text:
Ingle v. Jones

APPEAL from the Supreme Court of the District of Columbia; the case being this:

By certain ancient statutes of Maryland, in force within the District, it is enacted that in suits against an administrator he need not plead plene administravit, nor anything relative to assets; and that he shall not be burdened further than these have come to his hands; but that after verdict against the administrator, the court shall assess the pro rata which he ought to pay; and to do this the court is authorized 'when the real debt or damages are ascertained (meaning by verdict or confession) to refer the matter to an auditor, to ascertain the sum for which judgment shall be given.' In case the judgment shall be for a sum inferior to the real debt, it shall go on and say, 'that the plaintiff is entitled to such further sum as the court shall hereafter assess on discovery of further assets in the hands of the defendant.'

These statutes being in force-and the 69th of the Equity Rules set forth by this court for the governance of courts below in equity causes, prescribing that 'three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court or a judge thereof shall, upon special cause shown by either party, enlarge the time'-Zephaniah Jones, a builder, entered in 1851 into a contract with Miss Ann R. Dermott for building her a large house in Washington; she agreeing to pay him $24,000 for his work; parts of the sum to be paid as the building advanced. The house was so far built as to be ready for delivery in May, 1852, and it was delivered to Miss Dermott accordingly; its yearly rental being subsequently estimated at from $7000 to $8000. Before the completion of things on either side, misunderstandings arose, and Miss Dermott refusing to pay the balance claimed by Jones, he sued her to recover it. The suit was earnestly contested; technical objections being raised wherever they could be set up. Jones obtained a verdict and judgment, but it was reversed here on objections of this kind. Being thus sent back he then obtained a second verdict and judgment, which was reversed on like grounds. Settlement of the claim was thus greatly protracted.

In the progress of the contest Miss Dermott departed this life, leaving debts; leaving the house which Jones had built and the ground on which it stood (her chief realty), some (not very considerable) personalty, and a will of a peculiar kind.

By this will she appointed eight executors, one of them being a certain John P. Ingle. The executors and their survivors, in the performance of the 'powers, commissions, charges, functions, and duties,' which she gave them along with 'the exclusive care, management, and stewardship of her estate,' were to have its entire management and control during an uncertain time named by her. They were to rent the real estate, and out of the rents and the personal estate, not otherwise disposed of, were to pay her funeral expenses, and her other debts, without regard to limitations of time, 'if found according to their best judgment really due in conscience;' to pay several legacies, and to pay also an annuity, while their duties were executing, though after the execution accomplished, it was to be a charge on the estate; they were to pay all such debts of her brother, contracted by him in a place and within a time named, as they should, 'according to the best of their judgments and discretions, deem due in conscience, and no other debts or pretended debts of his contracting.' They were authorized to sell certain lots in an old cemetery, and to buy others in a new one, and to build there a vault to receive her remains. The power was given to mortgage her real estate, if found necessary to pay debts. After the debts and legacies were all satisfied the entire estate was to be delivered over to twenty trustees, named in the will, one Stringfellow being the first named, to whom and their heirs it was devised for a charity described; a charity, however, which now was confessedly void, and which could not be enforced as against her heirs.

All the persons named as executors declined to act except one of them, John P. Ingle, already named. He, however, after taking letters and defending against Jones's suit, but not wholly settling the estate, died during the progress of the controversy; thus leaving no executor to the will. Miss Dermott had provided in that instrument that if the surviving executor should die while the trusts were yet executory, the execution of her will, &c., 'shall not devolve upon the executor of such deceased executor, but upon such person or persons as the vestries of St. John and Trinity Churches may elect to go on and complete this will in so far as the execution thereof is committed to my said executors, and that proper letters of administration with the will might be granted by the court or authority competent for the purpose, to the person or persons so elected.' But the vestries of the two churches named by Miss Dermott did not elect and one in pursuance of her will to take his place, and the court in Washington competent for that purpose, acting under a statute which authorized the appointment of such an administrator, but was silent as to the powers which such a representative of the decedent shall have, appointed one John H. Ingle, administrator de bonis non, with the will annexed.

