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Barrows v. Kindred

ERROR to the Circuit Court of the United States for the Southern District of Illinois; the case being thus:

The statute of Illinois regulating the action of ejectment abolishes all fictions. Its twenty-ninth section provides that 'every judgment in the action of ejectment rendered upon a verdict shall be conclusive as to the title established in such action, upon the party against whom the same is rendered, and against all persons claiming from, through, or under such party, by title accruing after the commencement of such action, subject to the exceptions hereinafter named,' exceptions not material to be noticed. With this statute in force, the plaintiff in error brought an action of ejectment against the defendant in error in the court below, and upon the trial produced a chain of title, consisting of a patent from the United States to Whitney, a deed from Whitney to Vose, the will of Vose, and a deed from his executors to the plaintiff. This deed was dated March 18th, 1861.

The validity of these several links was not denied. They made the chain of title complete, and prim a facie entitled the plaintiff to recover the premises in controversy.

The defendant, thereupon, gave in evidence the record of a judgment relating to the same premises-rendered in a former action of ejectment-wherein the plaintiff in error was the plaintiff, and James R. Gordon was defendant.

The judgment was in favor of the latter. This suit was begun on the 12th June, 1858, and ended June 5th, 1859.

The defendant also proved that he was in possession as the tenant of Gordon; that in the former action set forth in the record in question the plaintiff, Barrows, gave in evidence the same patent from the United States to Whitney, the same deed from Whitney to Vose, a power of attorney from the executors of Vose to S. A. Kingsley, authorizing him to sell and convey the premises, a deed from the executors by Kingsley as their attorney in fact, to Scroggs, and a deed from Scroggs to the plaintiff. This power of attorney from the executors, and the deed executed by Kingsley, were ruled out as void.

The defendant proved, further, that the deed from the executors of Vose to the plaintiff was given upon the same consideration as the former deed by their attorneys in fact to Scroggs.

The evidence being closed, the plaintiff asked the court to charge the jury, that the record and evidence relating to the former trial constituted no bar to his right to recover in this action. This the court refused to do, and thereupon charged that the record in connection with the evidence did constitute a bar. The jury found accordingly for the defendant.

To the admission of each of the several parts of this evidence, to the refusal of the court to charge as asked, and to the charge given, the defendant excepted.

The correctness of these instructions was the question now before this court.

Mr. Grimshaw, for the plaintiff in error:

In the first action, the plaintiff was beaten; because, after deducing title in fee from the government to Vose, he failed to trace title from Vose to himself; because-in point of fact, as we may here state-Vose's executors, who had power to sell, had delegated it without authority of law to an attorney, who had conveyed to the plaintiff. And in the second action plaintiff was again beaten, after he had acquired title directly from the executors, subsequent to the judgment in first suit, because he had been beaten in the first suit for want of title, when he commenced the first action.

The present plaintiff was properly defeated in the first suit, because, although he traced title from the government to Vose, he failed to trace it to himself.

In the second suit, by title acquired from Vose, through his executors, who had power to convey, he showed title in himself, acquired after the former judgment, and regularly derived from the government through Vose to himself.

He should not be defeated in the first suit, because when he brought that suit he had no title, and then defeated in this suit, because, after the first suit had terminated, he acquired a paramount legal title.

The trial, as far as the plaintiff is concerned, relates to the state of title as it existed in plaintiff when he brought his suit. If he fails in his suit, defendant goes 'without day;' but no title is established by plaintiff's defeat.

Mr. Browning, contra:

The statute has given to the judgment in ejectment the same conclusive effect that other judgments have. Similar statutes exist in a number of the States, and many cases decided under them may be referred to.

The object of the statute is to put an end to litigation, and give repose to society by preventing the same precise question from being twice litigated between the same parties or their privies; and, in applying the statute, the court looks to the claim of the party and the issue joined upon it, and not to the accidents of the trial, to determine whether the first judgment is a bar to the second suit.

Here the plaintiff is the same; the defendant in the second suit is the tenant of the defendant in the first suit; the land sued for is the same; the interest claimed in it the same; the plea the same; putting the title, and that only, in issue in both suits.

The title, therefore, was the thing in issue; and the rule is, that when a matter is once put in issue, the verdict and judgment, whilst they stand, estop the parties from retrying the same issue.

And the effect is the same, whether the parties were prepared for trial or not. The force of the judgment, as an estoppel, is in no degree impaired by the failure of the plaintiff to produce evidence to support his claim.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Barrows v. Kindred


text: Talk:Barrows v. Kindred

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

title: Talk:Barrows v. Kindred


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Barrows v. Kindred/Opinion of the Court

The question of error in the instructions given by the court is the hinge of the controversy between the parties. The statute of Illinois regulating the action of ejectment abolishes all fictions. The twenty-ninth section provides that 'every judgment in the action of ejectment rendered upon a verdict shall be conclusive as to the title established in such action, upon the party against whom the same is rendered, and against all persons claiming from, through, or under such party, by title accruing after the commencement of such action, subject to the exceptions hereinafter named.'

It is not claimed that the exceptions referred to affect this case.

Where a judgment is rendered for the plaintiff, the title upon which he recovered is thereby established, and the construction and effect of the statute are obvious. He must recover in all cases, if at all, upon the strength of his own title, and not upon the weakness of his adversary's. It is not incumbent upon the defendant to show any title. Where a plaintiff shows no title, and is therefore defeated, it is not easy to perceive how any title can be said to have been established in the action, or how, under the statute, the result can affect his right to bring a new action for the same premises. We are not advised of any authoritative interpretation of the statute, in this aspect, by the courts of Illinois. If one were shown we should follow it. But, in the view which we take of this case, it may be conceded that the judgment has the same effect upon the parties, and those in privity with them, as a judgment in a common-law action. As a general proposition, such a judgment is a bar to any future litigation between the parties, and all claiming under them, touching the subject involved in the controversy. It is conclusive of their rights, and shuts the door to further inquiry. This is an elementary principle of all civilized jurisprudence. It has been, and will be, applied in this court upon all proper occasions. It is a principle of repose, and fruitful of good. When the legislature of any State has seen fit to divest the action of ejectment of its ancient characteristics, and to place it upon the same footing with other actions, we have not failed to give full effect to the legislative intent by maintaining the conclusiveness of the judgment, as in other cases.

But, in our judgment, this principle has no application to the case before us.

The suit between Barrows and Gordon was commenced on the 12th of June, 1858, and terminated on the 5th of June, 1859.

The deed from the executors of Vose to Barrows bears date on the 18th of March, 1861. Upon the trial of the case of Barrows v. Gordon the power of attorney from the executors and the deed executed by Kingsley were properly ruled out as void. They were not in the case. Barrows had no title to the premises in controversy, and judgment was given against him. This may be admitted to be conclusive as to his want of title at that time, and, whether the decision of the court as to the power of attorney and the deed made under it was erroneous or not, it would have been a bar to another action attempted to be maintained upon the same state of facts. But this did not deprive Barrows of the right to acquire a new and distinct title; and, having done so, he had the same right to assert it, without prejudice from the former suit, which would have accompanied the title into the hands of a stranger. At the termination of that suit the executors had not passed the title to any one. They did not transfer it for more than a year afterwards.

How, then, can it be said to have been involved in or in anywise affected by the prior litigation? The plaintiff could no more be barred than any other person who might have subsequently acquired the title. In refusing to instruct, and in instructing, as appears by the record, the court committed an error.

The judgment is therefore reversed, with costs, and the cause will be remanded to the court below, with directions to proceed

IN COMFORMITY WITH THIS OPINION.

title: Barrows v. Kindred/Opinion of the Court


text: Talk:Barrows v. Kindred/Opinion of the Court


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United States v. Hathaway

THIS was a certificate of division of opinion between the judges of the Circuit Court of the United States for the Eastern District of Michigan.

The suit was brought to recover a duty of ten per centum ad valorem, under the tariff act of 14th July, 1862, on staves for pipes, hogsheads, and other casks, imported by the defendants in November, 1863, from Canada into the United States.

These articles were exempt from duty by the twenty-third section of the act of March 2d, 1861. But a duty of ten per centum ad valorem was imposed by the sixth section of the act of July 14th, 1862.

By the reciprocity treaty of 1854, between this country and Great Britain, it was stipulated that the following, among other articles, were to be admitted free of duty: 'Timber and lumber of all kinds, round, hewed, and sawed, unmanufactured in whole or in part.'

It was admitted, on the trial, by the defendants, that they had imported from Canada West, at the time charged in the declaration, into the United States, a quantity of white-oak timber split in the form of pipe and hogshead staves at the place of importation, and that they were the growth and produce of the province of Canada.

The main question upon which the judges divided in opinion was, whether, under the reciprocity treaty of 1854, between the United States and Great Britain, and the acts of Congress on the subject, the article of staves, as above described, were liable to duty?

The government had held that the article being split wood was not exempt, but was liable to pay ten per cent. under the act of July 14th, 1862.

Mr. Stanbery, A. G., and Mr. Ashton, Assistant A. G., for the United States:

These articles are not comprehended by the treaty, unless it should appear-1st, that they are timber or lumber; 2d, that they are either round, hewed, or sawed timber or lumber; and, 3d, that they have not been subjected to any process of manufacture.

