a consequence of non-compliance with its requirements. But the nature of the execution must have relation to the nature of the judgment, and the terms of the article manifestly refer to cases where the judgment involves the transfer of property or the payment of money, and not the mere question of the future status of the wife, and her right, independent of her husband, separately to acquire property in her own right. This is the view taken by the Supreme Court of Louisiana in the case of Jones v. Morgan (6 La. Ann. 630), in which it is said that 'the article of the code requiring execution to issue within a limited time after the decree of separation, under a pain of nullity, is only applicable to cases in which there is a judgment against the husband for a sum of money. This precaution is, no doubt, intended for the protection of those with whom the husband is in the habit of dealing. But, in this case, the object of the action was not to recover moneys of the wife; it was simply to put an end to the community and then to secure to the wife and her children the future earnings she might derive from her untiring industry.'

In such a case the intent and effect of the judgment are merely to confer upon the wife, in respect to her future acquisitions, the fruits of her own industry, and the savings of her own economy, the right to act separately from her husband, as though she were sole; and the right becomes fixed and vested by its actual exercise. Holmes v. Barbin, 13 La. Ann. 474.

This is what is meant by what the Supreme Court of Louisiana say in Muse v. Yarborough (11 La. 530), that 'it is not the mere judgment of separation which renders the parties separate of property. The judgment recognizes the necessity for separation and judicially authorizes it; but if not followed by a bona fide execution, it produces no effects, even between the parties.'

It is only when the judgment of separation of property is founded on a cause, which results in the establishment of some claim against the husband's estate susceptible of execution, by some authentic act, or by judicial process to enforce it, that a neglect or failure to insist upon its execution is deemed conclusive evidence that it is the intention of the parties not to dissolve the community. The law in such cases for the protection of creditors, otherwise liable to be misled, annuls the unexecuted judgment of separation. Handy v. Sterling, 1 La. Ann. 308; Longino v. Blackstone, 4 id. 513; Succession of Hearing, 28 id. 149.

The costs of the suit, which Carite was condemned to pay, can hardly be considered any part of the judgment of separation of property, of which execution is requird, and hence the failure to attempt their collection cannot affect its validity. In all other respects his wife assumed and exercised the right conferred upon her by the judgment, dissolving the community between him and her, by the very transaction in question, acquiring by purchase the title, of a plantation, which she has since administered, not less in his lifetime than since his death, so far as the record discloses, in her own name and right, and has thus, in the meaning of the law, executed the judgment of separation.

It is next objected that this judgment is void for want of any legal ground to justify it. The grounds on which it was prayed for, in the wife's petition, are thus stated:--

'Petitioner further represents that, owing to a series of crushing misfortunes, her husband, who was heretofore possessed of considerable means and property, has lately become hopelessly involved in debt, for the satisfaction of which all his property is now being attached, seized, and disposed of by his numerous creditors. That all of her husband's property will not be sufficient to pay and satisfy the enormous debt which is due by him. That, in consequence of the above-recited circumstances, petitioner fears and believes that the earnings of her separate industry may be seized by her husband's creditors, and thus be lost to herself and children; for which reasons petitioner is desirous of being separated in property from her said husband.'

This petition was filed Feb. 13, 1873. This was after the writ of sequestration issued by Neal and McIntyre had been executed, and after the seizure made by Tremoulet under his executory process in behalf of Clement.

Article 2425, Civil Code, which it is alleged regulates this proceeding, reads as follows: 'The wife may, during the marriage, petition against the husband for a separation of property, whenever her dowry is in danger, owing to the mismanagement of her husband or otherwise, or when the disorder of his affairs induces her to believe that his estate may not be sufficient to meet her rights and claims.'

An authoritative construction of this article is found in Wolf v. Lowry, 10 La. Ann. 272. The court there say: 'In Davock v. Darcy (6 Rob. 342), it was held that the right of the wife to a separation of property was not limited to the cases mentioned in art. 2399 (now 2425) of the code, and that she might obtain a separation of property when the habits and circumstances of her husband rendered it necessary to preserve for her family the earnings from her industry or talents. The same question was afterwards decided in the case of Penn v. Crockett (7 Ann. 343), when the right of the wife, which had been made the basis of the action of separation of property, was the value of a slave which had been given to the wife during marriage, and had been alienated by the husband. The court reaffirmed the former decision and held that, in case of the derangement of the husband's affairs, this was sufficient to authorize a judgment of separation of property in favor of the wife. After these repeated decisions we must consider the law as settled, the question being one of the construction of statutory laws, involving no fundamental principles.'

This doctrine, that a claim for money or property on the part of the wife is not necessary to support a judgment of separation, was reaffirmed in Mock v. Kennedy (11 La. Ann. 525), where the court say: 'It is sufficient for a married woman to prove that she had the skill and industry to earn a separate livelihood, which she had exercised, whether as a seamstress, teacher, milliner, or (as in the case at the bar) a shopkeeper, is not material; she is entitled, under the humane spirit of our jurisprudence, upon proof of this fact, accompanied by proof of the insolvent condition of her husband's affairs, to call upon the court, by a judgment of separation, to protect the fruits and earnings of her separate industry from being squandered by her husband or seized by his creditors.'

I Webb v. Bell (24 La. Ann. 75), a judgment of separation, on appeal, was affirmed, notwithstanding the petition of the wife was opposed by the husband, on the ground that there was neither allegation nor proof that the plaintiff had, at the time of the institution of the suit, a separate trade or industry of any kind from which she was deriving revenue or means inuring to her own benefit. The sole ground of the judgment was the embarrassed circumstances of the husband's affairs. The court said: 'The purpose sought by separation of property and dissolution of community in this case seems to be to enable the wife, by the use of her own limited means and those she might obtain through her relatives, to earn for herself and child a support, without having her earnings fall into the community.'