Against this administrator de bonis non, &c., Jones finally, in 1865, and after fifteen years' prosecution of his suit, obtained a judgment. The record entry of it was 'for $20,136, with interest from April 5th, 1852, with costs, to be levied of the goods and chattels which were of the said Ann Dermott at the time of her death, which have come, or at any time hereafter shall come, to the hands of the said John H. Ingle, to be administered, if such goods and chattels be sufficient to discharge said damages and costs and all other just claims against the same; and if not sufficient, then said damages and costs to be levied of said goods and chattels ratably with all other just claims against the same.' The record proceeded:

'And, because it is unknown to the court here whether all or only such ratable part of said damages and costs ought to be so levied, it is referred to the auditor to inquire thereof, according to the statute in such case made and provided, and report accordingly.'

The auditor reported that there were no assets in Ingle's hands which could be applied to payment of the debt. Jones thereupon filed a bill in equity in the court below-the bill to the decree on which the present appeal was taken-to subject the testator's real estate to the payment of the judgment. And the complainant alleging that Ingle, being administrator of the unadministered personalty only, had no concern with the realty, the court appointed a receiver, one Wilson, to take charge of it, and to receive the rents.

The bill thus now brought, made Ingle administrator, &c., and Hoe and several others, heirs-at-law of Miss Dermott, and Stringfellow with other trustees, parties defendant. The former denied the justice of the demand, and pleaded the statute of limitations. Hoe and some others filing their answers, confessed its validity, did not plead the statute, and agreed to the sale of the realty as prayed for. And against Stringfellow and the trustees the case went by default.

The cause was put at issue on the 6th of March, 1866. The 69th rule in equity, as already stated, allowed the parties three months thereafter to take their testimony. The complainant began the taking of his on the 14th of that month. Between that time and the 23d, inclusive, he examined nine witnesses; the complainant's counsel, to whom notice had been given, appearing and cross-examining those of them whose testimony was the most important. An adjournment was ordered by the examiner, from the 23d of March until the 2d of June. A deposition relating to a formal matter was then taken, and the complainant's counsel announcing that he had closed the examination of witnesses on his part, the examiner on that day (four days yet remaining of the three months) sealed up the depositions and transmitted them to the court; no objection being at this time made by the defendants.

A side issue, made also about this time, must here be referred to. It has been mentioned that the answers of the heirs-at-law admitted the justice of Jones's claim, and assented to the granting of his prayer for satisfaction from the realty. On the 23d of May they filed a petition, setting forth that these answers were obtained from them by fraud practised upon them by an emissary of Jones, and asking leave to withdraw those answers, and to file answers de novo. The particulars of the case were given by them. Jones answered, denying them; but the issue having been one of fact, there is nothing in it worthy of report, further than that the particular matter was set down for hearing on the 11th of June, and that on the 14th the court, refusing to allow the withdrawal prayed for, dismissed the petition asking it.

Returning now to the main case. Six days before this dismissal-that is to say, on the 11th of June, and still, therefore, before the three months for taking testimony had completely expired-the court set down the motion for publication of the testimony on the 8th of June, 1866, and on the same day set down the cause for hearing at the then term; the petition to take the answers off the file being still not passed on and pending. On the 10th of June, the defendants gave notice that they would take testimony on the 19th of the month, and filed objections against the case being heard at the then term, and showing afterwards as cause that no sufficient opportunity had been allowed to them to take rebutting testimony, after the evidence in chief on the part of the complainant was closed on the 2d of June, and because none was allowed the defendants, heirs-at-law, to take evidence in support of the allegations of their petition, filed May 23d, for withdrawal of their answers. The court below, however, heard the case, and on the 3d of July, 1866, finding the amount due to the complainant, and that it was necessary to sell the real estate described in the bill to pay it, ordered the premises to be sold, and the proceeds to be held subject to the further order of the court. From this decree it was that Ingle now appealed.

