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Page:Copyright, Its History And Its Law (1912).djvu/181

 vision regarding works in other languages is spedfically confined to a work of foreign origin, that is, not by an American author; and he gains nothing, his work is in English, from ad interim protection. Thus an American author publishing his work first in German in Berlin, must copyright and deposit an American-made edition of his German text in this country to obtain American protection, without which his work in German could be imported into this country without his consent, and an independent translation of his text into English and its publication in America could not be prevented.

In view of the exact prescription of the method of securing copyright, unless the statute is precisely complied with the copyright is not valid. Said Judge Sawyer, in 1875, in Parkinson v. Laselle: "There is no possible room for construction here. The statute says no right shall attach until these acts have been performed; and the court cannot say, in the face of this express negative provision, that a right shall attach unless they are performed. Until the performance as prescribed, there is no right acquired under the statute that can be violated." And in the case of the play "Shaughraun," Boucicault v. Hart, in 1875, Justice Hunt held, as regards copyrights in general: "Two acts are by the statute made necessary to be performed, and we can no more take it upon ourselves to say that the latter is not an indispensable requisite to a copyright than we can say it of the former." The Supreme Court laid down this general doctrine in Wheaton v. Peters, in reference to the statutes of 1790 and 1802, and the later statutes are most explicit on this point. In the same case of Wheaton v. Peters, Justice McLean, in delivering the judgment of the Supreme Court, held that while the right "accrues," so that it may be protected in


text: Talk:Maguire v. Card

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

title: Talk:Maguire v. Card


text:
Maguire v. Card/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the northern district of California, in admiralty.

The suit was a proceeding in rem against the Goliah, to recover the balance of an account for coal furnished the steamer while lying at the port of the city of Sacramento, in the months of October and November, 1855. The vessel, according to the averments in the libel, and which are not denied in the record, was engaged in the business of navigation and trade on the Sacramento river, exclusively within the State of California, and, of course, between ports and places of the same State. She was therefore engaged, at the time of the contract in question, in the purely internal commerce of the State, the contract relating exclusively to that commerce, and which does not in any way affect trade or commerce with other States.

The court has held, in the case of Rufus Allen et. al. v. H. L. Newberry, at this term, that a contract of affreightment between ports and places within the same State was not the subject of admiralty jurisdiction, as it concerned the purely internal trade of a State, and that the jurisdiction belonged to the courts of the State. That case occurred upon Lake Michigan, within waters upon which the jurisdiction of the court was regulated by the act of Congress of the 26th February, 1845; but the restriction of the jurisdiction by that act was regarded by the court as but declaratory of the law, and that it existed independently of that statute.

The contract in that case, as we have said, was one of affreightment between ports of the same State; but we perceive no well-founded distinction between that and a contract for supplies furnished the vessel engaged in such a trade. They both concern exclusively the internal commerce of the State, and must be governed by the same principles.

There certainly can be no good reason given for extending the jurisdiction of the admiralty over this commerce. From the case of Gibbon v. Ogden (9 Wheat., 194,) down to the present time, it has been conceded by this court that, according to the true interpretation of the grant of the commercial power in the Constitution to Congress, it does not extend to or embrace the purely internal commerce of a State; and hence that commerce is necessarily left to the regulation under State authority. To subject it, therefore, to the jurisdiction in admiralty, would be exercising this jurisdiction simply in the enforcement of the municipal laws of the State, as these laws, under the conceded limitation of the commercial power, regulate the subject as completely as Congress does commerce 'with foreign nations, and among the several States.' We are speaking of that commerce which is completely internal, and which does not extend to or affect other States, or foreign nations.

We have at this term amended the 12th rule of the admiralty, so as to take from the District Courts the right of proceeding in rem against a domestic vessel for supplies and repairs which had been assumed upon the authority of a lien given by State laws, it being conceded that no such lien existed according to the admiralty law, thereby correcting an error which had its origin in this court in the case of the Gen. Smith, (4 Wheat., 439,) applied and enforced in the case of Peyroux and others v. Howard & Varion, (7 Peters, 324,) and afterwards partially corrected in the case of the steamboat New Orleans v. Phelbus, (11 Peters, 175, 184.) In this last case, the court refused to enforce a lien for the master's wages, though it had been given by the local laws of the State of Louisiana, the same as in the case of supplies and repairs of the vessel. We have determined to leave all these liens depending upon State laws, and not arising out of the maritime contract, to be enforced by the State courts.

So in respect to the completely internal commerce of the States, which is the subject of regulation by their municipal laws; contracts growing out of it should be left to be dealt with by its own tribunals.

For these reasons, we think the decree of the court below should be reversed, and the cause remitted, with directions to dismiss the libel.

Mr. Justice WAYNE dissented.

title: Maguire v. Card/Opinion of the Court


text: Talk:Maguire v. Card/Opinion of the Court


text:
Belcher v. Lawrason

THIS case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Louisiana.

It was an action brought by Belcher & Co. to recover back from the collector $6,159.20, which they alleged to have been exacted as illegal duties, and which they had paid under protest.

The following was the statement of facts in the court below:

1. That the plaintiffs imported into New Orleans, from the island of Cuba, the several cargoes of reboiled molasses, concentrated molasses, sugar-house molasses, cistern bottoms, and cistern sugars, fully set forth in the petition.

2. That said importations were made on entries, from which it appears that the importers were the manufacturers of the goods imported, and not purchasers thereof in the market.

3. That upon the appraisement of the merchandise so imported as aforesaid, the value thereof was fixed by the appraisers at a sum exceeding the invoice value by more than ten per cent., and that no appeal from this appraisement was made by the importers to merchant appraisers.

4. That the defendant thereupon exacted from the plaintiff a penal duty of twenty per centum on the appraised value of the merchandise imported, and that said penal duty, so levied as aforesaid, amounted to the sum of $6,159.20.

5. That said penal duty was paid under protest, as shown by the protests filed, which are made part of this statement of facts.

Upon this statement of facts, the Circuit Court decided that the said merchandise was not legally subject to a penal duty of twenty per cent. on the appraised value aforesaid, but was legally subject to a penal duty of fifty per cent. on the amount of duties which would have been properly chargeable if the invoice had expressed the true value of the merchandise imported, and the excess of penal duty so charged as aforesaid being ascertained to amount to $1,539.80, which ought to be returned to plaintiffs.

The plaintiffs brought the case up to this court.

It was argued by Mr. Benjamin and Mr. Johnson for the plaintiffs in error, and by Mr. Hull and Mr. Black (Attorney General) for the defendants.

One of the questions raised in the Circuit Court was abandoned by the counsel here. They conceded that the report of the official appraisers could only be corrected by an appeal to merchant appraisers. The question was settled in Bartlett v. Kane, (16 How., 263,) reported subsequently to the bringing of the action.

Upon the first of the remaining two propositions they contended that the exaction of the penal duty of twenty per cent. on the invoice value of the importations, under the eighth section of the tariff act of 1846, was clearly illegal, that point being settled by this court in the case of Greely v. Thompson, (10 How., 226,) also ruled by the New York Circuit Court, in Christ v. Spear, Thompson v. Maxwell, Durand et al. v. Lawrence.

Upon the other proposition, the arguments of the counsel on both sides were founded upon critical examinations of the tariff laws, which would not be interesting after the historical inquiry into these acts contained in the opinion of the court.

Mr. Justice NELSON delivered the opinion of the court.

title: Belcher v. Lawrason


text: Talk:Belcher v. Lawrason

title: Talk:Belcher v. Lawrason


text:
Belcher v. Lawrason/Opinion of the Court

This is a writ of error to the Circuit Court of the United States for the eastern district of Louisiana.

The suit was brought in the court below to recover back from the collector of the port of New Orleans an excess of duties paid by the plaintiffs. The goods upon which the duties were imposed were certain invoices of molasses and sugars, imported from Matanzas, in the island of Cuba, in the year 1852. They were imported by the manufacturer, and, on an appraisal of the value at the customs in New Orleans, the appraised value exceeded the invoice value upwards of ten per centum; whereupon, the collector imposed and additional duty of twenty per centum upon the appraised value, under the 8th section of the act of 1846, which was paid under protest.

The court below held that this additional duty was improperly imposed, under the act of 30th July, 1846, as the 8th section of that act applied only to merchandise purchased in the foreign market, and did not embrace goods imported by the manufacturer. The court further held, that the several shipments were subject to the increased duty imposed under the 17th section of the act of August 30, 1842; and allowed the plaintiff to recover the excess over and beyond the amount chargeable under this last section.

The principal question in the case is, whether or not the 17th section of the act of 1842 applies in the appraisal of merchandise imported by the manufacturer.

The act of Congress of March 1, 1823, recognised a distinction between goods imported which were purchased by the owner in the foreign market, and goods imported by the manufacturer himself, and prescribed separate and distinct oaths to be taken before the collector, (sec. 4.) That act also prescribed, as a rule for the appraisal of the goods, that to the actual cost if the same shall have been actually purchased, or the actual value if the same shall have been procured otherwise than by purchase, at the time and place when and where purchased, or otherwise procured, &c., shall be added all charges, &c., (sec. 5.)

The act of Congress of July 14, 1832, preserved the same distinction as in the act of 1823, in respect to goods imported which had been purchased, and goods procured otherwise than by purchase, (sec. 15, secs. 7 and 8.)