The same point was expressly decided in Meyer v. Smith & Co. (id. 153), where the only allegation in the petition, on which the judgment was based, was that, 'owing to the insolvency of her husband, it becomes necessary for the preservation of her acquisitions, the education, maintenance, and support of herself and family, that a dissolution of the community, &c., be decreed.'

It is also objected to the judgment of separation that it was by consent, and, therefore, null, as equivalent to a voluntary separation, made void by art. 2427, Civil Code, and that it is not supported by evidence.

Both these objections are met by the case of Powlis v. Cook, 28 id. 546. In that case, as in this, the husband consented that the case might be fixed and tried, but, as the court then said, 'that did not make it a consent judgment.' And as to the proof of the husband's insolvency, the court then say, what may be adopted here, it 'is manifest from this litigation, if not otherwise shown.'

It is also urged that the parish court had no jurisdiction to entertain a suit for separation of property. No adjudication to this effect by the Supreme Court of Louisiana is referred to by counsel; while, on the contrary, it is tacitly assumed to exist, in the case of Willis v. Ward, 30 id. 1282. Art. 87 of of the Constitution of the State, of 1868, then in force, prescribes that parish courts 'shall have exclusive jurisdiction in original suits in all cases where the amount in dispute exceeds one hundred dollars and does not exceed five hundred dollars.' The only limitation of the jurisdiction is as to the amount of money involved in the controversy, and has no relation to the question, where the suit is not prosecuted for the recovery of money or money's worth.

It is finally urged that the property in controversy belongs to the community, notwithstanding the judgment of separation. But on the admission of the validity of the sale to Clement, and of the judgment of separation of property, it is impossible to maintain this position; for, on that supposition, Clement had the right to dispose of the title to Mrs. Carite, precisely as to any other person capable of purchasing. The sale was made on credit, except as to the small sum of $1,243.73, and it does not help the contention of the counsel for the appellee on this point to admit what he says 'that every cent that Mrs. Carite has paid on account of the purchase of the plantation was simply a part of the profits of the plantation itself;' because it is not claimed that any portion of those profits accrued prior to the time when all the interest which Carite, or any of his creditors, subsequent in right to Clement, ever had in the property, had been divested by the sale to him. Consequently it is fully shown that the community had no claim to any of the consideration paid by her for her purchase.

Upon these grounds the Circuit Court should have dismissed the bill of the appellee for want of equity, and for this error the decree will be reversed, and the cause remanded with directions to render a decree dismissing the bill; and it is

So ordered.

title: Carite v. Trotot/Opinion of the Court


text: Talk:Carite v. Trotot/Opinion of the Court

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


text:
Paper-Bag Cases

APPEALS from the Circuit Court of the United States of the Southern District of Ohio.

The facts are stated in the opinion of the court.

Mr. George Harding and Mr. John R. Bennett for the Paper-Bag Machine Company.

Mr. James Morse and Mr. E. W. Kittredge, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Paper-Bag Cases


text: Talk:Paper-Bag Cases

title: Talk:Paper-Bag Cases


text:
Paper-Bag Cases/Opinion of the Court

On the 28th of April, 1857, a patent was granted to Charles H. Morgan and Benjamin R. Smith for an investion by Benjamin F. Rice of a 'machine for making paper bags.' This will hereafter be referred to as the Rice patent. By agreements entered into on the 11th of February and 12th of August, 1859, the owners of this patent executed to Martin Nixon, Thomas Nixon, and William H. Chatfield, partners, under the name of Nixon & Chatfield, a license for the exclusive use of the patended machines within certain territory, which included the States of Ohio and Indiana. Thomas Nixon, one of the licensees, is one of the parties to these appeals, and upon the dissolution of the firm of Nixon & Chatfield, in the year 1865, his interest in the license passed to and became vested in Chatfield & Woods. On the 6th of March, 1860, a reissue of this patent was granted to Charles H. Morgan, Leonard Whitney, Jr., and Thurston Priest. Some time about the year 1863, Francis H. Morgan (a brother of Morgan, one of the patentees) became the owner of one of the machines covered by this patent, with an unrestricted license for its use. Morgan, the patentee, was for a time a joint owner of the machine with his brother, but he afterwards parted with his interest, and Francis H. Morgan became the sole owner. While there is no testimony in the case showing any instrument in writing by which the other patentees united in a license for the use of this machine, we are entirely satisfied that they gave their assent to what was done by Charles H. Morgan, and are in no condition to claim adversely to the license which he undertook to grant.

On the 17th of March, 1863, another patent was issued to Charles H. Morgan for an improvement in paper-bag machines. This will hereafter be referred to as the Morgan patent. Afterwards, Francis H. Morgan became the owner of two machines containing the improvements embraced in this patent, with an unrestricted license for their use. On the 26th of October, 1865, an exclusive license for the use in Philadelphia of machines embraced in both patents was granted to Francis H. Morgan, but there is no testimony showing that his rights in respect to the machines he already owned were confined to that territory, and there is no doubt but that he owned all the machines now in question long before this exclusive license was given.

On the 27th of November, 1865, which was after Thomas Nixon had retired from the firm of Nixon & Chatfield, and transferred all his interest in the exclusive license for the Rice patent to the other partners, Francis H. Morgan sold and conveyed to Thomas Nixon the two Morgan machines which he owned, and agreed to furnish on demand all other machines of like pattern and workmanship which Nixon might want. Nixon on his part bound himself not to use the machines he got in this way except within the States of Ohio and Indiana, and to pay the owner of the patent a royalty of three cents on every thousand bags made. He also agreed not to use any other machines in the manufacture of bags than such as he procured under this contract.