The second and third conditions are evidently not here fulfilled. The articles are not round, hewed, or sawed, but split timber; and they are also manufactured articles, having been made by hand, and with a special design or purpose, into the shape and form in which they were imported. The process of splitting, though requiring the most common labor, is, we contend, a process of manufacture. The splitting has reduced round or hewed timber into articles of commerce, ready and fit for immediate conversion, by machinery and the employment of a higher art, into other articles of manufacture and commerce. They were not split and sold as mere lumber capable of being used for any purpose whatever; but they were split and sold for the particular use for which they were imported by the defendant.

Literally, anything to which the handiwork of man has been applied becomes manufactured. The older dictionaries confine the meaning of the word entirely to this conversion or character given by touch of hand. The word etymologically means made by hand; but we now largely give it also the sense of being made by machinery.

Mr. Newberry, contra:

The most convenient form for removal from the forests and for transportation, into which oak and other straight-grained hard-wood timber can be reduced, is that of the rough-split pipe and hogshead stave, so called, and such form is also best adapted for the preservation of wood in seasoning, &c.

To reduce the timber into such form does not require skilled labor of the mechanic, but requires only the most common unskilled labor.

Timber split in this form, though called 'rough-split pipe and hogshead staves,' is not wholly or mainly used for the manufacture of hogsheads, pipes, or other casks, but is used in the manufacture of many articles manufactured wholly or in part of wood, and used also, extensively, as tonnage and in the storage of cargoes of ships and vessels.

By coopers, such timber is known as 'coopers' timber,' and is considered and treated as raw material.

In the light of these facts this timber must be held to be unmanufactured, raw material, as much so as any sawed lumber. The fact that timber thus split is commonly called by a name which would seem to indicate a manufactured article is of no consequence whatever. Lumber sawed into particular forms takes such names as, for example, 'flooring,' 'siding,' 'deck plank,' 'lath,' &c., &c. Yet such lumber is not held to be manufactured. Staves are but a species of lumber. Webster, in his dictionary, defines 'lumber' to be 'timber sawed or split for use, as bearers, joyce, boards, planks, staves, and the like.' The labor necessary to be expended to reduce the timber to the form of sawed lumber is evidently greater and more skilled than that necessary to reduce it to the form of rough-split pipe or hogshead staves, so called. What reason, then, could have operated to induce a discrimination in the treaty in favor of the former? We submit that none can be imagined, and that none was contemplated or intended.

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. Hathaway


text: Talk:United States v. Hathaway

title: Talk:United States v. Hathaway


text:
United States v. Hathaway/Opinion of the Court

The construction given to the clause of the treaty by the government excluded the article in question from the free list, and subjected it to the duty of the existing tariff law, which was in the present instance the act of 1862. The regulations of the Secretary of the Treasury declared, that articles of wood entered under the designations of the treaty remained liable to the duty, if manufactured, in whole or in part, by planing, shaving, turning, splitting, or riving, or any process of manufacture, other than rough-hewing or sawing. #fn-s-s

We think this a sound construction of the words of the clause. The treaty admits free of duty, 'timber and lumber of all kinds,' with certain specified limitations, 'round, hewed, and sawed;' which limitations, as respects this branch of the clause, are determined either by the form, or by the work bestowed on the article,-the timber or lumber must be round, hewed, or sawed; if neither, then the article is not brought within the description, and if otherwise brought within it, there is still a further limitation,-'unmanufactured, in whole or in part.' The article may be round, hewn, or sawed, but if it has undergone the process of manufacture, even in part, it is taken out of the free list.

In the present case the article is prepared by splitting for the hand of the cooper, in the manufacture of the pipe or hogshead, a process which has the effect to relieve him from much of the labor that would otherwise be required in adapting it to the use intended. It has been already reduced to the proper form and size-a work which, in the first stages of the manufacture of the hogshead, must be done, and by which a considerable advance is made in fitting and finishing it for the market.

As this treaty has been annulled, the question is no longer of any general importance; and as we concur in the interpretation given to it by the Secretary of the Treasury, it is unnecessary to extend this opinion.

IN THE AFFIRMATIVE.

At the same time with the preceding case was disposed of another, coming, like it, from the Circuit Court of the United States for the Eastern District of Michigan, on a division of opinion of the judges. It was thus—


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


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United States v. Quimby

This suit was brought to recover the duties on 'split timbers' imported from Canada into the United States, and claimed to be exempt under the Reciprocity Treaty, as in the case just disposed of. The treaty exempts from duty 'timber and lumber of all kinds, round, hewed, and sawed, unmanufactured, in whole or in part.'

The articles consisted of six hundred and sixteen cords of split white-ash timber, chiefly designed to be used in the manufacture of long shovel handles.

The main question was whether the said timber was liable to duty, or whether it was made free of duty by the Reciprocity Treaty.

Same counsel as in the United States v. Hathaway, just preceding.

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. Quimby


text: Talk:United States v. Quimby

title: Talk:United States v. Quimby


text:
United States v. Quimby/Opinion of the Court

The case falls within the construction of the treaty in the case of the United States v. Hathaway.

The article, we think, is chargeable with a duty of twenty per centum ad valorem, under the twenty-fourth section of the act of March 2d, 1861, which imposes this duty 'on all articles manufactured, in whole or in part,' not otherwise provided for.

The court answer the question, in the certificate of division of opinion,

IN THE AFFIRMATIVE.


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


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Gilman v. Lockwood

ERROR to the Circuit Court of the United States for the District of Wisconsin. The case was a submitted one.

''Mr. Carpenter, by brief, for the plaintiff in error. No opposite counsel''.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Gilman v. Lockwood


text: Talk:Gilman v. Lockwood

title: Talk:Gilman v. Lockwood


text:
Gilman v. Lockwood/Opinion of the Court

Amended plea of the defendant admitted, as the declaration alleged, that the plaintiff, when the note was made and delivered, was a citizen of the State of New York; and that the defendant was a citizen of the State of Wisconsin, where the note is dated and was executed. Action was assumpsit to recover the amount of a certain promissory note, described in the notice of claim annexed to the declaration. Defendant pleaded his discharge in insolvency from all his debts prior to the commencement of the action under the insolvent laws of the State where he resides, and where the contract was executed between the parties. Plaintiff demurred specially to the plea, and the defendant joined in demurrer.

First. That the plea tendered an immaterial issue.

Second. That the insolvent court exceeded its jurisdiction in attempting to determine the rights of the plaintiff under this contract, as he was a citizen of another State, and never became a party to the proceedings in insolvency.

Third. That the discharge in insolvency set up in defendant's plea is nugatory, because the insolvent law of the State as to the plaintiff is unconstitutional and void.

Circuit Court overruled the demurrer and rendered judgment for the defendant; whereupon the plaintiff sued out this writ of error and removed the cause into this court.

State legislatures may pass insolvent laws, provided there be no act of Congress establishing a uniform system of bankruptcy conflicting with their provisions, and provided that the law itself be so framed that it does not impair the obligation of contracts. Certificates of discharge, however, granted under such a law, cannot be pleaded in bar of an action brought by a citizen of another State in the courts of the United States, or of any other State than that where the discharge was obtained, unless it appear that the plaintiff proved his debt against the defendant's estate in insolvency, or in some manner became a party to the proceedings. Insolvent laws of one State cannot discharge the contracts of citizens of other States; because such laws have no extra territorial operation, and consequently the tribunal sitting under them, unless in cases where a citizen of such other State voluntarily becomes a party to the proceedings, has no jurisdiction of the case.

Unquestionably, the decision in those cases controls the present case, and renders further remarks upon the subject unnecessary. Demurrer should have been sustained.

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

title: Gilman v. Lockwood/Opinion of the Court


text: Talk:Gilman v. Lockwood/Opinion of the Court


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The Moses Taylor

A STATUTE of California, passed in 1851, and amended in 1860, provides that all steamers, vessels, and boats, shall be liable—

1st. For services rendered on board at the request of, or on contract with, their respective owners, masters, agents, or consignees.

2d. For supplies furnished for their use, at the request of their respective owners, masters, agents, or consignees.

3d. For materials furnished in their construction, repair, or equipment.

4th. For their wharfage and anchorage within the State.

5th. For non-performance or mal-performance of any contract for the transportation of persons or property made by their respective owners, masters, agents, or consignees.

6th. For injuries committed by them to persons or property.

And that the 'said several causes of action shall constitute liens upon all steamers, vessels, and boats, and have priority in their order, herein enumerated,' with preference over all other demands.

The statute also provides that actions for demands arising upon any of the grounds above specified, may be brought directly against such steamers, vessels, or boats; that the complaint shall designate the steamer, vessel, or boat by name; that the summons may be served on the master, mate, or any one having charge of the same; that the same may be attached as security for the satisfaction of any judgment that may be recovered; and that if the attachment be not discharged, and a judgment be recovered by the plaintiff, the steamer, vessel, or boat, may be sold by the sheriff, and the proceeds applied to the payment of the judgment.