The 16th section of the act of 1842, like the 7th section of the act of 1832, prescribed the rule for the appraisal of goods imported which had been purchased in the foreign market, but omitted any provision in respect to goods imported which had been procured otherwise than by purchase, leaving this class of importations to the rule as prescribed in the acts of 1823, section 5, and 1832, section 15, which was not repealed, as no provision in that act was inconsistent with this rule. The repealing clause of that acts is as follows: 'And that all provisions of any former law inconsistent with this act shall be, and the same are hereby, repealed.' The regulations, therefore, of the acts of 1823 and 1832, in respect to the time and place when and where goods, procured otherwise than by purchase, were left untouched by the 16th section of the act of 1842.

Then, as it regards the 17th section. That is general, and applies to every class of importations-goods purchased, or procured otherwise than by purchase. It regulates the mode and manner of the appraisement. The appraisers may call before them, and examine upon oath, the owner, importer, consignee, or any other person, touching any matter deemed material in ascertaining the true market value or wholesale price of any merchandise imported; may call for letters, accounts, or invoices, relating to the valuation. It imposes a forfeiture of one hundred dollars for any neglect or refusal to attend before the appraisers and give evidence; makes false swearing before them perjury; and if the person be the owner, importer, or consignee, forfeits also the merchandise; requires that the evidence thus taken shall be filed in the collector's office, for future use; provides for an appeal, on the part of the owner, importer, or consignee, to merchant appraisers, in case of dissatisfaction at the appraisal by the permanent appraisers; makes the appraisal by the permanent or merchant appraisers, as the case may be, final and conclusive; and then closes with a proviso, that, in all cases where the actual value thus appraised and ascertained shall exceed, by the per centum, the invoice value, then, in addition to the duty imposed by law, there shall be levied and collected on the goods fifty per centum of the duty upon the appraised value. (See, also, act of Congress, March 3, 1851.)

As we have said, this section applies to all classes of importations, and regulates the mode and manner by which the appraisals shall be conducted by the appraisers, giving to the owner, importer, &c., the right of reappraisal by merchant appraisers, in case of dissatisfaction. It embraces not only importations of goods purchased, referred to in the 16th section of the act, but importations procured otherwise than by purchase, as provided for in the acts of 1823 and 1832; and while this act of 1842 remained in full force, it subjected all importations to the penalty of fifty per centum in case of undervaluation.

Then came the act of 30th July, 1846, the 8th section of which changed this penalty or increased duty, in case of undervaluation, to twenty per centum on the appraised value, as it respected goods imported which had been purchased, leaving the regulations in respect to goods imported by the manufacturers as they existed under the former laws.

This act, like the act of 1842, repealed only such enactments of former laws as were repugnant to its provisions, (sec. 11.) The 8th section, not including the manufacturer, left the importation subject to the 17th section of the act of 1842.

The act of 3d March, 1857, obliterates this distinction between goods purchased or procured otherwise than by purchase, and imposes upon the latter the twenty per centum upon the appraised value, for undervaluation, the same as in case of goods purchased. (Sess. Laws 1857, p. 199, Lit. & Bro. ed.)

It has been argued that, admitting the goods were properly subject to the fifty per centum increased duty, under the 17th section of the act of 1842, inasmuch as this was not imposed by the collector, but the higher increased duty, under the 8th section of the act of 1846, the court below erred in charging the shipments in question with the former duty.

But the answer to this objection is, that the law imposes the increased duty in case of undervaluation, and not the collector. It is true he is the agent of the Government to collect it, as he is in collection the ordinary rate of duties, but in no other sense or character. The law declares, in the case contemplated by the act, and which existed upon the proofs before the court, that, in addition to the ordinary duty, there shall be levied and collected, & c., fifty per centum, &c. No demand of the collector was necessary to create the liability. That arose, as matter of law, upon the facts disclosed in the record, and it was the duty of the court to enforce it; and hence the excess over this increased duty, arising under the 17th section, constituted the just amount which the plaintiffs were entitled to recover.

Judgment of the court below affirmed.


text: Talk:Belcher v. Lawrason/Opinion of the Court


text:
Pemberton v. Lockett

THIS was an appeal from the Circuit Court of the United States for the District of Columbia.

The facts are stated in the opinion of the court.

The Circuit Court decreed that $14,230, (being the one-half of the sum of $28,460 awarded,) less five per cent., together with interest thereon from the 20th of June, 1855, and costs, be paid by Pemberton to the complainants. From this decree, Pemberton appealed to this court.

It was argued by Mr. Brent and Mr. Johnson, with whom was Mr. May, for the appellant, and by Mr. Bradley for the appellees, on which side there was also a brief filed by Mr. Bradley and Mr. Hayes.

There were many points raised by the counsel for the appeallant; but as several of them were not touched upon in the decision of the court, it is proper to mention only such as were. The principal points which were included in the decision related to the facts of the case, and were as follows:Pemberton resided in New Orleans; Berret, Johnson, and Lockett, resided in Washington city; and the agreement was made in New Orleans.

This Creole claim was presented to the Executive Government of the United States, and was considered by it, (See Opinion of Attorney General Legare of July 20, 1842, 4 vol., 98,) was discussed in Congress, and became the subject of negotiation between our Government and that of Great Britain.

At length a convention, on the 8th of February, 1853, was made between these Governments, for the adjustment of all claims of the citizens of either Government against the other, and commissioners were appointed for hearing and deciding upon said claim.

10 Stat. at Large, 988.

These commissioners sat in London, and a public officer, called the law agent of the United States, was duly commissioned under the convention, to represent all claims of our citizens before the board; and he was present in London, and performed his duties, and was paid for them by the Government of the United States.

Neither of the defendants in error appeared before the board or the umpire appointed under the convention.

Befor that board the 'Creole case' was presented, and 'it was considered and discussed as a single case, and not in the name of a particular claimant.'

The questions of fact and law were common to all who were interested in this claim.

There was no other argument presented to the commission in the 'Creole case,' except that which was made verbally by the said law agent of the United States.

The papers in the claim were transmitted to London by the State Department.

Trinder & Eyre, of London, solicitors, were employed by Pemberton, under the advice of Senator Benjamin, to represent his claim before the board, so far as it was competent for private counsel to do so. And they presented to the law agent of the United States a memorial in his behalf, and properly-authenticated evidence in support of the claim, and 'which went before the commissioners when the papers were placed in their hands.'

Without authentic data to establish the loss of each claimant, no specific amounts could have been awarded.

That another memorial and proof to sustain it was forwarded by Johnson, one of the defendants in error, to the said law agent at London, and was presented by him and used in support of Pemberton's claim.

That said Johnson claimed to be counsel for others, and among them for said Lockett, one of the defendants in error, before said board in the 'Creole case,' and forwarded a memorial in his case.

That by the 3d article of said convention all claims were to be presented within six months from the day of the first meeting of the board.

10 Stat. at L., p. 988, art. 1; 990, art. 3.

That said Johnson did not transmit the memorial prepared by him for Pemberton's claim until after 29th of May, 1854, and after the lapse of six months from the opening of the board.

That so carelessly was the same prepared, that he did not even correctly present the name of said Pemberton, nor did he forward it for forty-two days after he swore to it, as shown by his letter of the 29th of May, enclosing it; and this, though the memorial, as sworn to, shows on its face that it was then out of season, and liable to be ruled out.

That neither the said Berret nor Lockett appear to have had any agency or part whatever in representing or prosecuting the said claim.

That besides the said memorial and papers transmitted by said Johnson to said law agent, the only part he had or took in representing the said claim of Pemberton was a mere reference to the same by a letter to the said board, stating that his argument, presented in said Lockett's case, 'was applicable to the case of the Merchants' Insurance Company.'

That said Lockett's claim was a heavy one, being for the value of seventy-five slaves, and it comprised all the labor and service rendered by said Johnson in the 'Creole case;' and that the same was submitted on said Johnson's argument, made in that behalf alone, so far as he was concerned, and without other act or thing done by him in behalf of Pemberton, other than the reference aforesaid.

That the said Lockett, Berret, and Johnson, before the case was argued in London, released and abandoned their said joint contract for their services to said Pemberton; and the said Johnson, who alone afterwards appeared or was known in the case, was a mere volunteer, and offered to make a new contract for his services, to be rendered for one-half the amount stipulated for in the said joint agreement.

That said Trinder & Eyre were present at the argument of the claim, and aided the law agent of the United States in the case, and their correspondence will show an actual and faithful performance of duty. And they were compensated by Pemberton.

That the award in the 'Creole case' was made on the 9th of January, 1855, by the umpire, Mr. Bates; and two several items of claim were allowed said Pemberton, amounting to $28,460, on the 15th of January, 1855.

And this sum was transmitted to the Department of State at Washington, and received by the Secretary of said Department, as the money of the said Pemberton, as liquidator, and to be paid to him as such, subject to a deduction of five per cent. for the expenses of the commission.