Afterwards, on the second day of November 1866, Nixon wanted another machine, and called on Francis H. Morgan to furnish it under his contract. Morgan having none of the Morgan machines on hand at the time, offered his Rice machine in the place of the one called for by the contract. This Nixon agreed to accept, if he could be released from his obligation not to use any other than Morgan machines within his territory. Morgan thereupon stipulated accordingly, and Nixon took the machine.

All these things were done by Francis. Morgan with the full knowledge and consent of Charles H. Morgan, who was then the sole owner of his own patent and of a half-interest in that of Rice. An attempt was made to show the contrary of this, but the testimony leaves no doubt in our minds as to the fact.

Nixon took to Richmond, Indiana, all the machines he got from Francis H. Morgan, and either himself or through others carried on the manufacture of bags by their use. On the 21st of April, 1871, the Rice patent was extended for seven years from April 28, 1871, on the application of Roxana Rice, the widow and executrix of the inventor. Mrs. Rice assigned the extended patent to the Union Paper-Bag Machine Company, and that company, on the 27th of June, 1871, granted to Chatfield & Woods the exclusive right to use in the States of Ohio and Indiana machines constructed under the patent. At the same time the company granted to the same parties the exclusive right of using within the same territory other machines covered by other patents which it owned, reserving a royalty of four cents on every thousand bags manufactured by any of the machines.

On the 17th of July, 1871, after this assignment, the Bag Company and Chatfield & Woods sued Thomas Nixon, Morris H. Nixon, and William Anderson, alleged to be doing business as partners under the name of Nixon & Company, to restrain them from using the Rice machine. The defendants answered, denying the alleged partnership, and averring that the business was carried on by Morris H. Nixon and Wiliam Anderson alone, they using the machine which belonged to Thomas Nixon and paying him a stipulated rent therefor. The suit was then discontinued as to Thomas Nixon, and from that time it was prosecuted alone against the other defendants. A new suit of a similar character was, however, begun against Thomas Nixon, and the two were carried on together. In both the suits answers were filed, denying, in effect, the validity of the patent and the infringement; but on the 31st of May, 1873, decrees were entered in both cases, enjoining the defendants from using the machine, and ordering a reference to a master to state an account of profits and damages.

The accounting was continued before the master until the 14th of June, 1876, when Thomas Nixon paid to the Bag Company the sum of $7,543, and took a receipt therefor, as follows:--

'CINCINNATI, June 14, 1876.

'Received of Thomas Nixon the sum of seven thousand five     hundred and forty-three dollars (7,543.00) money due under      the contract of F. H. Morgan with Thomas Nixon, dated      November 27th, 1865, and in full for the amount which the      said Thomas Nixon reported to be due as royalties under said      contract, May 10, 1876.

'$7,543.00. UNION PAPER-BAG MACHINE CO.,

'By EDWIN J. HOWLETT, Pres.'

The hearing before the master was continued after this payment was made, and on the 23d of October, 1877, a report was filed, in which the master stated that the period covered by his inquiries was from June 27, 1871, the date of the exclusive license to Chatfield & Woods, to June 9, 1875, the date of the service of the injunction in the case. He also set forth the facts as to the constracts with Francis H. Morgan, and the payment of the royalties thereunder, substantially as they have already been given. He found that the number of bags manufactured by Nixon & Company between the dates above mentioned was 93,500,000, and that the royalty fixed by the Bag Company for the use of all its machines was four cents a thousand.

After the report was filed, the defendants in each of the cases asked and obtained leave to put in a supplemental answer, setting up the contract with Francis H. Morgan, and the payment to and acceptance by the Bag Comapny of the royalties due thereunder on the 14th of June, 1876. Upon the final hearing, after these answers were in, the court proceeded on the evidence to state the accounts, and decreed that Chatfield & Woods had no right on the pleadings and evidence to any recovery. As to the Bag Company, it was found that it was the on er of the Rice patent; that it had an established license fee for the use of the several patents for improvements in paper-bag machinery, referred to in its licenses to Chatfield & Woods, and others, of four cents a thousand bags; that this license fee included the use of the Rice machine; that the Francis H. Morgan contract operated as a license to Nixon for the use of the Morgan machines, but not of the Rice machine; that 93,500,000 bags had been manufactured by Nixon & Anderson, by the use of all three of the machines; that they had already paid three cents a thousand on their royalty and must now pay one cent a thousand more, amounting in the aggregate to $935, for which a decree was entered against them. From this decree both parties have appealed; the Bag Company and Chatfield & Woods claiming that the defendants were liable to them, not for the license fee, but for the profits they made by the use of the Rice machine, and the defendants that the payment by Thomas Nixon of the royalty reserved under the Francis H. Morgan contract was a full satisfaction of all claims that could be made on them for the use of this machine, as well as those constructed under the Morgan patent.

In the suit against Thomas Nixon the same general conclusions were reached as in that against Morris Nixon and Anderson, but a decree for one cent damages only was rendered against him, because he only rented his machines to others to be used, and did not use them himself. From this decree, also, both parties appealed.

Upon the foregoing facts, the first question that presents itself is whether the use of the Rice machine was included in the royalty fixed by the contract of Francis H. Morgan with Thomas Nixon. If it was, then clearly, so far as the Bag Company is concerned, the acceptance of the stipulated royalty was a satisfaction of all claims for damages. This was substantially conceded on the argument.