With this statute in force, the steamship Moses Taylor, a vessel of over one thousand tons burden, was owned, in 1863, by Roberts, of the city of New York, and was employed by him in navigating the Pacific Ocean, and in carrying passengers and freight between Panama and San Francisco. In October of that year, one Hammons entered into a contract with Roberts, as owner of this steamship, by which, in consideration of $100, Roberts agreed to transport him from New York to San Francisco as a steerage passenger, with reasonable despatch, and to furnish him with proper and necessary food, water, and berths, or other conveniences for lodging, on the voyage. For alleged breach of this contract Hammons brought this action, a proceeding against the vessel, in a court of a justice of the peace within the city of San Francisco; such courts at that time having, by statute of California, jurisdiction of these cases where the amount claimed did not exceed $200, which it did not here. The breach alleged was that the plaintiff was detained at the Isthmus of Panama eight days; and that the provisions furnished him on the vessel were unwholesome, and that he was crowded into an unhealthy cabin, without sufficient room or air for either health or comfort, in consequence of the large number of steerage passengers, more than the vessel was allowed by law to have or could properly carry, to his damage, &c.

The agent of the vessel filed an answer in which he denied the allegations of the complaint, and asserted that the court had no jurisdiction; because the cause of action, as against the said vessel, was one of which the courts of admiralty had exclusive jurisdiction; for that the vessel was used exclusively in navigating the high seas, and that the said cause of action, if any, arose on the high seas.

The justice decided that he had jurisdiction, and gave judgment for the $200 claimed. The case was then taken to the County Court, where the objection to the jurisdiction was again made and again overruled. The court found as fact that Hammons had been carried on the steamer Illinois from New York to Aspinwall, thence, after the delay alleged, on railway across the Isthmus to Panama, and from there on the Moses Taylor to San Francisco; and, in substance, that the other facts alleged were as stated in the complaint. Whereupon, final judgment was entered in accordance with the decision, and from that judgment the defendant, owner of the vessel, brought this writ of error.

Messrs. W. M. Evarts and Edwards Pierrepont for the plaintiff in error:

I. An agreement to transport a man or a horse over the ocean is a 'maritime contract,' and comes under the admiralty and maritime jurisdiction.

It cannot be doubted that Hammons could have proceeded against the steamer in rem in the District Court of the United States, for the cause of action against the steamer set forth in the complaint.

II. The proceeding in this case is not according to the common law, but with every trait and incident of a suit in admiralty, in rem. The vessel is arrested and impleaded as the reus or defendant.

III. The admiralty jurisdiction of the Federal courts is exclusive, and any intrusion of a State court within such admiralty jurisdiction is unconstitutional.

The first section of the third article of the Constitution of the United States, is as follows:

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

And the first clause of the second section of the same article is in these words:

'The judicial power shall extend ..... to all cases of admiralty and maritime jurisdiction.'

The ninth section of the Judiciary Act of 1789 declares that 'The District Courts shall have, exclusively of the courts of the several States, ..... cognizance of all civil causes of admiralty and maritime jurisdiction; ..... saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.'

This exclusive jurisdiction has for seventy years been the settled law; and has been repeatedly affirmed by the courts.

In Martin v. Hunter, this court says:

'It is manifest that the judicial power of the United States is, unavoidably, in some cases, exclusive of all State authority, and in all others may be made so at the election of Congress. No part of the criminal jurisdiction of the United States can, consistently with the Constitution, be delegated to State tribunals. The admiralty and maritime jurisdiction is of the same exclusive cognizance.'

In Cohen v. Virginia, it was conceded that the Federal courts had the 'exclusive admiralty and maritime jurisdiction.'

In Martin v. Hunter, Mr. Justice Johnson says:

'With regard to admiralty and maritime jurisdiction, it would be difficult to prove that the States could resume it, if the United States should abolish the courts vested with that jurisdiction.'

An affirmation of this exclusive jurisdiction will be found in the opinion of Chief Justice Marshall, in Slocum v. Mayberry; and of Story, J., in Gelston v. Hoyt; and of Justices Wayne and Catron, in Waring v. Clarke, all cases in this court.

title: The Moses Taylor


text: Talk:The Moses Taylor

title: Talk:The Moses Taylor


text:
The Moses Taylor/Opinion of the Court

Of the validity of the clause in the ninth section of the Judiciary Act, which attributes exclusive admiralty jurisdiction to the District Courts of the United States, no serious question has ever been made, until the Supreme Court of California claimed for the State full admiralty jurisdiction.

But this claim was but an incident of the more extravagant pretensions of the same court to entire judicial, and, indeed, political independence of the State of California; pretensions subsequently abandoned by that court.

The case of Warner v. The Uncle Sam, places the concurrence of admiralty jurisdiction upon more temperate grounds; but its reasoning, upon examination, will be found fatal to its conclusion.

IV. It must be deemed a settled point, in constitutional law, that the whole grant of judicial power may become an exclusive jurisdiction in the courts of the United States, at the election and in the discretion of Congress.

The whole frame of the Judiciary Act, in its attribution of jurisdiction of the various Federal courts, recognizes and is shaped upon this idea.

Messrs. M. H. Edmonds, O. L. Lane, and W. W. Cope, contra, for the defendant in error:

1st. That this is not a case of admiralty or maritime jurisdiction.

2d. That the grant of such jurisdiction to the Federal courts, contained in the Constitution, is not exclusive.

3d. That these proceedings in the State court fall within the exception contained in the Judiciary Act of 1789, saving to suitors a common law remedy in all cases where the common law is competent to give it.

I. In admiralty, a vessel is not liable for torts, or breaches of contract in which it is in no way instrumental. And courts of admiralty do not take cognizance of torts committed on land. Nor is a contract for the transportation of passengers, made on land, to be performed partly on land and partly by water, as in this case, a 'maritime contract.' It may be urged that the substantial portion of the voyage was on the sea; for, while the admiralty jurisdiction was confined to tide-water, it was held to be sufficient if the substantial portion of the voyage was within the ebb and flow of the tide, though its commencement or termination might be beyond. But in those cases the entire voyage was by water, and made in one vessel. The contract in this case is an entirety, to carry from New York to San Francisco, requiring for its fulfilment two steamers and a railway. The land carriage is a substantial part of the voyage. It obviates the necessity of a long and tedious voyage by water, and gives to that route its chief value. It is of no consequence whether the land transit between the two oceans be long or short. The court will not determine the question of jurisdiction, by a comparison of the distances by land and by water. If this contract is of admiralty cognizance, so is an agreement for the transportation of passengers from Liverpool to San Francisco, via New York, Chicago, and Salt Lake. There is no difference in principle between the two cases. In both, the voyage by water forms a substantial part of the contract, and so does that by land.

If a passenger contract is of admiralty cognizance at all, it is because it comes substantially within the definition of an affreightment. But affreightments relate exclusively to voyages by water. And it was conceded by Nelson, J., in the case just cited, that a contract 'must be wholly of admiralty cognizance, or else it is not at all within it.' He also expressly admits the correctness of the argument for the claimant, that 'it is not enough that the contract includes an obligation, or some obligation of a maritime nature; but that it must, as an entirety in all its material and substantial parts, be for the performance of maritime services, or else the case is wholly without the limits of the admiralty jurisdiction.' Assuming this to be the law, the agreement, in this case, is not as an entirety, a maritime contract.

Again, in a proceeding ex contractu, in the admiralty, there must not only be a maritime contract, but also a maritime cause of action. In other words, the ship must be bound for the performance of the contract, otherwise no cause of action in rem can exist. It cannot be contended that the Moses Taylor was bound for the performance of an entire contract, according to the principles of admiralty and maritime law. It was only by force of the statute that she could have been held liable-at least for the breaches occurring on the Isthmus, inasmuch as she does not appear to have been the instrumental cause of the detention. And this court can presume no fact necessary to sustain the admiralty jurisdiction.

II. The validity of State laws of the character of the statute of California has been expressly adjudicated in numerous cases. And this court virtually concedes their validity: First, by basing thereon a portion of the admiralty jurisdiction of the District Courts; and, subsequently, by amending the twelfth rule in admiralty, so as to retain jurisdiction in personam, but leaving the enforcement of the lien in rem to the State courts. No case has ever arisen calling for the determination of the question by this court. Martin v. Hunter, and Cohen v. Virginia, cited on the other side, were upon the question, whether a writ of error would lie to a State court? And in Slocum Mayberry, the question was not raised by the defendant in error. The judgment of the State court was affirmed, on the ground that the Embargo Act did not authorize the seizure of the cargo, and that replevin would lie for it in the State court.

In Gelston v. Hoyt, the only question presented was the legality of the ruling of the State court rejecting evidence of forfeiture, on the ground that the judgment of the United States court was conclusive on that question. And the ruling of the State court was affirmed. Waring v. Clarke is not in point. In that, and in most of the cases where the question of admiralty jurisdiction has been discussed, the question was, whether it extended to such a case, not whether it was exclusively vested in the District Courts.

It is not denied that dicta may be found asserting or assuming such exclusive jurisdiction. But there is no case in which that question has been adjudged.

As an original question, it is submitted that it has no foundation in principle. The origin of all the misunderstanding on the subject lies in the Judiciary Act. Congress, throughout that act, legislated upon the supposition, that whatever jurisdiction was by the Constitution vested in the Federal courts might be made exclusive. And judges and commentators have not always been sufficiently alive to the distinction between an act of Congress and a constitutional grant; and have assumed the jurisdiction to be exclusive without inquiry, because Congress declared it so. And because the language of the Judiciary Act raised a doubt of the jurisdiction of the State tribunals, suitors have usually sought redress in the District Courts, whose jurisdiction was unquestioned; and hence has arisen a sort of negative acquiescence in a doctrine often asserted, but never demonstrated nor decided; not such a general acquiescence, however, as counsel for the plaintiff in error seems to believe. The cases already cited, and many others asserting the validity of State laws, like the present, are sufficient to rebut any presumption of acquiescence. It is also well known that most of the States bordering on navigable waters have similar laws, and that the courts of such States have hitherto exercised almost unquestioned jurisdiction under such laws, by proceedings in rem.