That the full amount due and payable to said Pemberton was by him claimed at the State Department, from the then Secretary thereof, the Hon. William L. Marcy, and the payment of one-half thereof was refused and restrained by injunction issued from said Circuit Court on the 20th of June, 1855, 'commanding said Pemberton, his attorneys, agents, &c., not to demand or receive the remaining half of said award to him as liquidator, to wit: the sum of $14,230, subject to said deduction of five per cent.' And the said sum of money has remained and now is in the said Department of State, under the said injunction, which has never been dissolved.

The counsel for the appellees contended, amongst other points, that the contract had neither been recinded by the acts of the parties nor the change of circumstances.

Upon the latter proposition, their argument was as follows:

2. The contract was not rescinded or annulled by any change of circumstances rendering it impossible to be carried into effect.

The appellees deny the allegation in the answer, that compensation was agreed upon in the event of a recovery of the claim against the United States. No such condition is expressed or implied in the contract. The appellees also deny the allegations in the answer, that the contract was entered into for services to be performed in Washington city, and that the provision in the convention, 'that it shall be competent for each Government to name one person to attend the commissioners, as agen on its behalf, and to answer claims made upon it, and to represent it generally in all matters connected with the investigation and decision thereof, were circumstances of themselves which put an end to the contract, so that complainants had no longer any right to recover thereon.' No such conditions are found in the agreement.

The most importan work in the prosecution of the case (viz: the preparation of evidence) could only be done in the United States, and particularly in the city of Washington. The evidence shows that the appellees were employed several weeks in obtaining testimony from the Departments in Washington. The convention provided that the claims should be heard upon such evidence or information as shall be furnished by or on behalf of their respective Governments. (Report of Decisions of the Commission of Claims, p. 9.) Thus, all the memorials and proofs were required to be presented through the Department of State at Washington.

The appointment of an agent in behalf of the United States did not dispense with the necessity for employing associate counsel. Such counsel were frequently associated with the agent of the United States. (Report of Decisions of the Commission, pp. 16, 18, 29, 41, &c.)

There was no necessity for employing English counsel, as is alleged, as the case was not before an English court, but a joint commission; and, from the peculiarity of the case, English counsel were totally unfitted to manage it.

Mr. Justice NELSON delivered the opinion of the court.

title: Pemberton v. Lockett


text: Talk:Pemberton v. Lockett

title: Talk:Pemberton v. Lockett


text:
Pemberton v. Lockett/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the District of Columbia.

The bill was filed in the court below, by the respondents, against the appellant, Pemberton, liquidator of the Merchants' Insurance Company, in the city of New Orleans, representing the interest of that company, which was insolvent, for the purpose of establishing a title to certain moneys in the possession of the Government, which had been received under the convention between the United States and Great Britain, of the 8th of February, 1853. The money had been awarded by the umpire, under that convention, to the company, which had been subrogated to the rights of one of the claimants for compensation against Great Britain, in the case of the brig Creole. The umpire allowed to the company $28,460. The complainants below set up, in their bill, a title to one-half of this fund, as the agents and attorneys of Pemberton in the prosecution of the claim.

The right rests upon the following agreements, entered into between them and the defendant (Pemberton) at New Orleans, dated the 23d of December, 1851:

'For and in consideration of services rendered, and to be rendered, by James G. Berret, Henry D. Johnson, and E. Lockett, of Washington city, D. C., in the prosecution of our claims for the value of slaves freed at Nassau, N. P., which we had to pay for, we do hereby agree to allow to said Berret, Johnson, and Lockett, their heirs or assigns, one-half of any or all such sums of money, principal and interest, as may be recovered on account of our said losses, it being understood that the said Berret, Johnson, and Lockett, are to use their best exertions in the prosecution of said claim, and that no allowance whatever, as expenses or compensation for their services, is to be made by us to the said Berret, Johnson, and Lockett, unless our said claim shall be allowed, in whole or in part. Witness our hand and seal, at New Orleans, this 23d day of December, in the year of our Lord 1851.'

The claims referred to in this agreement originated as far back as the year 1841, in consequence of the unwarrantable interference of the public authorities at Nassau, in the island of New Providence, one of the Bahama Islands, belonging to Great Britain, and liberating a cargo of slaves, who were on a voyage from Virginia to New Orleans, and who had mutinied, overcome the officers, and carried the vessel into that port.

The persons interested in the slaves, of which they were deprived by this interference, immediately appealed to their own Government for redress. A correspondence was opened between this Government and Great Britain on the subject, which continued down to the time of the convention already mentioned, of the 8th of February, 1853.

This convention provided for the appointment of a board of commissioners, one to be named by each Government, and the two to appoint an umpire, to decide upon all claims in which a difference of opinion should occur.

The board sat in the city of London, and were bound, according to the terms of the convention, to receive and peruse all written documents or statements which might be presented to them, by or on behalf of their respective Governments, in support of or in answer to any claim; and to hear, if required, one person on each side, in behalf of each Government, as counsel or agent for such Government, on each separate claim. Each Government appointed an agent to represent it before the board; and, as we have said, the umpire allowed to the insurance company $28,460.

It is insisted, on behalf of the defendant, (Pemberton,) that this contract, entered into with complainants in 1851, had reference to the solicitation of claims before, and allowance by, the Government, at the city of Washington; that they were employed as gentlemen residing at that place, engaged in business of this character; and that the convention between the two Governments, the appointment of a board of commissioners, and prosecution of the claims against Great Britain before it, under the authority of the United States, put an end to the contract. Although its terms are general, and open to some difficulty as to the real meaning and intent of the parties, we are inclined to concur in this view of it. We think it could hardly have been within the contemplation of either of the parties, that the prosecution spoken of in the argument was a prosecution or solicitation of claims against the foreign Government, or in a tribunal sitting there, and before which this Government had taken upon itself the duty of the prosecution. We are satisfied these agents were under no obligation, according to the true intent of the agreement, to follow these claims to London, and prosecute them there; and if not, it is quite clear the transfer of them to the commission there put an end to the agreement. And this seems to have been the view taken of it by the parties themselves, as manifested by their conduct after the appointment of the commission.

By the third article of the convention, the claims were to be presented before the board within six months from the day of its first sitting, unless a good reason could be given for the delay. The board first met in London on the 15th of September, 1853; and on the 15th of October it adopted rules and regulations in respect to the proceedings before it, and, among others, required all claims to be presented within six months from the 15th of September, the day of its first sitting.

Now, the first step taken by these complainants in behalf of the claims of Pemberton, under the convention, was a letter written to him by Lockett, dated December 15, requesting that a power of attorney should be given to Johnson, to act for him before the commission. This was three months after the commencement of its sittings, and after half the period had expired within which the claims were required to be presented. It does not appear that this letter was answered by Pemberton.

The next step taken was a letter from Johnson himself, dated at Washington, 22d of March, 1854, in which he announces that he had prepared a memorial on behalf of the claims of the insurance company, and was ready to forward it to the commissioners, in London. This was seven days after the expiration of the six months.

In the mean time, Pemberton had employed agents residing in London to attend to his claims, and who, it appears, had the charge and management of the business until the close of the commission.

What is very material, also, in this letter of Johnson of the 22d of March, he there states, in respect to the situation of his two associates, as an inducement to Pemberton to give him, individually, the power of attorney-that Lockett is absent, and that Berret was unable to attend to the business, having been appointed postmaster of the city; and then proposes to conduct the business himself alone, for the compensation of twenty-five per centum of the money recovered, the half only of what is now claimed under the agreement of 1851. It does not appear that any answer was returned to this letter, doubtless for the reason that other agents had already been employed.

It is true, that Johnson drew up the memorial to the commissioners, on behalf of Pemberton, as above mentioned, but without any authority from him, and swore to it, at Washington, on the 17th of April, 1854, in which he endeavored to explain the delay in presenting the claim; and forwarded the same from this country on the 29th of May following. But the subject had already been brought to the notice of the Government agent, and before the board of commissioners, as early as the 23d of that month, by the agents of Pemberton in London. This memorial, therefore, was of no particular importance.

It appears from the report of the proceedings under the commission, and of its decisions, communicated to Congress by the President, 11th of August, 1856, (Senate Docs., vol. 15, 1855-'6,) that there were six separate claimants, besides Pemberton, for compensation arising out of the case of the Creole, and all depending, substantially, upon the same facts. And there were, also, the cases of the brig Enterprise and schooner Hermosa, involving principles similar to those upon which the reclamation depended in the case of the Creole. All the parties whose claims arise out of the case of the Creole were equally interested in furnishing the proofs upon which the general claim against the British Government rested; and the three vessels were interested in common, as to the principles of international law that should govern the decision of the board of commissioners.

The Government agent and commissioners took this view of these several claims, and but one argument was made in all of them, and that in the case of the brig Enterprise, and but one opinion delivered by the commissioners. As they disagreed, a second argument was made before the umpire.

The preparation of the claim of Pemberton, beyond the proofs of the interest of his company in the case of the Creole, was a very trifling matter; and even these proofs had been already furnished to this Government, at the time the appeal was made there for redress. And as it respects the questions of international law involved in these cases, they had been the subject of repeated discussion between this Government and Great Britain, and also in Congress, by some of the most distinguished statesmen and jurists of the country; and the preparation for the argument of the claim before the board of commissioners required little else than the labor of digesting and reproducing the principles and reasoning to be found in these discussions.