The right of the owner of a patented machine, without any conditions attached to his ownership, to continue the use of his machine during an extended term of the patent, is well settled. Bloomer v. McQuewan, 14 How. 539; Chaffee v. Boston Belting Co., 22 id. 217; Mitchell v. Hawley, 16 Wall. 544; Adams v. Burke, 17 id. 453. Consequently Francis H. Morgan had, by his ownership of the Rice machine, the right to its use during the extended term of the patent. He could also sell it to others to be used in the same way. Power to sell the machine and transfer the accompanying right of use is an incident of unrestricted ownership. The contract of Morgan was to furnish Thomas Nixon with all the Morgan machines he wanted to use in the designated territory at the stipulated price and royalty. When called upon to furnish one of these machines under the contract he persuaded Nixon to take the Rice machine instead. Under these circumstances there cannot be a doubt that it was the intention of the parties to put the Rice machine in the place of a Morgan machine under the contract, and that whatever compensation was to be paid to the patentee for the use of the Morgan machine must be paid for the use of the Rice machine. It follows that, so far as the Bag Company is concerned, there should have been no decree against Nixon & Anderson. The payment of the royalty in June, 1876, was in full for the use of the Rice machine as well as the Morgan machines.

Next, as to Chatfield & Woods. Their exclusive right to the use of the Rice machine continued no longer than the term of the original patent. Wilson v. Rousseau, 4 How. 646. The Bag Company does not appear ever to have had any interest in the patent before the extension. Chatfield & Woods have never been anything else than licensees. As such they could not sue for an infringement. All their rights must be enforced through or in the name of the patentee. Littlefield v. Perry, 21 Wall. 205. Their recovery in this case, therefore, must be limited to their rights under the license from the Bag Company. Such was the understanding of the mastr, for he distinctly states in his report that his inquiries were confined to the period between the date of this license and the service of the injunction which stopped all further use of the machines.

Whatever may have been the effect of the first exclusive license held by Chatfield & Woods upon the right of Nixon to use his Rice machine in Indiana before the end of the original term of the patent, as that license ceased when the term expired, it necessarily follows that during the extended term no questions can arise under that license. After the extended term began, that license did not stand in the way of the use by Nixon of his machine wherever he pleased, and the Bag Company took its title subject to his rights as an unrestricted owner, save in respect to royalties, of one of the patented machines. Chatfield & Woods took their license subject to the same rights in Nixon. They cannot claim as against Nixon more than the company could convey, and as Nixon was in legal effect operating his machine under a valid license superior to theirs, it follows that in this suit there can be no recovery in their behalf. Their remedy, if they have any, is against the company on their contract for the license, or to secure the benefit of the royalty.

From what has thus been said it appears that the decree in the suit against Nixon & Anderson, as far as it requires the payment of damages, was wrong. As the payment of the royalty was not made until long after the interlocutory decree sustaining the validity of the patent, and the supplementary answer setting up the special defence was not filed until after the report of the master was in, it was right to charge the costs against them.

So far as the appeal of Thomas Nixon is concerned, the controversy is really as to costs alone. The decree against him will consequently not be considered. Canter v. American & Ocean Insurance Companies, 3 Pet. 307; Elastic Fabrics Co. v. Smith, 100 U.S. 110.

The decree in the case against Nixon & Anderson will be reversed, with costs, and the cause remanded with instructions to enter a decree against the defendants for one dollar only and costs of suit. That in the suit against Thomas Nixon alone will be affirmed, each party to pay the costs of his own appeal; and it is

So ordered.

MR. JUSTICE MATTHEWS, MR. JUSTICE GRAY, and MR. JUSTICE BLATCHFORD did not sit in these cases, nor take any part in deciding them.

title: Paper-Bag Cases/Opinion of the Court


text: Talk:Paper-Bag Cases/Opinion of the Court


text:
The Mamie

APPEAL from the Circuit Court of the United States for the Eastern District of Michigan.

The 'Mamie,' a small pleasure-yacht propelled by steam, was run down and sunk by the steamer 'Garland' in the Detroit River, July 22, 1880. More than fourteen passengers on the 'Mamie' were drowned.

Thirteen different suits, each claiming damages in the sum of $5,000, were, under the statute of Michigan entitled 'An Act requiring compensation for causing death by wrongful act, neglect, or default,' brought in the Superior Court of Detroit, within the Eastern District of Michigan, against the owners of the 'Mamie,' by the several administrators of the passengers who had perished by reason of the collision.

A petition in admiralty was filed in the District Court of the United States for the Eastern District of Michigan by the owners to obtain the benefit of a limitation of their liability to a sum not exceeding the amount or value of their interest in the yacht, and also to contest with each separate plaintiff in the State court (being summoned into the admiralty court) the question of any liability at all to him, and of the damages due to the estate of his interstate, if any, and to enjoin him from proceeding in the State court.

The court dismissed the petition. The decree was, on appeal, affirmed by the Circuit Court, and the petitioners thereupon appealed here.

A motion is now made to dismiss the appeal, on the ground that the matter in dispute, exclusive of costs, does not exceed the sum of $5,000. Thec onceded value of the 'Mamie' was less than $5,000.

Mr. Alfred Russell in support of the motion.

Mr. A. B. Maynard and Mr. H. H. Swan, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: The Mamie


text: Talk:The Mamie

title: Talk:The Mamie


text:
The Mamie/Opinion of the Court

The record has not been printed, but the value of the matter in dispute, as shown by the briefs submitted, is at least the full amount of all the claims against the owners of the 'Mamie' in the several suits which it was the object of this proceeding to defeat, as against anything else than the boat or her value. This, according to the showing now made, is largely in excess of $5,000.

Motion denied.