The determination of this important question must, after all, depend upon the true construction to be given to the Constitution.

Among the most approved rules of interpretation to determine the exclusiveness of Federal authority, are the following: 1. Where the grant is exclusive in its terms. 2. Where the power is prohibited to the States. 3. Where there is a direct repugnancy, or incompatibility, in its exercise by the States.

'In all other cases,' says Story, J., in Houston v. Moore, 'a reasonable interpretation of that instrument necessarily leads to the conclusion, that the powers so granted are never exclusive of similar power existing in the States.'

It is not to be denied that Judge Story was disposed to concede to the admiralty courts their full measure of jurisdiction. He frequently speaks of it as exclusive, not because made so in terms, nor because it is prohibited to the States, but on account of a supposed repugnancy, or incompatibility, in its exercise by the States.

Houston v. Moore decided that the act of the State of Pennsylvania providing for the trial by a State court-martial, of certain military offences, was not repugnant to the Constitution and laws of the United States. No other question was raised or determined, but the learned justice, who dissented from the opinion of the court, mentions the exclusiveness of admiralty jurisdiction, incidentally, by way of argument, citing Martin v. Hunter, in which the opinion was delivered by himself, and in which he says:

'It is manifest that the judicial power of the United States is unavoidably, in some cases, exclusive of all State authority; and in all others may be made so at the election of Congress. . . .. The admiralty and maritime jurisdiction is of the same exclusive cognizance; and it can only be in those cases, where previous to the Constitution, State tribunals possessed jurisdiction independent of national authority, that they can now constitutionally exercise concurrent jurisdiction.'Misled by this case, Chancellor Kent expressed the opinion in his Commentaries, that 'whatever admiralty and maritime jurisdiction the District Courts possess, would seem to be exclusive.' His attention thus aroused, Mr. Justice Story noticed the 'mistake,' as he terms it, in a note to section 1762, of his Commentaries on the Constitution. He there rejects the discretionary power of Congress, as well as the exclusive jurisdiction of the admiralty, and says:

'There is nothing in the Constitution necessarily leading to the conclusion that the jurisdiction was intended to be exclusive, and there is as little ground upon general reason, to contend for it.'

Chancellor Kent, in acknowledging the correction, charged his error upon Story, J., himself, or rather upon the case of Martin v. Hunter, as above stated, and concludes by saying:

'But we are taught by the note in the Commentaries referred to, that the State courts have all the concurrent cognizance which they had originally, in 1787, over maritime contracts, and that this concurrent jurisdiction does not depend, as declared in 1 Wheaton, 337, on the pleasure of Congress, but is founded on the 'reasonable interpretation of the Constitution."

Again, the Federalist shows that the grant of jurisdiction to the Federal courts was not intended to be exclusive; and at all events that 'the State courts would be divested of no part of their primitive jurisdiction, further than may relate to an appeal.'

It may, therefore, be considered as established—

1. That the grant of admiralty and maritime jurisdiction in the Constitution, is not exclusive in its terms.

2. That it is not prohibited to the State courts.

3. That if intended to be exclusive, such intention must be found in some repugnancy or incompatibility in the exercise of like powers by the State tribunals.

4. That if not intended to be exclusive, Congress cannot make it so, if the result would be to divest the State courts of any part of their primitive jurisdiction.

It is well known that at the time of the adoption of the Constitution, whatever admiralty jurisdiction existed in this country, was exercised by the State courts, with the exception of piracies and felonies on the high seas and appeals in cases of capture. Before the Revolution each colony had its court of admiralty. During the Revolution and up to the adoption of the Constitution, this jurisdiction was vested in and exercised by the States respectively, subject to the power of Congress as contained in the Articles of Confederation, to establish courts for receiving and determining finally appeals in all cases of capture, and courts for the trial of piracies and felonies committed on the high seas.

At that time then 'admiralty and maritime cases' as clearly belonged to the State courts as those of chancery and common law. They belonged to the State courts independently of the Articles of Confederation, and did not in any manner 'grow out of' the Constitution itself. When therefore by the provisions of that instrument, cognizance of such cases was granted to the Federal courts without words of exclusion, the principle of exclusion must be found, if found at all, in the incompatibility of the exercise of like powers concurrently by the State and Federal courts. If not found there, it is not contained in the Constitution. And what the Constitution permits in this regard, either expressly or by implication and reasonable inference, Congress cannot prohibit.

Now let us examine this question of incompatibility. The rule, as stated by Story, in his Commentaries on the Constitution, is this:

'The power is exclusive in the National Government where an authority is granted to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant. The principal difficulty lies not so much in the rule, as in its application to particular cases. But unless from the nature of the power, or from the obvious results of its operations, a repugnancy must exist, so as to lead to a necessary conclusion, that the power was intended to be exclusive, the true rule of interpretation is, that the power is merely concurrent.'

This repugnancy therefore may exist either in the nature of the power, or its practical operations. That conflicts may arise in the exercise of acknowledged concurrent powers is conceded.

In such cases the Constitution provides the remedy in the declared supremacy of the Constitution and laws of the Union, and the supervisory control of the Supreme Court. In the exercise of concurrent judicial powers, courts have also adopted a rule of judicial comity eminently calculated to prevent such conflicts. It is, that the court which first obtains possession or custody of the thing by attachment or proceeding in rem, shall retain it. Such was the case of the Robert Fulton. That was a case of admiralty cognizance. And the libel was dismissed because an attachment under the Boat and Vessel Act of the State, had previously been levied on the vessel, and she was in the custody of the sheriff when the libel was filed.

The following are given as samples of concurrent powers: The power to lay taxes, though expressly given to Congress. So by the Constitution Congress has the power to lay and collect duties, imposts, and excises which 'shall be uniform throughout the United States.' But the license laws of Massachusetts, Rhode Island, and New Hampshire, forbidding the sale of spirituous liquors, in less than certain large quantities, were held not to be repugnant to this clause, nor to that regulating commerce.

So the States are not deprived of the power of regulating pilots, when such regulation does not interfere with the acts of Congress. So the power granted to Congress to establish uniform laws on the subject of bankruptcies does not deprive the States of the power to pass bankrupt laws. So offences against the military laws of the United States by persons called into the service of the United States, may be tried by State courts-martial, where the act of Congress does not expressly vest exclusive jurisdiction in the courts-martial thereby authorized.

So the State courts have unquestioned concurrent cognizance of nearly all the cases mentioned in the third article of the second section of the Constitution.

Cases affecting ambassadors, &c., are of exclusive Federal cognizance, and rightfully, because they grow out of the Constitution itself. Most of the other enumerated cases do not, and are, therefore, properly left by the Judiciary Act where the Constitution left them,-to the cognizance of the State and Federal courts concurrently. It is not easy to conceive what practical difficulties could arise in the exercise of concurrent admiralty powers, greater than have occurred in other cases and been surmounted.

To sustain the third proposition, we cite the cases under the second head, declaring and conceding the validity of these local laws.

Mr. Justice FIELD delivered the opinion of the court.

This case arises upon certain provisions of a statute of California regulating proceedings in civil cases in the courts of that State. The sixth chapter of the statute relates to actions against steamers, vessels, and boats, and provides that they shall be liable-1st, for services rendered on board of them, at the request of, or on contract with, their respective owners, agents, masters, or consignees; 2d, for supplies furnished for their use upon the like request; 3d, for materials furnished in their construction, repair, or equipment; 4th, for their wharfage and anchorage within the State; 5th, for non-performance or mal-performance of any contract for the transportation of persons or property made by their respective spective owners, agents, masters, or consignees; 6th, for injuries committed by them to persons or property; and declares that these several causes of action shall constitute liens upon the steamers, vessels, and boats, for one year after the causes of action shall have accrued, and have priority in the order enumerated, and preference over all other demands. The statute also provides that actions for demands arising upon any of these grounds may be brought directly against the steamers, vessels, or boats by name; that process may be served on the master, mate, or any person having charge of the same; that they may be attached as security for the satisfaction of any judgment which may be recovered; and that if the attachment be not discharged, and a judgment be recovered by the plaintiff, they may be sold, with their tackle, apparel, and furniture, or such interest therein as may be necessary, and the proceeds applied to the payment of the judgment.

These provisions, with the exception of the clause designating the order of priority in the liens, and their preference over other demands, were enacted in 1851; that clause was inserted by an amendment in 1860.