For the reasons above given, we are satisfied the agreement and proofs in the case furnish no legal or just ground for a claim to the sum of money awarded by the court below, and that the decree should be reversed, and the proceedings remitted, with directions to enter a decree dismissing the bill.


text: Talk:Pemberton v. Lockett/Opinion of the Court


text: Poorman v. Woodward

title: Poorman v. Woodward


text: Talk:Poorman v. Woodward

title: Talk:Poorman v. Woodward


text:
Poorman v. Woodward/Opinion of the Court

THIS case was brought up by writ of error from the Circuit Court of the United States for the southern district of Ohio.

The facts are stated in the opinion of the court.

It was argued by Mr. Stanbery for the plaintiffs in error, and by Mr. Marbury for the defendants, upon which side there was also a brief filed by Mr. Smythe, which was adopted by Mr. Swayne.

Mr. Stanbery contended that a certificate of deposit is in no sense cash, or money; it is simply an acknowledgment of a debt, with a promise of payment. The transaction between Hood and Woodward & Dusenberry was simply the exchange of one form of negotiable security for another.

This was clearly a breach of trust, and a perversion of the authority to use the note for the loan of money.

Thorold v. Smith, 11 Modern, 71, 87.

Bartlett v. Pintland, 10 Barn. and Cress., 758.

Atkins v. Owen, 4 Ad. and Ellis, 819.

Nightingale v. Devisone, 5 Burr., 2589.

1. This was an action of assumpsit, in which the plaintiffs below, the defendants in error, Woodward & Dusenberry, recovered of the defendants below, the plaintiffs in error, Poorman et al., the sum of $4,473.76, being amount of the cash balance of $2,997.67 due to the defendants in error, with interest thereon from December, 1849, to the date of the judgment, with costs.

2. The whole amount originally loaned and advanced to Poorman et al. was the sum of $6,000. This loan was made on the joint and several note of Poorman et al. for $15,000, dated Somerset, Ohio, October 24th, 1849, and payable to the order of Woodward & Dusenberry, thirty days after date.

3. With this note in his hands, Thomas Hood, one of the joint makers thereof, applied to W. & D., in the city of New York, for a loan of $6,000, and requested them to deliver to him their certificate of deposit of that amount, to the credit of John Ritchey, Esq., cashier.

4. Thereupon the note was delivered to W. & D., and on the faith thereof the certificate of deposit was delivered to Hood. Ritchey, the payee, duly endorsed the certificate; and when it was presented, subsequently, by the bona fide holders thereof, to Woodward & Dusenberry, they paid the full amount thereof in cash, according to its tenor and obligation.

5. The certificate of deposit, so granted, was in effect, as the court below correctly instructed the jury, money, and came within the authority to borrow money-an authority which Hood had expressly received from the other makers, and which, moreover, he possessed independently as one of the joint makers of the note.

6. No restriction or limitation was placed on Hood's power as to the amount of the loan, nor as to the mode, or form, or kind of funds, in which it was to be effected. He had a general authority as joint maker and holder to borrow or raise money on the note, in any way not illegal, for the benefit of himself and his associates.

7. The transaction was just the same in legal contemplation and in substance as if he had received the $6,000 in specie or bank bills, or the check of Woodward & Dusenberry, and then deposited the amount with them, and taken their certificate of such deposit.

8. The certificate was of the deposit of so much money, and in fact it yielded in money, on presentation, the full sum of $6,000, expressed on its face.

9. The makers of the note lived in Ohio, where they wanted to use their funds; and for their convenience and accommodation this negotiable certificate of deposit of cash, answering their purpose as cash, was granted.

10. The class of cases relied on by the plaintiffs in error, such as Bartlett v. Pintland, (10 Barn. and Cres., 758; Atkins v. Owen, 4 Ad. and Ellis,) merely hold that a naked agent, authorized to receive payment, cannot do so by discharging a debt due from himself to the party by whom the payment should be made. (See observations upon those cases-Dunlap's Paley's Agency, 284.)

This court has held, in a more analogous case, (Tayloe v. Merchants' Fire Ins. Co., 9 How., 402,) that where the mode of payment is not prescribed, the agent may exercise a discretion.

11. The judgment should be affirmed, with costs.

The brief adopted by Mr. Swayne contained the following more extended notice of the authorities cited by Mr. Stanbery, and also of some American authorities:

It will not do to narrow the question to the simple proposition stated in Mr. Stanbery's brief, viz: whether the certificate is money. It is not necessary to affirm this, to show the transaction binding on all the parties, and the remedy within the count, for money had and received. Hood, having authority to borrow money on this note, had authority to receive anything which, in the usual course of business, is treated as such, and will command it. If he got the money or its equivalent, the object of himself and his principals was attained; and it does not lie in their mouths, after having acquiesced in what was done, and realized the money on the certificate, to dispute their liability, because the money, in form, was not given to Hood at the precise time that he parted with the note.

With all due respect for the learned counsel and his ancient authorities, we submit, that they do not meet this case. Thorold v. Smith was the case of a servant sent to collect a debt due his master, and he received a goldsmith's note and gave a discharge. The note was not paid, the maker becoming insolvent. The question was, 'whether this was good payment to the plaintiff, and was held to turn on the authority conferred on the servant. And it was agreed by the court that this was a matter of evidence to the jury, and that the authority in the servant was to be presumed, if the master did not promptly return the note, and that he 'was acquainted with and acquiesced in what had been done.' And C. J. Holt said that 'any jury at Guildhall would find payment, by a bill, to be a good payment, it being a common practice of the city.'

In Bartlett v. Pintland, the broker, employed to secure a loss on an insurance policy, set off his own debt to the underwriters, and became bankrupt. This was held not to discharge the liability.

In Atkins v. Owens, the defendant was employed simply to procure an endorsement of a time bill of exchange by a party from whom the plaintiff had received it, and he, the defendant, converted the bill to his own use, without receiving any money upon it. It was held that, though liable in trover, assumpsit for money had and received would not lie.

In Nightingale v. Devisone, the defendant had received from Mittivier, who was a bankrupt, the transfer of five hundred pounds East India stock. The plaintiffs, assignees of the bankrupt, brought suit for money had and received. Lord Mansifield said this was a new species of property, and was not money to be recovered in that form of action.

As to the first case cited, can there be a doubt that, even in that age, if the servant or the master had, in fact, received the money on the goldsmith's note, that the plaintiff in that case would have been estopped? So, in the last case cited, if the defendant had converted the stock into money, is there any question that the action for money had and received would lie? The other two cases do not seem to be at all analogous.

It will be observed that in England, especially in the earlier cases, there was a strong disposition to limit the evidence, under the money counts, to strict money transactions. Lord Holt strenuously resisted the then growing practice in trade of treating bankers' cash notes and promissory notes as negotiable, until they were made so by the statute of Anne. But the American authorities have liberalized the doctrine in this respect, to meet the expanded customs of commercial transactions, and have held those money securities which in the common course of business are treated as money, and even bills of exchange and promissory notes, proper evidence under the money counts. They have even gone farther, and sustained this action in cases where there was no negotiable money security received by the defendant, but where, in the nature of the transaction, he ought, in equity, to respond for money received.

Thus, in State Bank v. Hurd, (12 Mass., 172,) an endorsee of a negotiable note recovered against the endorser. The action was also sustained in behalf of the endorsee against the maker (Ramsdell v. Soule, 12 Pick., 126.) And, even where the maker signed the note for the accommodation of the payee. (Cole v. Cushing, 8 Pick., 48.) So also in behalf of the holder of a note payable to bearer.

Grant v. Vaughan, 3 Burr., 1516.

Pierce v. Crafts, 12 J. R., 90.

Olcott v. Rathbone, 5 Wend., 490.

So it has been held that if a draft, not negotiable, be accepted by the drawee, with an agreement to pay the amount to any person to whom it is assigned, the assignee, after notice, may maintain the action for money had and received against the acceptor.

Weston v. Penniman, Mason, 306.

In Tuttle v. Mayo, (7 J. R., 132,) it was held that the taking of negotiable paper is equivalent to the receipt of money, so as to maintain this action.

So in Floyd v. Day, (3 Mass., 403.) If an agent compromise a demand of his principal, by receiving from the debtor a negotiable note, endorsed specially to the agent, the principal may recover of the agent the amount of the liquidated damages, in an action for money had and received.

The taking of a promissory note as payment of an execution, and endorsing it satisfied, was held equivalent to the payment of money, and that the amount of such note may be regarded as money.

Clark v. Pinney, 6 Cow., 297.

In Bank of Kentucky v. Wister et al., (2 Pet., 325,) where depreciated bank bills, passing in community at one-half their value, were deposited with the bank, and a certificate taken, this was held to be equivalent to money.

If a creditor receive of his debtor a demand against a third person, payable in money, as a pledge or collateral security for the debt, and the creditor receive payment of the demand in money or otherwise, and appropriate the proceeds to his own use, and there be more than sufficient to pay the debt, the debtor may recover the surplus, in an action for money had and received.

Randall v. Rich, 11 Mass., 494.

Emerson v. Cutts, 12 Mass., 78.

If two be jointly concerned in merchandise, to be sold for profit, and one takes and appropriates it to his own use, he is liable to the other for his proportion of the net profits, in this form of action.

Stiles v. Campbell, 11 Mass., 321.