MR. JUSTICE GRAY and MR. JUSTICE BLATCHFORD did not sit in this case, nor take any part in deciding it.

title: The Mamie/Opinion of the Court


text: Talk:The Mamie/Opinion of the Court

title: Talk:The Mamie/Opinion of the Court


text:
Category:USAMGIK Ordinance

ko:분류:군정법령

title: Category:USAMGIK Ordinance


text:
Parker v. Morrill

Gideon D. Camden, for the motion.

D. D. Lord, opposed.

WAITE, C. J.

title: Parker v. Morrill


text: Talk:Parker v. Morrill

title: Talk:Parker v. Morrill


text:
Parker v. Morrill/Opinion of the Court

This is a motion to dismiss for the reason that it does not appear in the record or by affidavits that the value of the matter in dispute exceeds $5,000. The record shows that Willard Parker, Jr., the appellant, as the owner of one undivided twentieth part of a large tract of land in West Virginia, embracing within its boundaries several hundred thousand acres, filed his bill in equity against Willard Parker, Sr., as the owner of the remaining nineteen-twentieths, and Morrill, the appellee, for a partition as between himself and Parker, Sr., and to remove a cloud upon the title to a part of the tract caused by a claim set up by Morrill. Upon the hearing the court below dismissed the bill as to Morrill, and from a decree to that effect Parker, Jr., took this appeal. Parker, Sr., did not appear as an actor in the court below, and has not united in the appeal.

The lands claimed by Morrill are not described, either in the bill or in the answer of Morrill, otherwise than by reference to certain patents, under which he assumed to hold. These patents covered between fifty and sixty thousand acres. In one of the depositions it is shown that when the suit was begun Morrill claimed about 25,000 acres. The value of the property is nowhere stated. The whole tract in which Parker, Jr., claimed his undivided interest included very much more than the Morrill lands. On the eleventh of January, 1854, this whole tract was conveyed to Peter Clark by deed reciting a consideration of $3,090. Clark, on the twenty-ninth of March, 1854, conveyed it to William W. Campbell by deed, in which the consideration is stated to have been $8,000. On the fifth of May, 1858, Campbell conveyed to Parker, Sr., for a nominal consideration, and on the second of November, 1872, Parker, Sr., conveyed the one undivided twentieth to Parker, Jr., for $2,000. In his petition for this appeal, filed September 8, 1880, Parker, Jr., states the value of the lands claimed by Morrill to be over $2,000. Notice of the present motion was served on the counsel for the appellant in May last. The brief in support of the motion was filed here on the sixth of May. That of the appellant was filed on the seventh of October. Notwithstanding the dismissal was claimed on account of the value of the matter in dispute, no attempt has been made by the appellant to supply the defect in the record by affidavits, as under our practice might have been done; but to defeat the motion he relies entirely on the evidence of value to be found in the record.

As the case stands, only the interest of Parker, Jr., in the lands is in question here. This is one undivided twentieth part only. As Parker, Sr., has not appealed, the value of his interest in the property cannot be taken into the account. The claim of Morrill is only for 25,000 acres. One-twentieth of this would be 1,250 acres; and certainly, in the light of the facts appearing all through the record, we cannot say that their value exceeds $5,000.

The motion to dismiss is granted.

title: Parker v. Morrill/Opinion of the Court


text: Talk:Parker v. Morrill/Opinion of the Court


text:
Bostwick v. Brinkerhoff

E. L. Fancher, for plaintiffs in error.

J. Hervey Cook, for defendant in error.

WAITE, C. J.

title: Bostwick v. Brinkerhoff


text: Talk:Bostwick v. Brinkerhoff

title: Talk:Bostwick v. Brinkerhoff


text:
Bostwick v. Brinkerhoff/Opinion of the Court

This was a suit begun in the supreme court of the state of New York by a stockholder in a national bank against the directors to recover damages for their negligence in the performance of their official duties. A demurrer was filed to the complaint, which raised, among others, the question whether such an action could be brought in a state court. The supreme court at special term sustained the demurrer and dismissed the complaint. This judgment was affirmed at general term. An appeal was then taken to the court of appeals, where it was ordered and adjudged 'that the judgment of the general term * *  * be *  *  * reversed and judgment rendered for plaintiff on demurrer, with costs, with leave to the defendants to withdraw the demurrer within 30 days, on payment of costs, *  *  * and to answer the complaint.' It was also further ordered that the record and the proceedings in the court of appeals be remitted to the supreme court, 'there to be proceeded upon according to law.' From this judgment of the court of appeals a writ of error was taken to this court, which the defendant in error now moves to dismiss because the judgment to be reviewed is not a final judgment.

The rule is well settled and of long standing that a judgment or decree to be final, within the meaning of that term as used in the acts of congress giving this court jurisdiction on appeals and writs of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered. Whiting v. Bank of U.S. 13 Pet. 15; Forgay v. Conrad, 6 How. 204; Craighead v. Wilson, 18 How. 201; Beebe v. Russell, 19 How. 285; Bronson v. Railroad, 2 Black, 531; Thomson v. Dean, 7 Wall. 345; St. Clair Co. v. Livingston, 18 Wall. 628; Parcels v. Johnson, 20 Wall. 654; Railroad Co. v. Swasey, 23 Wall. 409; Crosby v. Buchanan, Id. 453; Com'rs v. Lucas, 93 U.S. 113. It has not always been easy to decide when decrees in equity are final within this rule, and there may be some apparent conflict in the cases on that subject, but in the common-law courts the question has never been a difficult one. If the judgment is not one which disposes of the whole case on its merits, it is not final. Consequently it has been uniformly held that a judgment of reversal with leave for further proceedings in the court below cannot be brought here on writ of error. Brown v. Union Bank, 4 How. 466; Pepper v. Dunlap, 5 How. 51; Tracy v. Holcombe, 24 How. 426; Moore v. Robbins, 18 Wall. 588; McComb v. Knox Co. 91 U.S. 1; Baker v. White, 92 U.S. 176; Davis v. Crouch, 94 U.S. 514. This clearly is a judgment of that kind. The highest court of the state has decided that the suit may be maintained in the courts of the state. To that extent the litigation between the parties has been terminated, so far as the state courts are concerned, but it still remains to decide whether the directors have in fact been guilty of the negligence complained of, and, if so, what damages the stockholders have sustained in consequence of their neglect. The court of appeals has given the defendants leave to answer the complaint, and the trial court has been directed to proceed with the suit accordingly. Such being the case, it can in no sense be said that the judgment we are now called on to review terminates the litigation in the suit.