In 1863, the steamship Moses Taylor, a vessel of over one thousand tons burden, was owned by Marshall O. Roberts, of the city of New York, and was employed by him in navigating the Pacific Ocean, and in carrying passengers and freight between Panama and San Francisco. In October of that year the plaintiff in the court below, the defendant in error in this court, entered into a contract with Roberts, as owner of this steamship, by which, in consideration of one hundred dollars, Roberts agreed to transport him from New York to San Francisco as a steerage passenger, with reasonable despatch, and to furnish him with proper and necessary food, water, and berths, or other conveniences for lodging, on the voyage. The contract, as set forth in the complaint, does not in terms provide for transportation on any portion of the voyage by the Moses Taylor, but the case was tried upon the supposition that such was the fact, and we shall, therefore, treat the contract as if it specified a transportation by that steamer on the Pacific for the distance between Panama and San Francisco. For alleged breach of this contract the present action was brought, under the statute mentioned, in a court of a justice of the peace held within the city of San Francisco. Courts held by justices of the peace were at that time by another statute invested with jurisdiction of these cases, where the amount claimed did not exceed two hundred dollars, except where the action was brought to recover seamen's wages for a voyage performed, in whole or in part, without the waters of the State.

The agent for the Moses Taylor appeared to the action, and denied the jurisdiction of the court, insisting that the cause of action was one over which the courts of admiralty had exclusive jurisdiction, and also traversed the several matters alleged as breaches of the contract.

The justice of the peace overruled the objection to his jurisdiction, and gave judgment for the amount claimed. On appeal to the County Court the action was tried de novo upon the same pleadings, but in all respects as if originally commenced in that court. The want of jurisdiction there, and the exclusive cognizance of such causes of action by the courts of admiralty were again urged and were again overruled; and a similar judgment to that of the justice of the peace was rendered. The amount of the judgment was too small to enable the owner of the steamer to take the case by appeal to the Supreme Court of the State. That court has no appellate jurisdiction in cases where the demand in dispute, exclusive of interest, is under three hundred dollars, unless it involve the legality of a tax, impost, assessment, toll, or municipal fine. The decision of the County Court was the decision of the highest court in the State which had jurisdiction of the matter in controversy. From that court, therefore, the case is brought here by writ of error.

The case presented is clearly one within the admiralty and maritime jurisdiction of the Federal courts. The contract for the transportation of the plaintiff was a maritime contract. As stated in the complaint, it related exclusively to a service to be performed on the high seas, and pertained solely to the business of commerce and navigation. There is no distinction in principle between a contract of this character and a contract for the transportation of merchandise. The same liability attaches upon their execution both to the owner and the ship. The passage-money in the one case is equivalent to the freigh-money in the other. A breach of either contract is the appropriate subject of admiralty jurisdiction.

The action against the stemaer by name, authorized by the statute of California, is a proceeding in the nature and with the incidents of a suit in admiralty. The distinguishing and characteristic feature of such suit is that the vessel or thing proceeded against is itself seized and impleaded as the defendant, and is judged and sentenced accordingly. It is this dominion of the suit in admiralty over the vessel or thing itself which gives to the title made under its decrees validity against all the world. By the common law process, whether of mesne attachment or execution, property is reached only through a personal defendant, and then only to the extent of his title. Under a sale, therefore, upon a judgment in a common law proceeding the title acquired can never be better than that possessed by the personal defendant. It is his title, and not the property itself, which is sold.

The statute of California, to the extent in which it authorizes actions in rem against vessels for causes of action cognizable in the admiralty, invests her courts with admiralty jurisdiction, and so the Supreme Court of that State has decided in several cases. In Averill v. The Steamer Harford, the court thus held, and added that 'the proceedings in such actions must be governed by the principles and forms of admiralty courts, except where otherwise controlled or directed by the act.'

This jurisdiction of the courts of California was asserted and is maintained upon the assumed ground that the cognizance by the Federal courts 'of civil causes of admiralty and maritime jurisdiction' is not exclusive, as declared by the ninth section of the Judiciary Act of 1789.

The question presented for our determination is, therefore, whether such cognizance by the Federal courts is exclusive, and this depends either upon the constitutional grant of judicial power, or the validity of the provision of the ninth section of the act of Congress.

The Constitution declares that the judicial power of the United States 'shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State or the citizens thereof and foreign States, citizens, or subjects.'

How far this judicial power is exclusive, or may, by the legislation of Congress, be made exclusive, in the courts of the United States, has been much discussed, though there has been no direct adjudication upon the point. In the opinion delivered in the case of Martin v. Hunter's Lessee, Mr. Justice Story comments upon the fact that there are two classes of cases enumerated in the clause cited, between which a distinction is drawn; that the first class includes cases arising under the Constitution, laws, and treaties of the United States, cases affecting ambassadors, other public ministers, and consuls, and cases of admiralty and maritime jurisdiction; and that, with reference to this class, the expression is that the judicial power shall extend to all cases; but that in the subsequent part of the clause, which embraces all the other cases of national cognizance, and forms the second class, the word 'all' is dropped. And the learned justice appears to have thought the variation in the language the result of some determinate reason, and suggests that, with respect to the first class, it may have been the intention of the framers of the Constitution imperatively to extend the judicial power either in an original or appellate form to all cases, and, with respect to the latter class, to leave it to Congress to qualify the jurisdiction in such manner as public policy might dictate. Many cogent reasons and various considerations of public policy are stated in support of this suggestion. The vital importance of all the cases enumerated in the first class to the national sovereignty is mentioned as a reason which may have warranted the distinction, and which would seem to require that they should be vested exclusively in the national courts,-a consideration which does not apply, at least with equal force, to cases of the second class. Without, however, placing implicit reliance upon the distinction stated, the learned justice observes, in conclusion, that it is manifest that the judicial power of the United States is in some cases unavoidably exclusive of all State authority, and that in all others it may be made so at the election of Congress. We agree fully with this conclusion. The legislation of Congress has proceeded upon this supposition. The Judiciary Act of 1789, in its distribution of jurisdiction to the several Federal courts, recognizes and is framed upon the theory that in all cases to which the judicial power of the United States extends, Congress may rightfully vest exclusive jurisdiction in the Federal courts. It declares that in some cases, from their commencement, such jurisdiction shall be exclusive; in other cases it determines at what stage of procedure such jurisdiction shall attach, and how long and how far concurrent jurisdiction of the State courts shall be permitted. Thus, cases in which the United States are parties, civil causes of admiralty and maritime jurisdiction, and cases against consuls and vice-consuls, except for certain offences, are placed, from their commencement, exclusively under the cognizance of the Federal courts.

On the other hand, some cases, in which an alien or a citizen of another State is made a party, may be brought either in a Federal or a State court, at the option of the plaintiff; and if brought in the State court may be prosecuted until the appearance of the defendant, and then, at his option, may be suffered to remain there, or may be transferred to the jurisdiction of the Federal courts.

Other cases, not included under these heads, but involving questions under the Constitution, laws, treaties, or authority of the United States, are only drawn within the control of the Federal courts upon appeal or writ of error, after final judgment.

By subsequent legislation of Congress, and particularly by the legislation of the last four years, many of the cases, which by the Judiciary Act could only come under the cognizance of the Federal courts after final judgment in the State courts, may be withdrawn from the concurrent jurisdiction of the latter courts at earlier stages, upon the application of the defendant.

The constitutionality of these provisions cannot be seriously questioned, and is of frequent recognition by both State and Federal courts.

The cognizance of civil causes of admiralty and maritime jurisdiction vested in the District Courts by the ninth section of the Judiciary Act, may be supported upon like considerations. It has been made exclusive by Congress, and that is sufficient, even if we should admit that in the absence of its legislation the State courts might have taken cognizance of these causes. But there are many weighty reasons why it was so declared. 'The admiralty jurisdiction,' says Mr. Justice Story, 'naturally connects itself, on the one hand, with our diplomatic relations and the duties to foreign nations and their subjects; and, on the other hand, with the great interests of navigation and commerce, foreign and domestic. There is, then, a peculiar wisdom in giving to the national government a jurisdiction of this sort which cannot be yielded, except for the general good, and which multiplies the securities for the public peace abroad, and gives to commerce and navigation the most encouraging support at home.'

The case before us is not within the saving clause of the ninth section. That clause only saves to suitors 'the right of a common-law remedy, where the common law is competent to give it.' It is not a remedy in the common-law courts which is saved, but a common-law remedy. A proceeding in rem, as used in the admiralty courts, is not a remedy afforded by the common law; it is a proceeding under the civil law. When used in the common-law courts, it is given by statute.

It follows, from the views expressed, that the judgment of the County Court must be reversed, and the cause remanded, with directions to dismiss the action for want of jurisdiction.

AND IT IS SO ORDERED.

title: The Moses Taylor/Opinion of the Court


text: Talk:The Moses Taylor/Opinion of the Court


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Semple v. Hagar

SEMPLE filed a bill against Hagar in one of the State courts of California. The bill alleged that he, the complainant Semple, had obtained a patent from the United States for a tract of land, based upon a Mexican grant for the same land, known as the 'Colus' grant; that the land so granted had been surveyed by the United States, and included certain lands enumerated; that the defendants claimed part of the same land under a Mexican grant known as the 'Jimeno' grant, for which a patent had also been issued by the United States to the defendants; that the surveys of the said grants overlapped; that the grant of the 'Jimeno' tract had been obtained by fraud and was a cloud on the complainant's title. The prayer of the bill was that the court might declare 'the said fraudulent grant, commonly called the 'Jimeno Rancho,' void, and of no effect, as issued upon false suggestions, and without authority of law.'

The defendant demurred to this bill, setting forth nine several grounds of demurrer, and among them these:

1st. That the court had no jurisdiction of the subject of the action.

2d. That there was a defect of parties plaintiff.

3d. That there was a defect of parties defendant.