Where an attorney or agent has discharged a debt due to his principal, and applied the amount to the payment which the attorney owed to his principal's debtor, the amount of the debt so discharged may be recovered in this form of action. So, where an attorney, on a judgment in favor of his client, purchased lands under the execution, and paid by discharging the judgment, this action will lie.

Beardsley v. Root, 11 J. R., 464.

Property paid or used as money will support the action for money had and received, the same as if money itself had been paid and received.

Ainslee v. Wilson, 7 Cow., 662.

In Picard v. Banks, (13 East., 20,) a stakeholder, who had received banker's cash notes, and had wrongfully paid them over to the losing party, was held liable to the winner in an action for money had and received; and this, upon the ground that, though the notes were not money, yet being received as such, and so treated, he should not say they were only paper, and not money.

And in Owenson v. Morse, (7 T. R., 64,) it is said of such notes, that, 'on account of their being payable on demand, they are considered as cash; but, if presented in due time and dishonored, they will not amount to payment,' unless the defendant had agreed to take them as payment.

A certificate of deposit is like a check on a banker, of which it is said, (Chitty on Bills, 323,) 'in practice they are taken as cash, and it has been decided that a banker in London, receiving bills from his correspondent in the country, to whom they had been endorsed to present for payment, is not guilty of negligence in giving up such bills to the acceptor, upon receiving a check on a banker for the amount, although it turn out that such check is dishonored.'Russell v. Hankey, 6 T. R., 12.

If the agency of a stranger, for receiving payment for his principal, will thus authorize the receipt of such securities as money, why may not an agent, having a common interest with his principals, do the same thing?

In construing the authority conferred on Hood by the plaintiffs in error, we must look to the circumstances of the parties, their place of residence, their relations to the subject of the agency and to each other, their common interest in the transaction; and if Hood did what it may reasonably be supposed the others would have done, had they been present, it cannot be said that he exceeded his authority. And, especially, if, after it was done, they acquiesced by their silence, and availed themselves of the benefits of the transaction, they must be presumed to have authorized it. If Hood treated the certificate as money, so did they; and shall they now be permitted to say that they will not be bound by their agreement to receive it as money?

In passing upon the transactions of men, the law treats the subject-matter according to the usual understanding and usages prevailing where the transaction took place. In this view, the certificate of deposit is money. It is so treated and dealt with in the common business of life.

Mr. Justice CATRON delivered the opinion of the court.

Hood and nine others, including the defendants, made a note of hand in Ohio, dated October 24th, 1849, for fifteen thousand dollars, payable to Woodward & Dusenberry thirty days after date, at their office in New York.

For himself, and as the agent of the other makers, Hood applied to the payees, Woodward & Dusenberry, for an advance of money on the note, for the benefit of all the makers jointly. Woodward & Dusenberry agreed with Hood to advance, on a pledge of the note, as security, six thousand dollars; and Hood requested them to give to him their certificate of deposit for that sum, to the credit of John Ritchey, cashier; which was done, and Ritchey, as payee, endorsed the paper to Hood. It was subsequently presented for payment by bona fide holders, and Woodward & Dusenberry paid the full amount thereof in cash.

At the time the certificate of deposit was given, and endorsed by Ritchey, and the fifteen thousand dollar note delivered to Woodward & Dusenberry, they agreed with Hood that if he should return to them the certificate of deposit, they would then surrender to him the note. The money advanced not having been refunded, except in part, this suit was brought in assumpsit to recover the balance.

In their answer to a bill of discovery, Woodward & Dusenberry admit they were advised by Hood that the $15,000 note 'had been executed by himself and his friends, the other signers thereof, for the purpose of borrowing money thereon for the joint benefit of all of them;' also, 'that at the time said note was delivered to the said Woodward & Dusenberry, they issued and delivered to said Hood, for the joint use and benefit of all the parties signing said note, as the respondent understood it, the certificate of deposit of said Woodward & Dusenberry for the sum of six thousand dollars, by request of said Hood, made payable to the order of John Ritchey, Esq., cashier at the office of said Woodward & Dusenberry in New York city, on the return of said certificate, and which said certificate was received by said Hood on behalf of himself and his associates as so much cash.'

Upon this and other evidence in the case, the counsel for the defendants (the now plaintiffs in error) asked the court to instruct the jury, that if they should find, from the evidence, that Hood was only authorized to use the note to borrow money thereon for the joint benefit of himself and the other makers thereof, and that at the time the plaintiffs, Woodward & Dusenberry, received the same from Hood, and delivered to him the certificate of deposit, they had notice that Hood so held the note for the said purpose, then the plaintiffs were not entitled to recover of the defendants; which instruction the court refused to give, but did instruct the jury that the certificate of deposit so delivered to Hood was in effect money, and came within the authority to borrow money. Exceptions were taken to the refusal to give the charge asked for, and to the charge as given.

They claimed that the court erred, insisting that a certificate of deposit is in no sense cash or money; it is simply an acknowledgment of a debt, with a promise of payment; that the transaction between Hood and Woodward & Dusenberry was simply the exchange of one form of negotiable security for another; and that this was clearly a breach of trust, and a perversion of the authority to use the note for the loan of money. And they refer to the following authorities in support of this position: Thorold v. Smith, 11 Modern, 71, 87; Bartlett v. Pintland, 10 Barn. and Cress., 758; Atkins v. Owen, 4 Ad. and Ellis, 819; Nightingale v. Devisone, 5 Burr., 2589. Here, Woodward & Dusenberry had six thousand dollars in bank, or a broker's office, and the cashier gave a certificate to that effect, and promised to pay the money to the holder of the certificate who should present it. Hood could have taken out the money the next hour.

A certificate of this kind was a means of advance, that in all probabillity suited these borrowers, who resided in Ohio, quite as well as the gold or silver would have done. It was to the same effect as if Hood had received the money, and deposited the specie, subject to his own check on the cashier of the bank. This certificate was actually paid in cash to the agent of the parties to the note, for such the bona fide holder was.

To maintain, as we are asked in effect to do, that a check on a bank, payable at sight, to order, and endorsed in blank, and which an agent, to raise money on negotiable paper, took as money, and which check was presently paid to a bona fide holder by the cashier of the bank, was not money; that the note or bill purchased was not sold for money; that no title passed to the purchaser; and that the principal was not bound by the contract of the agent, would be a startling doctrine in the marts of commerce of this country, where money is usually transferred by bank checks, and may be fairly presumed to change hands on the check being given.

We order that the judgment be affirmed.


text: Talk:Poorman v. Woodward/Opinion of the Court


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Doe v. Mahana

THIS case was brought up by writ of error from the Circuit Court of the United States for the southern district of Ohio.

It was an ejectment brought by Dickins's lessee to recover a lot of one hundred acres, being number eight in the donation tract, Marietta district, Ohio, in township nine, range eleven, in the district of lands subject to sale at Chillicothe, formerly in the Marietta district.

In 1849, the office was removed from Marietta to Chillicothe; and in transcribing the book, the words 'school land,' which were written in the Marietta book upon the plat of the land in question, were omitted in the Chillicothe book. Perhaps this was the origin of the controversy.

Upon the trial in the court below, Dickins's lessee made out his title as follows, viz:

1. A patent issued to Samuel A. H. Marks, on July 1, 1851, which included the lot in question.

2. Conveyances from Marks to the plaintiff.

The defendant claimed under a lease from the trustees of Windsor township, Morgan county, which is composed in part of fractional township nine, range eleven, in the district of lands now subject to sale at Chillicothe, being formerly in the Marietta land district. It was admitted that he had been in possession from the year 1834, claiming to hold the same as school lands belonging to said township nine, range eleven.

The whole question, then, depended upon the inquiry whether this lot had been set apart as 'school land,' according to law.

The difficulty arose from the circumstance that this part of the country was not included in the general land system, under which the land reserved for schools is at once ascertained, without the possibility of mistake. But, in 1792, the grant to Putnam and others required that they should lay out the land in lots of one hundred acres each; and as part of it had been settled in that way, it became necessary to lay out the unsettled residue, which reverted to the United States, in lots also of one hundred acres, in order to conform to existing settlements.

In 1818, these reverted lots were ordered to be sold, with the exception of the usual proportion for the support of schools, which the Secretary of the Treasury had the power to select. In order to make out his title, and show that his lot was amongst those thus selected and reserved from sale, the defendant introduced a great deal of record evidence, which it is not necessary to insert in this report, because the decision of this court was, that all that matter should have been left to the jury. They were the proper tribunal to decide whether or not the facts in evidence justified the presumption that the Secretary had selected this lot as 'school land.' The court decided that this was a legal presumption, and, upon this point, the judgment was erroneous.

The court also erred in deciding that, under the act of 1818, the register had power to select the 'school lands.'

Under the instructions of the court, the jury found the defendant not guilty, and judgment was entered for him.

The plaintiff sued out a writ of error, and brought the case up to this court.

It was argued by Mr. Coombs and Mr. Vinton for the plaintiff in error, and by Mr. Hanna for the defendants.

The precise question decided by this court-that is, that the jury were to decide upon the presumption of the land being selected as school land according to law, and that it was not a question for the court-was not argued by the counsel; and it is not thought necessary to report their arguments, either for or against the presumption.