The motion to dismiss is granted.


text: Talk:Bostwick v. Brinkerhoff/Opinion of the Court


text:
Ex Parte Baltimore and Ohio Railroad Company

J. H. B. Latrobe, J. K. Cowen, and

E. J. D. Cross, for petitioner.

John H. Thomas and G. Leiper Thomas, contra.

WAITE, C. J.


text: Talk:Ex Parte Baltimore and Ohio Railroad Company


text:
Ex Parte Baltimore and Ohio Railroad Company/Opinion of the Court

A collision occurred in the harbor of Baltimore, Maryland, between the steamer Knickerbocker, owned by the Baltimore & Ohio Railroad Company, and the barge J. J. Munger, owned by Jeannette Maxon. The barge was loaded with grain belonging to the partnership firm of J. & C. Moore & Co. Both the barge and her cargo were injured in the collision, and the owners of the barge united with the owners of the cargo in a libel against the steamer to recover the damages they had respectively sustained. The suit thus begun terminated in a decree in the circuit court for the district of Maryland in favor of the owner of the barge for $1,471.20, and in favor of the owners of the cargo for $3,709.13. The railroad company, as the claimant of the steamer, prayed an appeal to this court, which was refused by the circuit court on the ground that the value of the matter in dispute between the steamer and the respective libelants was less then $5,000. The company now asks a mandamus from this court requiring the circuit court to allow an appeal.

It is impossible to distinguish this case in principle from Oliver v. Alexander, 6 Pet. 143; Stratton v. Jarvis, 8 Pet. 4; Spear v. Place, 11 How. 522, and Rich v. Lambert, 12 How. 347, under which, for half a century, it has been held that when in admiralty distinct causes of action in favor of distinct parties, growing out of the same transaction, are united in one suit, according to the practice of the courts of that jurisdiction, distinct decrees in favor of or against distinct parties cannot be joined to give this court jurisdiction on appeal. In Seaver v. Bigelows, 5 Wall. 208; Paving Co. v. Mulford, 100 U.S. 147; and Russell v. Stansell, 105 U.S. 303, this rule was applied to analogous cases in equity.

The cases of Shields v. Thomas, 17 How. 4; Market Co. v. Hoffman, 101 U.S. 112; and The Connemara, 103 U.S. 754, relied on in support of the present application, stand on an entirely different principle. There the controversies were about matters in which the several claimants were interested collectively under a common title. They each had an undivided interest in the claim, and it was perfectly immaterial to their adversaries how the recovery was shared among them. If a dispute arose about the division it would be between the claimants themselves, and not with those against whom the claim was made. The distinction between the two classes of cases was elearly stated by Chief Justice TANEY in Shields v. Thomas, and that case was held to be within the latter class. It may not always be easy to determine the class to which a particular case belongs, but the rule recognizing the existence of the two classes has long been established.

Neither is the case of The Mamie, 105 U.S. 773, an authority in support of this application. That was a suit by the owners of the pleasure yacht Mamie to obtain the benefit of the act of congress limiting the liability of the vessel owners. Rev. St. §§ 4283-4289. The aggregate of the claims against the yacht was $65,000, but no single claim exceeded $5,000. The theory of the proceeding authorized by this act of congress is that the owner brings into court the fund which he says belongs to all who have claims against him or his vessel growing out of the loss, and surrenders it to them collectively in satisfaction of their demands. If he succeeds, all the claimants have a common interest in the fund thus created, and are entitled to have it divided between them in proportion to the amount of their respective claims. With this division the owner of the vessel has nothing to do. He surrenders the fund and calls on all who have claims against him growing out of the loss to come in and divide it among themselves. The controversy in the suit is not in respect to his liability to the different parties in interest, but as to his right to surrender the fund and be discharged of all further liability. His dispute is not with any one claimant separately, but with all collectively. He insists that his liability in the aggregate does not exceed the value of his interest in the vessel; that they must pay all their several demands amount to. He does not seek to have it determined how much he owes each one of them, but to what extent he is liable to them collectively. The difference between what he admits his liability to be, and the aggregate amount of the demands against him, is the amount in dispute. In the case of the Mamie this difference was more than $5,000 dollars, and we consequently took jurisdiction.

It follows that the circuit court properly refused to allow the appeal, and the petition for a mandamus is therefore denied.


text: Talk:Ex Parte Baltimore and Ohio Railroad Company/Opinion of the Court


text:
Coughlan v. District of Columbia

W. D. Davidge and R. Fendall, for plaintiff in error.

A. G. Riddle, for defendant in error.

GRAY, J.

title: Coughlan v. District of Columbia


text: Talk:Coughlan v. District of Columbia

title: Talk:Coughlan v. District of Columbia


text:
Coughlan v. District of Columbia/Opinion of the Court

This is an action to recover damages for a personal injury sustained by reason of a defect in a highway. The supreme court of the District of Columbia originally held that the action could not be maintained against the defendant, and gave judgment in its favor. But this court on writ of error reversed that judgment and ordered a new trial. Dant v. Dist. of Columbia, 91 U.S. 557. Upon the present record that decision of this court must, as was assumed by both counsel at the argument, be considered as settling the law of the case on the question then decided.