The court below made a decree dismissing the billg; a decree which on appeal the Supreme Court of California, the highest court of equity of the State, affirmed.

The case was then brought here as being within the twenty-fifth section of the Judiciary Act, which enacts that the final decree in the highest court of law or equity of a State, &c., where there is drawn in question the validity of an authority exercised under the United States and the decision is against the validity, or drawn in question the construction of any clause of a statute of commission held under the United States, and the decision is against the title specially set up by either party under such statute or commission, may be reviewed in this court.

Mr. Wills, for the defendant in error, now, and in advance of the case being regularly called, moved-the record being a short one, and of but ten pages-to dismiss the writ of error for want of jurisdiction. He thus argued:

1. The State courts of California had no jurisdiction of the subject of the action. This court has held, in Field v. Seabury, that the question of the validity of a patent for land is 'a question exclusively between the sovereignty making the grant and the grantee.' The courts of California, carrying out this doctrine, have held, that 'a patent imports absolute verity, and that it can only be vacated and set aside by direct proceedings instituted by the government, or by parties acting in the name and by the authority of the government.'

2. It has been decided by the court, in Moreland v. Page, that this court has not jurisdiction, under the twenty-fifth section of the Judiciary Act, to review the judgment of a State court, when the question involved relates to the proper boundary between two tracts of land, although the owners of both had valid grants from the United States.

Mr. Reverdy Johnson, for the plaintiff in error, contra, argued in support of the jurisdiction; contending, also, that the question, whether the jurisdiction did or did not exist, was one which the court would not settle in this preliminary way; that the question could not be settled without a thorough examination of the record; and that this could not be made until the case came up in regular order; that then, when the court would understand the whole matter, it could better decide the delicate matter of jurisdiction.

Mr. Justice GRIER delivered the opinion of the court.

title: Semple v. Hagar


text: Talk:Semple v. Hagar

title: Talk:Semple v. Hagar


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Semple v. Hagar/Opinion of the Court

In all cases of a motion to dismiss the writ of error for want of jurisdiction, the court must necessarily examine the record to find the questions decided by the State court. But in many cases the question of jurisdiction is so involved with the other questions decided in the case, that this court cannot eliminate it without the examination of a voluminous record, and passing on the whole merits of the case. In such instances, the court will reserve the question of jurisdiction till the case is heard on the final argument on the merits.

In the case before us, the want of jurisdiction is patent; it requires no investigation of a long bill of exceptions. It was not decided by the court below on its merits, if it had any. It furnishes no reason for a postponement of our decision of the question.

If, in such cases, the court would postpone the consideration of the question of jurisdiction, we would put it in the power of every litigant in a State court to obtain a stay of execution for three years, or more, by a frivolous pretence that it comes within the provisions of the twenty-fifth section of the Judiciary Act. In many States, all the land titles originated in patents from the United States; and if every question of boundary, of descent, of construction of wills, of contracts, &c., and which may arise in State courts, may be grought here on the mere suggestion that the party, against whom the State court gave their judgment, derived title under a patent from the United States, we should enlarge our jurisdiction to thousands of cases, and increase, unnecessarily, the burdens of this court, with no corresponding benefit to the litigant. It is plain that, in such cases, there is not 'drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States.'

We have here a very brief record, and, on the facts of the case, we cannot shut our eyes to the total want of jurisdiction, under the twenty-fifth section, or any other section of the Judiciary Act.

It is plain, that if the court had assumed jurisdiction, and had declared the defendant's patent void, for the reason alleged in the bill, the defendant would have had a case which might have been reviewed by this court, under the twenty-fifth section, and one on which there might have been a question and difference of opinion. But it is hard to perceive how the twenty-fifth section could apply to a judgment of a State court, which did NOT decide that question, and refused to take jurisdiction of the case. The matter is too plain for argument.

MOTION GRANTED.

title: Semple v. Hagar/Opinion of the Court


text: Talk:Semple v. Hagar/Opinion of the Court


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Supervisors v. United States (71 U.S. 435)

ERROR to the Circuit Court of the United States for the Northern District of Illinois, the case being thus:

A statute of Illinois, of February 16th, 1863, enacts as follows:

'The board of supervisors under township organization, in such counties as may be owing debts which their current revenue, under existing laws, is not sufficient to pay, may, if deemed advisable, levy a special tax, not to exceed in any one year one per cent. upon the taxable property of any such county, to be assessed and collected in the same manner and at the same time and rate of compensation as other county taxes, and when collected to be kept as a separate fund, in the county treasury, and to be expended under the direction of the said county court of board of supervisors, as the case may be, in liquidation of such indebtedness.'

With this statute in force, the State Bank, relator in the case, was the holder of certain coupon bonds of the County of Rock Island, originally issued and negotiated in payment of stock of the Warsaw and Rockford Railroad Company, for which the county had subscribed. They were issued pursuant to law.

The coupons representing the interest for one year were paid by the county; the necessary tax having been levied and collected for that purpose. Subsequent payments, however, were not made, and at the March Term, 1863, the relator recovered a judgment in the court below, upon coupons overdue and unpaid, for $2554, and costs. Nothing was paid upon it, and there was no money in the county treasury which could be so applied.

The relator subsequently requested the supervisors to collect the requisite amount by taxation, and to give him an order on the county treasury for payment. They declined to do either.

He then applied to the court below for a mandamus, compelling the supervisors, at their next regular meeting, to levy a tax of sufficient amount to be applied to pay the judgment, interest, and costs, and when collected to apply it accordingly. An alternative writ was issued.

The supervisors made a return, wherein numerous objections were taken to the issuing of a mandatory writ. Among them were:

1. That the court below, in rendering judgment, had allowed interest on the coupons, from the day they became due.

2. That the respondent had no power to pay the judgment except by issuing an order on the treasurer of Rock Island County; the ground of this objection being a statute of Illinois, which enacts, that when a judgment is rendered against a county, no execution shall issue, byt that the county commissioners' court shall draw a warrant upon the treasurer for the amount, 'which shall be paid as other county debts.'

3. In substance, that the respondent had levied and collected the regular county taxes, and that the same had all been needed and used for the ordinary current expenses of the county.

The court below disallowed the return, and ordered that a peremptory writ should issue, commanding the respondents, at their next meeting for levying taxes, to levy a tax of not more than one hundred cents on each one hundred dollars' worth of taxable property in the county, but of sufficient amount fully to pay the judgment, interest, and costs; and that they set the same apart as a special fund for that purpose; and that they pay it over without unnecessary delay to the relator.

The main question here in the case was whether, under the act of February 16th, 1863, the respondents were compellable to levy and collect, by taxation, the amount specified in the order of the court below; that is to say, in other words, whether that expression of the statute, 'may, if deemed advisable,' was permissive merely, or, under the circumstances of this case, obligatory.

The case was submitted on briefs.

Mr. Cook, for the Supervisors, plaintiffs in error:

I. Under the law, as settled in Illinois, counties cannot be required to pay interest in any case, unless they specially contracted to pay it.

II. Under the statutes of Illinois, there is but one mode in which payment of a judgment against a county can be coerced, and that is by obtaining a county order from the county authorities upon the county treasurer. A statute provides this way, and provides none other. Necessarily, therefore, it is the only mode in which a judgment can be proceeded in.

III. The statute of February 16th, 1863, says the board of supervisors 'may, if deemed advisable, levy a special tax.'

If not deemed advisable, the tax is not to be levied, because these words cannot be rejected, and while they remain there is no room for construction.

If the statute had simply said, 'may levy a tax,' it might then well be argued, that in cases where the interests of a third party were concerned the court would construe may to mean shall, and would enforce the levy. But it is not so here. They may, upon a condition, and that condition is, that the board and none other shall deem it advisable. This statute does not repeal any other, but is in addition-it is cumulative.

Suppose the statute had read, 'shall, if deemed advisable,' certainly its effect would not be in the least changed; because it would still be necessary that the plaintiff deem it advisable before it should levy.

If the words 'may, if deemed advisable,' vest discretion in the plaintiff, then it cannot be controlled by the court. If they vest the discretion in the court to determine when it is advisable to levy a tax, then the board of supervisors could not, in any case, levy a tax under that statute, unless the court had first found it advisable and issued its mandate to that effect direction it to be done.

A statute ought to be so construed that no clause, sentence, or word shall be superfuous, void, or insignificant.

In The King v. The Mayor, Holroyd, J., observes: 'By the charter, the mayor and aldermen are to elect such and so many free burgesses as they shall think fit. It is not competent, therefore, to the court to grant a mandamus directing them to elect any.'

In The Commonwealth v. The County Commissioners, the first section of an act made it the duty of the assessors to receive from parents the names of children residing in their townships, and whose parents were unable to pay for their schooling, &c. The second section directed the assessor to send the list to the teachers of schools within his township &c., 'whose duty it shall be to teach all such children as may come to their schools, in the same manner as other children shall be taught. It required the teachers to keep a day-book and to enter in it the number of days each child should be taught, and the amount of stationery furnished for the use of the child, 'from which book he shall make out his account against the county on oath or affirmation, agreeably to the usual rates of charging for tuition in such schools; which account, after being so examined or revised, he shall present to the county commissioners, who, if they approve thereof, shall draw their order on the county treasurer for the amount, which he is hereby directed to pay out of any moneys in the treasury.'