Mr. Justice CATRON delivered the opinion of the court.

title: Doe v. Mahana


text: Talk:Doe v. Mahana

title: Talk:Doe v. Mahana


text:
Doe v. Mahana/Opinion of the Court

By the act of 21st of April, 1792 there was granted to Rufus Putnam and others, known as the Ohio Company, one hundred thousand acres of land in the Marietta district, in the territory northwest of the Ohio river. The object of Congress and the grantees seems to have been to cause the country to be inhabited by making donations, through the company, to actual male settlers, of one hundred acres each; and all of the tract not thus disposed of within five years from the date of the grant, reverted, by its terms, to the United States, as public lands. The ordinary laws for surveying by ranges, townships, and sections, did not apply to this tract, nor to the surplus that might revert, as ordinary surveys would have thrown the townships and sections into fractions, by the hundred-acre lots previously disposed of by the company.

By compact, the United States stipulated to give to the State of Ohio one thirty-sixth part of the public lands in that State, for the use of schools; and the 16th section of each township was the land thus contracted to be given, in cases where there were regular surveys in townships of six miles square; and, by the acts of April 30, 1802, and March 3, 1803, (sec. 3,) Congress further stipulates that the lands previously promised 'for the use of schools, in lieu of such of the sections number sixteen as have been otherwise disposed of, shall be selected by the Secretary of the Treasury, out of the unappropriated reserved sections in the most contiguous townships.'

By the act of March 18, 1818, Congress directed the lands in the Ohio Company's donation tract to be surveyed by the surveyor general, separating that conveyed to settlers from that not conveyed, and belonging to the United States by reversion. This latter land he was to lay off into townships and sections, or into one-hundred-acre lots, conforming them to the plan observed by the company, when providing for actual settlers. And he was ordered to make returns of the surveys to the General Land Office, and to the register of the land office at Marietta. The lands were laid off into one-hundred-acre tracts, and these tracts the act orders to be sold, 'with the exception of the usual proportion for the support of schools.' By the President's proclamation, they were offered for sale on the first Monday in June, 1819. There was no reservation to the general order of sale, except of such lands as the Secretary should select, according to the power vested in him by the act of 1803, for the use of schools; and it is a fair presumption, that the register offered all the lands for sale that were not reserved. But the difficulty is, that for the lands in dispute there might have been no bidder when they were offered. That the Secretary had the power to reserve school lots, and to bind the United States and the townships to his selection, is very clear; and we think it is equally clear that the register of the Marietta district had no power to designate these school lots. As a subordinate, he could lawfully record the orders of the Secretary in this respect, but could do no binding act himself.

Six of the lots of one hundred acress each, lying in a body, and square form, together with lot No. 34, adjoining on the east, were not sold, (including No. 8, the lot in dispute.)

On the tract book found in the office of the register at Marietta, and by which the sales of 1819 were governed, the word 'school' was written on the plot of each of the seven lots; but whether made as early as 1819, or afterwards, does not appear; nor, whether the then register (Wood) put the designation there by order of the Secretary.

It is admitted that the school commissioners took possession of the land sued for in 1834, and have held it ever since by their lessee; and it is also admitted that township nine, range eleven, which claims the lots marked 'school,' is without school lands, unless the lots thus designated belong to it as such.

On the return made of the surveys to the General Land Office in 1818, there is no indication that a reservation of any land was made for township nine, range eleven.

The manner in which the Secretary should authenticate his selections was not prescribed by Congress, and depends in this case on evidence not found of record. It must be proved by circumstances, and cannot be proved in any other way.

Another consideration is pressed on the court, on the part of the plaintiff, to overcome the fact that this designation is of no value, to wit: that the Secretary of the Treasury, by his letter of July 13, 1805, directed land equal to one section on the southern part of the donation tract to be laid off as compensation for section sixteen, in township five, range ten, the school tract in township five having been otherwise appropriated; and hence it happened, as is alleged, that the register marked the lots in controversy 'shool.' In 1805, the lots thus marked had not been surveyed, and each one-hundred-acre lot is marked on the tract book of surveys returned in 1818; and as the trustees took the school land for township five, range ten, elsewhere, the argument has not much force.

It is also insisted that, in point of fact, the entire section No. 16, in township nine, range eleven, remained undisposed of by the Ohio Company, and was subject to be appropriated by the commissioners of the township for school purposes; and, therefore, no claim could be set up by them to lands elsewhere. The act of April 30th, 1802, section 7, provides that the 16th section of every township shall be granted to the inhabitants of the same for the use of schools. But, then, the 16th section is a designated portion of land that may result from an execution of the public surveys made by the United States, according to the rules and regulations Congress had made or might make. Until ranges were established, and the lands surveyed into townships and sections, no title to any definite land vested in the township. It had no authority to survey and ascertain the 16th section. This authority was reserved exclusively to the United States, and to be exercised as part of the political power. Now, as the 16th section of township nine, range eleven, never was legally ascertained, and as no other evidence could be heard to fix its identity than a survey approved by the department, established for the distribution and sale of the public lands, the assumption that the land was unappropriated where the 16th section would have fallen, had a survey in fact been made of the township, amounts to nothing. Cases affecting school lands, in Ohio and elsewhere, come under the rule laid down in the noted case of General Green's grant of twenty-five thousand acres, in the military district of North Carolina, (2 Wheat., 19.) The Legislature of that State made the grant by an act of Assembly; having made it, it reserved the power to locate the land by survey through its officers. The land being surveyed, and the survey returned and recorded in the proper land office, it was held by this court that the title attached to the land designated, on the obvious legal ground that the State of North Carolina was estopped to disavow its own act in defining by survey the precise land granted; and so, also, General Green and his heirs were estopped to call in question the validity of the definite location, the authority to locate by survey having been reserved by the granting power. So, here the granting power reserved the right to ascertain and identify the land granted to the schools. Until this was done, no title could be taken of any particular tract; and when the location was made by authority of the United States, each party was estopped to deny its binding force. It was, in fact, a title by mutual estoppel.

We now come to the precise case presented on the trial be low. The jury were instructed:

1. 'That the proofs and legal presumptions sustaining the title of the defendant must have reference solely to, and be based upon, the act of Congress, approved March 18, 1818, entitled 'An act providing for the sale of certain lands in the district of Marietta,' &c., in connection with the act of the 21st of April, 1792, granting to Rufus Putnam and others, as agents and trustees, one hundred thousand acres, called the donation tract; and that, in the absence of any express authority to any other officer to make the selection of school lands in said donation tract, by a fair construction of said act of 1818, the register of the land office at Marietta rightfully exercised such authority.'

2. 'That all the evidence and admissions of facts in the case raised a legal presumption that the said register of the land office at Marietta had exercised the authority so vested in him by said act of March 18, 1818, prior to the entry and patent under which the plaintiff claims title, by legally selecting the lands in controversy in this suit (with other lands) for the support of schools in said township nine, in range eleven, and it was therefore their duty to return a verdict for the defendant.'

The first instruction assumes that the act of 1818 authorized the register to select the school lots in the donation tract; whereas the third section of the act of March 3, 1803, conferred the exclusive power on the Secretary of the Treasury, and therefore the instruction is erroneous.

The second instruction declares that the evidence and admissions of facts in the case raised a legal presumption 'that said register had exercised the authority vested in him by the act of 1818, prior to the entry and patent under which the plaintiff claims title,' &c.

As the register had no power to select, it could not be held that he had legally selected; nor did he make the entry on the tract book in due form, had he been instructed by the Secretary to record his selection.

The word 'school,' appearing on the tract book, has much significance; but, standing alone, it did not authorize the Circuit Court to presume, as matter of law, that the lands had been selected by order of the Secretary. If his letter to the register, directing him to make the selection, had been produced, and taken in connection with the designation, then we think the court would have been warranted in making the legal presumption.

The narrow point in this cause is, Did the Secretary select the land in controversy (with other lots) for the use of schools? If he did, then the title of the United States was divested thereby, and the lands withdrawn from sale. There are unmerous facts tending to prove that they were selected. 1st. They were not sold, nor is it at all probable that they were offered for sale, in 1819. If they are of good quality, and favorably situated, a jury may be satisfied that, had they been affered to bidders at the public sale, they would have been purchased. 2d. They were claimed as school lands, selected for township nine, range eleven. 3d. The trustees for the township took possession of them, and leased them out as early as 1834; and their tenant is yet in possession, and here sued. 4th. The endorsement, on the plat of the lots, of the word 'school,' indicates, to some extent, that they had been selected by the proper authority. What weight this may have, it will be proper to leave to the jury. 5th. That this township had no school lands assigned to it, unless the lots referred to were assigned.

These facts, with others, were proper to be submitted to the jury, from which they might have presumed that the lots had been duly selected.

In the language of the Supreme Court of Ohio, in the case of Coombs and Ewing v. Lane-'Facts presumed are as effectually established as facts proved, where no presumption is allowed.' That was a suit for the possession of this same land, and involved the same evidence this case does, the presented the same questions of law. But there, the cause was submitted to the Circuit Court on the law and the facts, without the intervention of a jury; and the Supreme Court was appealed to in order to reverse the opinion of the lower court, on a motion for a new trial. The State courts dealt with both facts and law; whereas, here, the jury must deal with the facts and presumptions, under the instructions of the court, as respects the law.