This record shows the following proceedings: At October term, 1876, of the supreme court of the District of Columbia, held by one justice, a new trial was had pursuant to the mandate of this court. On the eighteenth of November a verdict was returned for the plaintiff in the sum of $5,000, and judgment rendered thereon, and the defendant moved the judge for a new trial, because the verdict was contrary to law and the instructions of the court, and to the evidence in the case, and because the damages were excessive. On the twenty-sixth of December that motion was overruled. On the fifth of January, 1877, the defendant filed this appeal: 'And now comes the defendant by its attorney, and appeals from the judgment rendered against it at this term to the general term of said court, having first filed in said cause a statement of the case;' and on the same day October term, 1876, was adjourned without day.

No statement of the case was filed until the next term, at which, on the ninth of March, 1877, a transcript of the pleadings and of the instructions to the jury, and an abstract of all the testimony given in the cause, were filed, with a certificate, under the hand and seal of the judge who presided at the trial, to their correctness, and 'that, for the purpose of making a case stated on appeal by the defendant from the verdict of the jury and the order of the justice refusing a new trial, I sign and seal this paper, and order it to be filed as of the day of appeal, January 5, 1877, the defendant not having been guilty of laches in the case; that to my signing and sealing this paper the plaintiff objects, which objection is overruled by me, and to the overruling of which objection the plaintiff excepts.'

At September term, 1877, there was a 'motion for new trial on case stated, filed in general term, October 3, 1877;' and on the eighth of December, 1877, the court in general term reversed the judgment below, and remanded the case to be tried anew. At the third trial the jury returned a verdict for the defendant under an instruction that the plaintiff could not recover because the evidence showed contributory negligence on his part. To this instruction he tendered a bill of exceptions, which was allowed and made part of the record, and, after judgment on this verdict for the defendant, was entered at a general term of the court, which, on the eleventh of November, 1878, affirmed the judgment, and on the next day the plaintiff sued out this writ or error.

Since the entry of the case in this court the plaintiff has died, and the action is prosecuted by his administrator.

The Revised Statutes of the United States relating to the District of Columbia contain the following provisions: An exception taken at the trial of a cause may be reduced to writing at the time, or 'may be entered on the minutes of the justice, and afterwards settled in such manner as may be provided by the rules of the court, and then stated in writing in a case or bill of exceptions, with so much of the evidence as may be material to the questions to be raised.' Section 803. The justice who tries the cause may, in his discretion, entertain a motion, entered on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; 'but such motion shall be made at the same term at which the trial was had.' Section 804. 'When such motion is made and heard upon the minutes, an appeal to the general term may be taken from the decision, in which case a bill of exceptions or case shall be settled in the usual manner.' Section 805. 'A motion for a new trial on a case or bill of exceptions, and an application for judgment on a special verdict or a verdict taken subject to the opinion of the court, shall be heard in the first instance at a general term.' Section 806.

By the rules of the supreme court of the District of Columbia, which are made part of the record, every motion for a new trial must be in writing, and state the grounds upon which it is based, and be made within four days after verdict, and be entered on the minutes of the court on the day on which it is presented. Rule 61. 'The bill of exceptions must be settled before the close of the term, which may be prolonged by adjournment in order to prepare it.' Rule 65. And 'in every case the fact of the settling and filing of the bill of exceptions, and that it is made part of the record, shall be noted on the minutes of the court.' Rule 68.

By the statutes above quoted, although a motion for a new trial on a case or bill of exceptions may 'be heard, in the first instance, at a general term,' any exception stated in the case or bill must either have been reduced to writing at the trial, or have been then entered on the minutes of the justice, and 'afterwards settled in such manner as may be provided by the rules of the court,' and those rules require it to be 'settled before the close of the term.'

The record in this case shows that October term, 1876, was adjourned without day on the fifth of January, 1877, and does not show, otherwise than by the certificate afterwards filed by the judge, what were his rulings in matter of law, or that any exception to such rulings was taken by the defendant. The only motion for a new trial made within four days after verdict, as required by the sixty-first rule, was the motion filed at that term. Even if the court in general term could dispense with its rules so far as to entertain an original motion for a new trial after the time therein prescribed, and if the 'motion for a new trial upon case stated filed in general term October 3, 1877,' can be deemed a distinct motion filed for the first time in the general term, the difficulty remains that the only case stated which appears of record is the case stated by the judge two months after the final adjournment of the term at which he had overruled the motion made before him for a new trial on the ground, among others, that the verdict for the plaintiff was contrary to law, and had rendered judgment on that verdict, and an appeal from his judgment had been taken to the general term. At that stage of the case the judge could not, without contravening the express provisions of the statutes and the decisions of this court, present for consideration in an appellate court questions of law which had not been made part of the record at the term at which his judgment was rendered. Generes v. Bonnemer, 7 Wall. 564. The judgment setting aside the verdict for the plaintiff and ordering a new trial was therefore erroneous, whether it is to be treated as proceeding upon a distinct motion filed at the general term, or upon an appeal from the decision of the judge on the original motion filed before him.

As the error appears on the record, no bill of exceptions was necessary to secure the rights of the party aggrieved. Bennett v. Butterworth, 11 How. 669. As the erroneous order directed further proceedings in the court below, he could not bring the case to this court until after such proceedings had been had and a final judgment rendered against him. Baker v. White, 92 U.S. 176; Bostwick v. Brinkerhoff, ante, 15. As without that error the final judgment could not have gone against him, the question is open on his writ of error upon the final judgment.