Upon a motion for mandamus against the commissioners, the court says:

'The law has vested the commissioners with the power of approving or disapproving of the account, and we cannot take it away from them.'

The mandamus was refused.

In The People v. Supervisors of Albany, a leading case, a statute directed supervisors to allow a constable for certain services 'so much money as the supervisors shall judge he reasonably deserves to have.'

On motion for mandamus, to allow a certain sum claimed, the court says:

'In the present case, whatever may be thought of the reasonableness of the allowance of the supervisors to the applicant, he has no legal right to any particular sum. He has no right to any money for the services performed but such as the supervisors shall in their discretion judge him entitled to. Should we grant a peremptory mandamus what would be its command? Certainly not to allow and specific sum. That would be taking upon ourselves a discretion which the legislature have vested in the supervisors; we could only command them to examine the applicant's account, and, in the words of the statute, allow him for his services such sum as they shall judge he reasonably deserves to have; and this has been already done. Where a discretionary power is vested in officers, and they have exercised that discretion, this court ought not to interfere, because they cannot control, and ought not to coerce that discretion. This may be a hard case, and the pary may be remediless; but that consideration cannot induce us to grant an unfit, and, as I believe, a nugatory remedy.'

In a note to Johnson's Cases, the subject is very fully treated, and the authorities cited. It is said:

'The writ of mandamus will not lie to control the discretion of an inferior officer, for otherwise superior tribunals would draw to themselves all matters of judgment, and officers would in reality have none at all.

'Whenever a discretionary power is vested in officers, and that discretion has been exercised, the court ought not to interfere, because they cannot control and ought not to coerce that discretion.

'The writ of mandamus will lie to corporations, as to inferior tribunals and officers, to compel them to exercise their discretion, though not to direct the manner of its exercise.'

In United States v. Seaman, in this court, Taney, C. J., giving the opinion of the court, says:


text: Talk:Supervisors v. United States (71 U.S. 435)


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Supervisors v. United States (71 U.S. 435)/Opinion of the Court

'The rule to be gathered from all these cases is too well settled to need further discussion. The mandamus cannot issue in a case where discretion and judgment are to be exercised by the officer.'

Similar principles were declared in United States v. Guthrie.

In the case at bar it will be observed that the relator demanded the levy of the tax, and that the board of supervisors, plaintiffs in error, refused to make it.

It thus appears that the board has exercised the discretion vested in it by the law of February 16th, 1863, and deemed it unadvisable to levy the tax to pay the defendant's debt.

I. This being a mandamus to collect a judgment, any error in the judgment to collect which it is brought, only comes collaterally in question, and therefore the question is not before this court.

II. As to the second point, we answer that the county treasurer has no funds; and that this mandamus was brought to compel the board of supervisors to levy a tax, to provide them. The argument, as to the method of paying debts when the money is at hand to do it with, has nothing to do with the question of raising the money to pay them with, when no money can otherwise be had.

III. Passing to the important question in the case, we insist that the words 'if deemed advisable' have the same legal signification as the word 'may' alone, or 'shall have power,' and no other.

In Mason v. Fearson, in this court, the words 'it shall be lawful,' are construed as mandatory. In laying down the rule for the construction of words of permission, the court says: 'Whenever it is provided that a corporation or officer 'may' act in a certain way, or that it 'shall be lawful' for them to act in a certain way, it may be insisted on as a duty for them to act so, if the matter, as here, is devolved on a public officer, and relates to the public or third persons.'

'Without going into more details, these cases fully sustain the doctrine, that what a public corporation or officer is empowered to do for others, and it is beneficial to them to have done, the law holds he ought to do.'

In The Commonwealth v. The City of Pittsburg, Grier, J., on the circuit, says:

'It is absurd to argue that conferring such a power (taxation to pay bonds) is imposing no duty. The select and common council are public agents, created to perform a public trust. One of the purposes of their creation is, that they may provide for the payment of the debts of the city. It is true that the act of February 7th, 1863, only declares that the city shall have power to make provision for the payment of the principal and interest of the money borrowed, by the assessment and collection of a tax, but in the statute the word 'may' means 'must' or 'shall' in cases where the public interest and right are concerned, and where the public or third parties have a claim de jure, that the power should be exercised.'

The argument for the plaintiff in this case is based on a mistaken idea of what discretion is. An examination of authorities will show that disputed facts are necessary to found a 'discretion,' or a 'deliberative judgment,' (in the sense used in the authorities) upon. In the case of The People v. Supreme Court of New York, the nature of a 'discretion' that cannot be controlled by the courts is discussed. The court says:

'It is that discretion which is not and cannot be governed by any fixed rules. We will not act upon our judgment in opposition to the judgment of a board of supervisors as to what is a reasonable compensation for services performed by a constable. . . .. It is to their judgment and discretion and not to ours, which the legislature has left that matter.'

They add, that had the board of supervisors refused to grant anything on the ground that they had no discretion, or that the officer had no right to any compensation, they would have interfered to 'set them in motion and determine the law, for they are legal duties and legal rights if they exist at all.'

It appears from authorities that if the facts are not disputed, there is no 'discretion' to exercise, and in this case the facts are admitted. If it is contended that the supervisors are to render a deliberative judgment on the law, we answer, that by the constitution of Illinois, they can have no judicial powers, and if they could have such power, it can be controlled by the court.

We think that an examination of the authorities cited by the plaintiff in error, will show that in every case cited, the respondents were to judge of facts more or less uncertain, or otherwise were invested with judicial powers.

In The Commonwealth v. The County Commissioners, cited on the other side, the court say:

'The law has vested the commissioners with the power of approving or disapproving of the account, and we cannot take it away from them.'

The law provided that the commissioners should draw an order if they approved of the bill.

In The People v. Supervisors of Albany, the applicant by law was to have such sum as they (the supervisors) shall judge he reasonably deserves to have. The supervisors had passed the claim, and the court says, this was a discretion left to the supervisors, which we cannot control, that the relator was not entitled to any particular sum, and that the amount to which he was entitled was by the very contract to be determined by the supervisors.

The case of United States v. Seaman, is decided on the ground, that the superintendent of printing was obliged 'to examine evidence, and form his judgment before he acted; and whenever that is to be done, it is not a case for a mandamus.'

In the case of United States v. Guthrie, the court says:

'The only legitimate inquiry for our determination upon the case before us is this: Whether under the organization of the Federal government, or by any known principle of law, there can be asserted a power in the Circuit Court of the United States for the District of Columbia, or in this court, to command the withdrawal of a sum or sums of money from the Treasury of the United States, to be applied in satisfaction of disputed or controverted claims against the United States.'

The decision of the Circuit Court, overruling the application, was approved.

After examining a great number of cases (though not perhaps all the authorities quoted by plaintiff in error), we find none in conflict with the position assumed in this argument.

Mr. Justice SWAYNE delivered the opinion of the court, having first stated the case.

We have not had the benefit of an oral argument upon either side. The case was submitted upon printed briefs. We shall confine our examination to the points thus brought to our attention.

In the return of the respondents to the alternative writ numerous objections were taken in regard to which their brief is silent. We take it for granted they have been abandoned, and shall not consider them.

I. It is said the court below, in rendering the judgment, allowed interest upon the coupons from the time they became due.

The judgment cannot be thus collaterally questioned. It can be impeached only in a proceeding had directly for that purpose.

II. A statute of Illinois provides that when a judgment is rendered against a county no execution shall issue, but that the county commissioners' court shall draw a warrant upon the treasurer for the amount, 'which shall be paid as other county debts.'

Such a warrant was applied for and refused, after the rendition of the judgment. If the judgment of the court below is sustained, a warrant can yet be issued when the fund to pay the judgment is provided, if a warrant be necessary to complete the obedience of the respondents in paying over the money according to the command of the writ. There is nothing in the objection as a matter of error.

III. The important question in the case is whether the respondents are compellable to levy and collect, by taxation, the amount specified in the order of the court below.

The writ, if issued, must conform to the order.

The court below proceeded upon the act of February 16th, 1863. We have not found it necessary to consider any of the other acts referred to in the briefs.

That act declares that 'the board of supervisors under township organization, in such counties as may be owing debts which their current revenue, under existing laws, is not sufficient to pay, may, if deemed advisable, levy a special tax, not to exceed in any one year one per cent. upon the taxable property of any such county, to be assessed and collected in the same manner and at the same time and rate of compensation as other county taxes, and when collected to be kept as a separate fund, in the county treasury, and to be expended under the direction of the said county court or board of supervisors, as the case may be, in liquidation of such indebtedness.'

The counsel for the respondent insists, with zeal and ability, that the authority thus given involves no duty; that it depends for its exercise wholly upon the judgment of the supervisors, and that judicial action cannot control the discretion with which the statute has clothed them. We cannot concur in this view of the subject. Great stress is laid by the learned counsel upon the language, 'may, if deemed advisable,' which accompanies the grant of power, and, as he contends, qualifies it to the extent assumed in his argument.

In The King v. The Inhabitants of Derby, there was an indictment against 'diverse inhabitants' for refusing to meet and make a rate to pay 'the constables' tax.' The defendants moved to quash the indictment, 'because they are not compellable, but the statute only says that they may, so that they have their election, and no coercion shall be.' The court held that 'may, in the case of a public officer, is tantamount to shall, and if he does not do it, he shall be punished upon an information, and though he may be commanded by a writ, this is but an aggravation of his contempt.'