We order the judgment of the Circuit Court to be reversed, and remand the cause for another trial.

title: Doe v. Mahana/Opinion of the Court


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

title: Talk:Doe v. Mahana/Opinion of the Court


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Hill v. Smith (62 U.S. 283)

THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Indiana.

It was an action brought upon the contract recited in the opinion of the court, to which there was a general demurrer, which was sustained by the Circuit Court.

Hill, who was the plaintiff, then brought the case up to this court by a writ of error.

It was submitted on a printed argument by Mr. O. H. Smith for the plaintiff in error, no counsel appearing for the defendants.

Mr. Smith made the following points

First. That the Circuit Court erred in sustaining the demurrer to the first and second counts, and each of them; to sustain this position, we rely upon the positions above, and authorities cited, to sustain the third, fourth, fifth, sixth, seventh, and eighth points.

Second. That the court erred in sustaining the demurrer to the whole declaration, if there be one good count, or part good of a divisible count.

1 Chitty, p. 665, Ed. 1855, notes c(3) and authorities.

Third. The guaranty set out in the first and second counts was an original undertaking of the appellees, and is binding in law.

4 Maule and Selw., 66; 8 East., 231.

1 Johns. R., 362; 1 Parsons on Con., 480.

2 Howard, 450; 12 East. R., 227.

Cowper R., 714; Chitty on Con., 80, 81.

1 Parsons on Con., 495.

6 E. C. L. R., 32; 41 E. C. L. R., 848.

1 How., 187; 10 Pet., 493.

Fourth. The whole contract set out in the first and second counts being in writing, and founded upon a sufficient consideration, was obligatory upon the parties.

10 Moore R., 395: 3 Bing. R., 107.

8 Cush. R., 159; 15 Penn. St. R., 156.

Fifth. Suppose the undertaking of the appellees to be collateral to a contract of the railroad company, the undertaking or guaranty is valid in law, and binding on the appellants.

2 How. R., 426; 7 Cranch R., 69.

10 Peters R., 482; 7 Peters R., 122.

10 Moore R., 395; 3 Bing. R., 3, 107.

14 Illinois R., 237; 15 Penn. St. R., 27.

2 Story on Con., p. 400, sec. 862, and authorities cited, Ed. 1857.

17 Peters R., 161; 5 B. and Ad., 1109.

Mood. and Al. R., 394.

Sixth. Neither the railroad company nor their guarantors can set up the illegality of their executed contract, either at law or in equity, without placing the parties in statu quo.

4 Blackf., 515; 5 Blackf., 441.

7 Blackf., 55; 8 Blackf., 409, 469.

Adams Equity, 191.

1 Story on Con., p. 601, sec. 497, note 2, Ed. 1857.

Hill on Trustees, p. 221, Ed. 1857.

Seventh. The third count sets out an original, independent contract between the appellant and the appellees, founded upon a sufficient consideration, and the facts being admitted by the general demurrer, raising no question as to the form, is valid in law, and the demurrer to the whole declaration should have been overruled.

1 Parsons on Con., 497, and authorities.

37 E. C. L. R., 120; 2 McLean, 103.

3 McLean, 387; 1 Story on Con., p. 530, sec. 431.

Ib., p. 544, sec. 551.

Eighth. The undertaking of the appellees is valid and binding, whether an action could be maintained against the railroad company or not.

1 Burr. R., 371; 1 B. and Ald., 297; 15 E. C. L. R., 47.

1 Stark. R., 14, 19; 2 E. C. L. R., 16, 18.

Mr. Justice GRIER delivered the opinion of the court.

title: Hill v. Smith (62 U.S. 283)


text: Talk:Hill v. Smith (62 U.S. 283)

title: Talk:Hill v. Smith (62 U.S. 283)


text:
Page:Copyright, Its History And Its Law (1912).djvu/182

 chancery, on compliance with the first requirement of the prescribed process, it must be perfected by complying with the other requisites before a suit at law for violation of copyright can be maintained.

A false or unjustifiable entry of copyright may be expunged from the registry by court order, as was done in the English case Re Share Certificate Book in 1908.

The statutory formalities of copyright in other countries vary greatly. In Great Britain copyright has been secured by first (or simultaneous) publication within the British dominions or under the "international copyright act." The law provided that a copy of the best edition of a book must be deposited in the British Museum, this giving basis for proof of publication, which deposit must be made within one month after publication if published within London, three months elsewhere in the United Kingdom, and one year in other parts of the British dominions; the failure to deposit did not forfeit copyright, but involved a fine ; but under the international copyright provisions, deposit in the British Museum of a colonial or foreign work was not required, though useful as prima facie evidence of publication. Four other copies of domestic books must be supplied to the universities of Oxford, Cambridge, Edinburgh and Dublin if demanded within twelve months from publication. Registration at Stationers' Hall was necessary for books only as a prerequisite to an action at law against infringement, but was obligatory in the case of paintings, drawings and photographs. Copyright notice on a book was not required except to reserve the right of representation of a dramatic work, etc., though it has been customary for English publishers to print the phrase "All rights reserved" as the equivalent to the copyright notice. But copyright notice was


text:
Hill v. Smith (62 U.S. 283)/Opinion of the Court

The plaintiff's demand is founded on the following contract, dated August 17th, 1853, signed by defendants, and set forth at length in the declaration: 'Whereas Henry Hill, of Delaware county, has proposed to convey to the Cincinnati, Newcastle, and Michigan Railroad Company a certain tract of land in Delaware county, containing three hundred and nine acres, for the consideration of six thousand one hundred dollars, to be paid in the capital stock of said company, at par, on the condition that Caleb Smith and other responsible persons will guaranty that the said stock shall be worth par in three years from the present date, and in default thereof, that the company shall make it up to par; and whereas the said Cincinnati, Newcastle, and Michigan Railroad Company have agreed by a resolution of their board of directors to accept said proposition: Now, we, the undersigned, in consideration of the premises, hereby guaranty to the said Henry Hill, that the said stock shall be worth par in three years from the date of this instrument; and if at the expiration of that date said stock shall not be worth par, we guaranty the said Henry Hill that the said Cincinnati, Newcastle, and Michigan Railroad Company shall make up to him or pay him whatever sum the said stock shall be worth less than par, so as to make the said stock worth par to said Henry Hill at that date.'

The declaration is in proper form, and contains all the averments necessary to show a breach of this contract, and the consequent liability of defendants.

There was a general demurrer to the declaration and judgment for the defendants.

As we have not been furnished with an argument on behalf of defendants, we are at a loss to discover on what grounds it is supposed that this judgment can be supported.

As the contract is in writing, signed by the parties to be charged, it cannot be affected by the statute of frauds; and, although the term 'guaranty' is usually applied to a collateral undertaking to pay the debt of another, yet when taken in connection with the other terms of the instrument, this is clearly an original, independent contract. If it had been under seal, the term covenant would have been the technical synonym for the word 'guaranty' as here used.

It states that the defendant would not agree to sell his land in exchange for stock, except on condition that defendants should guaranty that the stock in three years would be worth par, or should be made so by the corporation. For this consideration, defendants agree to make it so, or, in other words, to pay the difference between the cash value of the stock on that day and its nominal value.

On this condition and for this consideration, the plaintiff agreed to convey his land to the railroad company; and, on the faith of defendants' undertaking, he had conveyed it, and accepted, not money, but certain stock, which defendants have agreed to make equal to money by a certain day. The declaration avers, that at the time specified the stock was wholly worthless, and of no value, and the railroad company utterly insolvent, and unable to pay the difference; and that defendants, having full notice of these facts, refuse to comply with their contract.

There is no reason why this contract should be treated as void because of an illegal or immoral consideration. Its conditions require no previous suit to be instituted against any one as principal debtor. The declaration contains every necessary averment: a valid contract, a large consideration paid, and a breach of the contract by defendants; all set forth in proper and technical language.

The plaintiff in therefore entitled to judgment on the demurrer, unless the court below, in their discretion, shall permit the defendants, on payment of costs, to withdraw their demurrer, and plead some good defence in bar.

The judgment of the court below is reversed, and record remitted for further proceedings.


text: Talk:Hill v. Smith (62 U.S. 283)/Opinion of the Court


text:
Ford v. Williams

[MR. JUSTICE WAYNE DID NOT SIT IN THIS CAUSE.]

title: Ford v. Williams


text: Talk:Ford v. Williams

title: Talk:Ford v. Williams


text:
Ford v. Williams/Opinion of the Court

THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Maryland.

Ford lived in New York, and brought an action against John S. Williams & Brother upon the following contract:

BALTIMORE, October 31, 1855.

For and in consideration of the sum of one dollar, the receipt whereof is hereby acknowledged, we have this day purchased from John W. Bell, and agree to receive from him in all the month of February next, at his opinion, two thousand barrels Howard street super flour, we paying for the same at the rate of nine dollars per barrel, on the day the said flour is ready for delivery.

JOHN S. WILLIAMS & BRO.

Upon the trial in the court below, much evidence was given which it is not necessary to recite in the present aspect of the case. The court, on the application of the defendants' counsel, instructed the jury that, upon the above contract, Ford could not recover. The only question in the case was whether, assuming the contract to have been made for the benefit of the plaintiff, without any disclosure to the defendants of his interest, he was competent to maintain a suit in his own name.