The judgment rendered upon the verdict in favor of the plaintiff having been erroneously set aside, the subsequent final judgment for the defendant must be reversed, and the former judgment for the plaintiff affirmed as of the date when it was rendered, in order to prevent the action from being abated by the subsequent death of the plaintiff. Mitchell v. Overman, 103 U.S. 62. Ordered accordingly.

FIELD, J., was not present at the argument, and took no part in the decision of this case.


text: Talk:Coughlan v. District of Columbia/Opinion of the Court


text:
Bayly v. Washington and Lee University

ERROR to the Supreme Court of the State of Louisiana.

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

John H. Kennard and W. W. Howe, for plaintiff in error.

Henry J. Leavy, for defendant in error.

MILLER, J.

title: Bayly v. Washington and Lee University


text: Talk:Bayly v. Washington and Lee University


text:
Bayly v. Washington and Lee University/Opinion of the Court

In the second district court of the parish of Orleans, in the matter of the succession of R. H. Bayly, there was an opposition to the homologation of the account presented by George M. Bayly, executor of said R. H. Bayly, by the Washington and Lee University, which was a legatee under the will of the deceased. This opposition, so far as the case before us is concerned, was to an item of $18,021.79, which that court decided to be a debt from the firm of Bayly & Pond, the members of which had been declared bankrupt, and in regard to whom a resolution of composition by the creditors had been confirmed by the district court of the United States. The plaintiff in error here relied upon this composition as discharging him, both as executor of the estate of his brother and as a member of the partnership of Bayly & Pond, from liability for the item, and the inferior court, accepting this view of the matter, made an order that it should only be paid in due course of administration. On appeal of the Washington and Lee University, the supreme court of Louisiana decided that the item represented a debt by the executor of a fiduciary character, which was not barred by the composition order, and directed a judgment against Bayly in cash for the amount of it, to which judgment this writ of error is prosecuted.

The proposition argued here, namely, that a composition in a bankruptcy case, ratified by order of the district court, operates as a discharge of the bankrupt from all his debts, including those arising from fraud or growing out of a fiduciary relation, as well as others, was decided adversely by this court some two years after the present writ of error was sued out, in the case of Wilmot v. Mudge, 103 U.S. 217. It is there held that notwithstanding the comprehensive terms in which the act of 1874, in its seventeenth section, declares such a composition to be binding, it was not intended to repeal section 5117 of the Revised Statutes, which enacts that 'no debt created by fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy.' This decision disposes of the only question in the record of which this court has jurisdiction. It decides that whatever may be due by plaintiff in error to the succession as executor is not discharged by the proceeding in bankruptcy, and he is left to account with the court in that character as though no composition in bankruptcy had been made. Whether in that accounting he was executor or not, and whether as such executor he had so dealt with the item in question as to be relieved of liability as executor or to be bound for it, are matters depending on the application of the law of Louisiana to the facts of the case, and involve no question under the bankrupt law.

The judgment of the supreme court of Louisiana is affirmed.


text: Talk:Bayly v. Washington and Lee University/Opinion of the Court


text:
USAMGIK Ordinance 27

HEADQUARTERS

UNITED STATES ARMY FORCES IN KOREA

Office of the Military Governor

Seoul, Korea

ORDINANCE NUMBER 27 9 November 1945

  All fishing rights within Korean waters granted by the Japanese Imperial Government, the Governor General of Korea or any other Japanese of Korean governmental subdivision or agency prior to 9 August 1945 to persons natural or juridical, are hereby declared null and void.

 After the effective date of this ordinance all fishing rights within Korean waters will be exercised in accordance with regulations issued by the Bureau of Agriculture and Commerce of the Government of Korea.

 any person violating the provisions of this ordinance, shall, upon conviction of a Military Occupation Court, suffer such punishment as the court shall determine.

 This ordinance is effectice upon its publication in the Officaial Gazette.

 * BY DIRECTION OF THE COMMANDING GENERAL

 * UNITED STATES ARMY FORCES IN KOREA

A. V. ARNOLD

Major General, United States Army

Military Governor of Korea.

군정법령 제27호

title: USAMGIK Ordinance 27


text:
Clark v. Weeks

[Statement of Case from pages 13-15 intentionally omitted]

John E. Parsons, for appellants.

Henry J. Scudder, for appellees.

FIELD, J.

title: Clark v. Weeks


text: Talk:Clark v. Weeks

title: Talk:Clark v. Weeks


text:
Clark v. Weeks/Opinion of the Court

The findings of the circuit court, which are conclusive here, show that the steamer was wholly in fault for its collision with the schooner, and she was, therefore, justly condemned to pay all the damages inflicted.

The only question open for our consideration arises from the exception to the conclusion by the commissioner of the testimony given in another suit by one of the part owners of the schooner as to the extent and value of its repairs. The exclusion, we think, was correct. The statements of the part owner, expressing his judgment as to the matters upon which he was examined, could, at most, bind only himself. They were not evidence against his co-owners, who were merely tenants in common with him, not partners. Story, Part. § 453.

Decree affirmed.

title: Clark v. Weeks/Opinion of the Court


text: Talk:Clark v. Weeks/Opinion of the Court


text:
The North Star and The Ella Warley

Benedict, Taft & Benedict, for the owners of the Ella Warley.

Beach & Brown and William Allen Butler, for the owners of the North Star.

BRADLEY, J.

title: The North Star and The Ella Warley


text: Talk:The North Star and The Ella Warley

title: Talk:The North Star and The Ella Warley