In The King and Queen v. Barlow, there was an indictment upon the same statute, and the same objection was taken. The court said: 'When a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall: thus, 23 Hen. VI, says the sheriff may take bail. This is construed he shall, for he is compellable to do so.'

These are the earliest and the leading cases upon the subject. They have been followed in numerous English and American adjudications. The rule they lay down is the settled law of both countries.

In The Mayor of the City of New York and in Mason v. Fearson, the words 'it shall be lawful' were held also to be mandatory.

The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language-whenever the public interest or individual rights call for its exercise-the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.

In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose 'a positive and absolute duty.'

The line which separates this class of cases from those which involve the exercise of a discretion, judicial in its nature, which courts cannot control, is too obvious to require remark. This case clearly does not fall within the latter category.

The Circuit Court properly awarded a peremptory writ of mandamus. We find no error in the record. The judgment below is

AFFIRMED.


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Davidson v. Lanier

ERROR to the District Court of the United States for the Northern District of Mississippi; the suit having been by Lanier, curator of the succession of John J. McMahon, of New Orleans, against Davidson, on a bill of exchange drawn, as was alleged, by Davidson and others, and judgment having been given in favor of the plaintiff.

The case, as stated by the Chief Justice, was thus:

A statute of Tennessee, enacted in 1827, and entitled 'An act to suppress private banking,' made it penal to erect, establish, institute, or put in operation or to issue any bills or notes for the purpose of erecting, establishing, or putting in operation, any banking institution, association, or concern.

In January, 1856, this act being in force, several persons, of whom one Richard M. Kirby seems to have been the principal, undertook to establish a banking association or company in Memphis, Tennessee, under cover of a charter granted by the State of Arkansas for a corporation styled 'The Cincinnati and Little Rock Slate Company.' Their object was to issue bills for circulation as money, and use them in the cotton trade.

About the time of the organization of the company, Kirby visited McMahon, of whose estate the defendant in error is curator, at New Orleans, and exhibited the charter and explained the views of the company, whereupon McMahon agreed to act as its treasurer and financial agent.

In pursuance of this arrangement, circulating notes of the company, to the amount of twelve thousand dollars, were sent to McMahon, who used them, as far as he could, for currency. He also made advances to the company by accepting and paying bills drawn on him; and, in the result, became its creditor in a sum somewhat exceeding eleven thousand dollars.

At the time of the arrangement with McMahon, Davidson, the plaintiff in error, and one J. B. Ellis, were members of the company, but afterwards withdrew. Subsequently, however, upon the request of Kirby, Davidson, with two others, consented to sign, and Ellis consented to indorse several bills of exchange in blank, and among them that on which the suit below was brought. All the bills seem to have been addressed to McMahon as drawee. Shortly before, or very soon after this transaction, H. M. True, the secretary and treasurer of the company at Memphis, absconded, taking with him all the cash in his possession.

There was some obscurity, and, perhaps, some contradiction of evidence in the record, as to the time and purpose of signing and indorsing the blank bills of exchange. Kirby stated that they were signed and indorsed before the absconding of True, to enable himself to protect the circulation of the company. Another witness said that they were signed and indorsed after that event, at the suggestion of Kirby, to relieve McMahon from the consequences of True's theft; but this witness said, also, that he only knew the object of the bills from a statement by Kirby, made when the other parties were not present, and was not confident as to the time of signing and indorsement.

However these things may have been, it was certain that the bills were sent by Kirby to McMahon, in July, 1856, and were filled up some months later, after vain attempts to obtain payment of the balance due him.

All the bills, when they went into McMahon's hands, seemed to have had engraved on their face the formal parts of a bill of exchange, with the name of the place of date, 'Memphis, Tenn.,' and the direction to the drawer, 'John J. McMahon, New Orleans;' and all but one seemed to have borne the words, 'Exchange for $1000,' in the upper left hand corner. In other respects, as to time of date, amount to be paid, and time of payment, they were left blank. The one now in controversy was filled up with the date, 'July 15th, 1856;' with the time of payment, 'eight months after date;' with the sum to be paid, 'eight thousand nine hundred and ninety-two dollars and forty-four cents;' and with a stipulation for 'eight per cent. interest from maturity until paid.' Thus filled up, the bill sued on read as follows:

'Exchange for $8992.44.

'MEMPHIS, TENN., July 15th, 1856.

'Eight months after date of this, our first of exchange (second unpaid), pay to the order of J. B. Ellis eight thousand nine hundred and ninety-two dollars and forty-four cents, value received, and charge the same to account of your obedient servants, with eight per cent. interest from maturity until paid.

'JAS. R. FERGUSON,

J. LOCKE,

THOMAS J. DAVIDSON.

'TO JOHN J. MCMAHON, New Orleans.'

Indorsed: 'J. B. ELLIS, Ripley, Miss. RICHARD M. KIRBY.'

Upon the trial, the court charged the jury, that if McMahon's object in advancing his money was to enable the company to put into operation a banking company in violation of the laws of Tennessee, the jury must find for the defendant; and, also, that if McMahon agreed with Kirby to redeem the circulation, intending thereby to enable the company to go into operation, and the company did go into operation, issuing bank notes in pursuance of that agreement, then the transaction was illegal, and the plaintiff could not recover.

But the following instructions, numbered in the record 5th, 6th, and 7th, were also given by the court:

5. 'If, at the time the bills were given, the holder, McMahon, knew that the money would be used for the purpose of carrying on a banking company contrary to the laws of Tennessee, and if the banking company was then in operation, then the consideration of the bills is not affected by the use made of the proceeds of the bill, and the plaintiff is entitled to recover, unless the defence is sustained on some other ground.'

6. 'The signing of a bill of exchange in blank, is the giving of the holder an unlimited authority to fill it up at pleasure, and the party so drawing or indorsing is bound by the act of the party filling up the same.'

7. 'If the bills sued on were signed in blank, and delivered to Kirby to be sent in blank to McMahon, that would authorize him, McMahon, to fill up the bills and insert any rate of interest that was lawful, and the jury should find for the plaintiff, unless the defence is made out and sustained on some other ground.'

It was upon these instructions, considered in connection with the evidence, that the questions to be decided in this case arose.

Before arguing the merits, a motion to dismiss the writ of error was made.

The judgment of the District Court for $11,312.42 was rendered on the 6th of June, 1860. On the 7th a writ of error was sued out, and a copy was lodged with the clerk of the court on the same day, and bond for supersedeas given in double the amount of the judgment. A citation was also issued, dated 16th April, which was served on the 14th September, 1860, and the record, with the writ of error and the citation, was returned to the next term of this court. Another citation and apparently another writ of error, were issued on the 7th of June. Of the last-mentioned writ and citation there seemed to have been no service.

''The case was submitted in behalf of the plaintiff in error on the record. Mr. Brent for the defendant in error:''

I. Motion to dismiss. The grounds are: because it does not appear that the writ of error was 'allowed' by the judge, which it ought to be.

Because the citation returned here as the original, which was served on the 14th September, 1860, is on its face tested 16th April, 1860; nearly two months prior to the judgment, which it professes to bring up.

This citation, when served, gave notice to the defendant in error to appear and answer a writ filed at its date (16th April, 1860). No such writ had then been filed in this case, nor indeed had the judgment been rendered.

It may be here stated that on the 16th April, 1860, when this citation bears date, there was a judgment in same court dated 5th December, 1859, being the judgment in another case (No. 52), between the same parties, brought up to this court in immediate sequence to this, and in principle just like it, and it is properly described in this citation.

The appeal bond returned in this case was designed to be a supersedeas, from the amount of its penalty, &c. In such a case, the judge signing the citation is required to 'take good and sufficient security that the plaintiff in error shall prosecute his suit with effect,' &c. But here it does not appear that the judge approved the bond or exercised any judgment touching the security. He was an attesting witness, but as such he merely authenticates the signatures.

In the case of a supersedeas appeal bond, where it does not appear to have been taken or approved by the judge, the writ of error must be dismissed.

II. On the merits, or matters presented by the four instructions.

As respects the fifth and immediately preceding, or fourth instruction, the defence rested on the statute of Tennessee.

The case shows that McMahon (on whose estate Lanier is curator), residing in New Orleans, agreed to accept the drafts of a banking house in Memphis, Tennessee, and that this action is brought for the money paid in New Orleans by McMahon. The place of performance of McMahon's contract, therefore, was Louisiana, and its validity is to be tested by the laws of Louisiana, and not of Tennessee. If this be so, the whole defence of the plaintiff in error was inadmissible.

But the law of Tennessee manifestly intended to punish only the parties engaged in the institution of an unincorporated association and in issuing its currency; it did not intend to prohibit the recovery of money paid in good faith by a non-resident of that State upon the security of bills of exchange drawn on him by individuals, and which he honored for their accommodation. The contract to pay for money advanced upon personal security is valid, although the occasion for this contract arose out of the illegal act.

As respects the sixth and seventh instructions, the ground of the assignment of error probably is that they were too broad. We think them obviously right.

The CHIEF JUSTICE delivered the opinion of the court, and after stating the case went on thus:

title: Davidson v. Lanier


text: Talk:Davidson v. Lanier

title: Talk:Davidson v. Lanier