It was argued by Mr. Brown for the plaintiff in error, and by Mr. Nelson for the defendants.

The case of the New Jersey Steam Navigation Company v. The Merchants' Bank (6 Howard, 381) was considered to be decisive of the question.

There is no marginal note in the report of that case, showing that the point was made. The reason was, that there were eight judges upon the bench, only three of whom concurred with Mr. Justice Nelson in the opinion which he delivered, although Mr. Justice Woodbury concurred in the judgment. There being no opinion, therefore, of the court, as such, the reporter did not think himself authorized to insert in his head note all the points ruled in the opinion delivered by Mr. Justice Nelson.

Mr. Justice GRIER delivered the opinion of the court.

The single question presented for our decision in this case is, whether the principal can maintain an action on a written contract made by his agent in his own name, without disclosing the name of the principal.

It is not necessary to the validity of a contract, under the statute of frauds, that the writing disclose the principal. In the brief memoranda of these contracts usually made by brokers and factors, it is seldom done. If a party is informed that the person with whom he is dealing is merely the agent for another, and prefers to deal with the agent personally on his own credit, he will not be allowed afterwards to charge the principal; but when he deals with the agent, without any disclosure of the fact of his agency, he may elect to treat the after-discovered principal as the person with whom he contracted.

The contract of the agent is the contract of the principal, and he may sue or be sued thereon, though not named therein; and notwithstanding the rule of law that an agreement reduced to writing may not be contradicted or varied by parol, it is well settled that the principal may show that the agent who made the contract in his own name was acting for him. This proof does not contradict the writing; it only explains the transaction. But the agent, who binds himself, will not be allowed to contradict the writing by proving that he was contracting only as agent, while the same evidence will be admitted to charge the principal. 'Such evidence (says Baron Parke) does not deny that the contract binds those whom on its face it purports to bind; but shows that it also binds another, by reason that the act of the agent is the act of the principal.' (See Higgins v. Senior, 9 Meeson and Wilsby, 843.)

The array of cases and treatises cited by the plaintiff's counsel shows conclusively that this question is settled, not only by the courts of England and many of the States, but by this court (See New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How., 381, et cas. ib. cit.)

The judgment of the court below is therefore reversed, and a a venire de novo awarded.

title: Ford v. Williams/Opinion of the Court


text: Talk:Ford v. Williams/Opinion of the Court


text:
Lownsdale v. Parrish

THIS was an appeal from the Supreme Court of the Territory of Oregon.

The facts are stated in the opinion of the court.

It was argued by Mr. Gillet and Mr. Johnson for the appellants, and Mr. Baxter for the appellee.

The arguments of the counsel were directed chiefly to the merits. On the point of jurisdiction, Mr. Baxter gave an account of the singular spectacle exhibited by the American settlers in Oregon, who established a provisional Government amongst themselves, whilst the entire Territory was still in the joint occupancy of the United States and Great Britain. Mr. Baxter then referred to the act of Congress passed on the 14th of August, 1848, (9 Stat. at L., 329,) which contained the two following clauses, viz:

'And the existing laws now in force in the Territory of Oregon, under the provisional Government established by the people thereof, shall continue to be valid and operative therein, so far as the same be not incompatible with the Constitution of the United States, and the principles and provisions of this act.

'But all laws heretofore passed in said Territory, making grants of land, or otherwise affecting or encumbering the title to lands, shall be and are hereby declared to be null and void.'

Mr. Baxter examined the whole law, and inferred that its true construction was to declare the existence of such general laws of the United States in Oregon as might be executed by the judicial and executive authorities thus created, or such general authorities as then existed over the whole territory of the United States, but did not intend to extend over Oregon such special legislation as required special organization, not then existing in the Territory, to execute them. And when this town was laid off, the land law of Oregon had assured quiet possession of the tract of 640 acres to Pelligove and Lovejoy, and those claiming under them, as long as the provisional Government continued. That all purchasers of town lots from these proprietors obtained a title to their lots, and the easements connected with them, grafted on, springing out of, and sustained by, the right of possession under the provisional Government; and the contracts for sales and purchase of these lots under the provisional Government were valid.

That the 17th section of the law establishing the Territorial Government affirmed these contracts, and they were valid and in force under the laws of the Territory. And there is nothing in the 6th or 14th sections of the act of 1848 inconsistent with this. This suit having been commenced before the passage of the land laws of 1850, must be decided on the laws of the provisional Government and the Territorial Government, and it was the duty of the courts of equity to preserve the rights of the parties as they stood under the laws of the provisional Government and the Territorial Government, and to enjoin all irregular proceedings in violation of those rights, until titles were granted by the Government of the United States, under the land laws of the United States.

Mr. Justice CATRON delivered the opinion of the court.

title: Lownsdale v. Parrish


text: Talk:Lownsdale v. Parrish

title: Talk:Lownsdale v. Parrish


text:
Lownsdale v. Parrish/Opinion of the Court

Parrish filed his bill in equity against Lownsdale and others in a District Court of Oregon Territory, praying for an injunction to restrain the defendants from obstructing a narrow piece of land, claimed as Water street, lying in front of the complainant's storehouse, and a square of ground claimed as his, two hundred feet on each side, laid off into eight lots, as city property, within the city of Portland, and on one of which the storehouse stands. The strip of land lying in front of these lots extends to the Wallamette river; at that point, the land is several hundred feet wide. The complainant alleges that it was dedicated to the public as a street, to the use of the proprietors of the town, for the purposes of commerce; the river there being within the flow of tide, navigable for ships, and requiring a wide front space to accommodate loading and discharge of cargoes.

The District Court found that Water street, in the city of Portland, was bounded by the river, opposite the lots of the complainant; and that the defendants at the commencement of the suit were about to obstruct the same, to the special injury of the plaintiff, as stated in the bill; and thereupon an injunction was granted, as prayed for. This decree was affirmed in the Supreme Court of Oregon, where the respondents carried the cause by appeal, and from that decree they have appealed to this court, and we are called on to revise the proceedings below.

The first question presented is, whether this court has jurisdiction and power to re-examine the controversy.

By the act of Congress organizing the inhabitants of Oregon Territory into a Government, it is provided (sec. 9) that writs of error and appeals from final decisions of the Supreme Court of Oregon shall be allowed to the Supreme Court of the United States, where the value of the property, or the amount in controversy, shall exceed two thousand dollars, to be ascertained by the oath of either party, or by a competent witness; and also in cases 'where the Constitution of the United States, or an act of Congress, or a treaty of the United States, is brought in question.'

The complainant assumes that he would sustain special damage by the obstruction of the space between his property and the river, but how much damage does not appear from the allegations in the bill, or otherwise; and it is difficult for us to see how either party to the suit could sustain damage to his rights of property, as the town was laid off in 1845, on property of the United States, whilst our inhabitants who had emigrated there, and those of Great Britain, held joint possession of the country in virtue of the treaty between the two nations of October 20th, 1818, (art. 13,) which was continued in force by the convention of August 6th, 1827.

In June and July, 1845, the people of Oregon Territory, 'for mutual protection, and to secure peace and prosperity among themselves,' elected delegates, who met in convention, and adopted laws and regulations for their government, 'until such time (say they) as the United States of America extend jurisdiction over us.' In this plan of Government, it is provided that any one wishing to establish a claim to land shall designate the extent of his claim by line-marks, and have it recorded in the office of the Territorial recorder; the claim not to exceed a mile square, or 640 acres. The description of claim under which the complainant and the respondents set up title is founded on this regulation. By the treaty of 15th June, 1846, the line dividing our possessions and those of Great Britain west of the Rocky Mountains was concluded; and on the 14th of August, 1848, Congress passed an act to establish the Territorial Government of Oregon, in which the laws then existing under the provisional Government (established by the people) are continued, and declared to be operative until altered. 'But (says the act, sec. 14) all laws heretofore passed in said Territory, making grants of land, or otherwise affecting or encumbering the title to lands, shall be, and are hereby declared to be, null and void.' Congress passed no law in any wise affecting title to lands in Oregon Territory till September 27, 1850; and the bill in this case was filed July 29, 1850, so that, when the litigation commenced, neither party to the suit had any title to or interest in the land whatever; and therefore the respondents and appellees could not sustain injury by being enjoined not to erect buildings on lands belonging to the Government in which they had no interest. It is proper to remark here, that we have nothing to do with, nor can we notice, rights acquired to this property by acts of Congress passed subsequently to the origin of this controversy.

Neither the Constitution of the United States, nor an act of Congress, or a treaty, was 'brought in question' in the lower court; neither side could have legitimately raised such a question, and called for its decision; and to give this court jurisdiction of the case, in this instance, the question must have been raised and decided in the lower courts, and it must so appear on the record. (16 Peters, 281.)

Being of opinion that there is no jurisdiction in this court to examine and revise the decree of the Supreme Court of Oregon, we order the appeal to be dismissed.


text: Talk:Lownsdale v. Parrish/Opinion of the Court


text: Morehouse v. Phelps

title: Morehouse v. Phelps


text: Talk:Morehouse v. Phelps

title: Talk:Morehouse v. Phelps