Messrs. R. J. and J. L. Brent and S. L. Phillips, for the appellant:

1. By the old statutes of Maryland which regulate the subject, no judgment can be rendered against an administrator until it is judicially ascertained, on an auditor's report or otherwise, that there is, or is not, any assets in hand, and when this fact is ascertained, the judgment is entered and moulded accordingly. The true entry and form of making up of the record, in such a case as this was, is shown in Harris's Entries, in which old and approved book of precedents, it will be seen that there is no entry even of an interlocutory judgment on a confession of the debt (or by analogy on a verdict establishing it), until the auditor's report is made. There was thus in law no judgment whatever on this verdict.

2. Did the administrator de bonis non with the will annexed, who sets up the illegality of the claim and also the statute of limitations, succeed to the trust estate vested in the executor, these trusts being yet unexecuted when that executor died? No doubt the testatrix contemplated the occurrence of two events, viz., the nomination by the vestries, and its ratification by the Orphans' Court. But she has failed to say what her intention was in case the Orphans' Court appointed a person, upon the failure of the vestries to nominate. Did she mean to let the great trusts of her will fail in this last case? Certainly not. We must therefore construe her will as containing two intents-first, a particular intent that her administrator should be named by the vestries; secondly, a general intent, that her administrator, however appointed, should be the trustee. If so, and both intents cannot be gratified, the rule is to construe the will upon the cy-pres doctrine, and sacrifice the particular intent, which in such case is construed as merely directory and not imperative. If this court takes that view, we are let into both defences. Of course, if our view is right, the appointment of a receiver was improper. [The counsel then went into these points.]

3. The answers of the heirs-at-law of Miss Dermott were obtained by contrivance and fraud, and should have been taken off the files, that they might answer de nove. [The counsel then argued this point.]

4. The court erred in ordering publication, and refusing to allow the defendants to take evidence on the merits. The complainant consumed the three months by his evidence in chief, and then announced it closed, and on the same day had it filed and moved for publication. The defendants in vain excepted, and prayed for an extension of time (under the 69th rule) to rebut the testimony taken; but the court below held that we were in fault for not taking testimony pari passu with the complainant. The action of the commissioner in closing and sealing the depositions, on the 2d of June, cut us out of four days of the three months during which we were entitled to take testimony; and even if we had served a notice de novo to take it, such had been the course of the other side that the time would have been too short for us. We were at any rate clearly entitled to keep the depositions open for four days to examine any witnesses we chose.

Then on the 5th of June, before the three months had expired, the court set down the motion for publication of the testimony on the 8th of June, 1866, and on the same day the cause was set down for hearing by order of the court. The petition to take answers off file was still pending, and the defendants could not take evidence while pleadings were being perfected. If they had gone on to take it under those disputed answers, it would have prejudiced their petition to take them off the file. In addition, the defendants could not know what rebutting evidence to adduce until the complainant closed his case on the 2d of June, 1866.

This particular error of the court below was a great one, for it saps the foundations of justice, by paralyzing all attempts at defence.

5. The decree was erroneous on its face. Without any reference to the anditor to report what other debts than Jones's existed, it decrees the sale of the whole real estate; omitting to adjudicate the amount or insufficiency of the personal estate, so as to subject the realty to the payment of the deficiency for which it was only responsible.

Messrs. Davidge and J. H. Bradley, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Ingle v. Jones


text: Talk:Ingle v. Jones

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

title: Talk:Ingle v. Jones


text:
Ingle v. Jones/Opinion of the Court

This is an appeal in equity from the decree of the Supreme Court of the District of Columbia. The record is voluminous, and contains numerous exhibits, and much of detail, which we have not found it necessary to consider. The material facts lie within a narrow compass, and the questions presented for our determination are neither numerous nor difficult of solution. On the 22d of April, 1851, the testatrix and the appellee entered into a contract for the erection by the latter of a large building in the city of Washington. She was to pay for the structure the sum of $24,000; $5000 on the 1st of July, 1851; $5000 on the 1st of October following, provided certain parts of the building were then ready for occupation; and the remaining $14,000 on the 1st of January, 1860, with interest, as stipulated. The first instalment was duly paid. Nothing has been paid since. Possession of those parts of the building to be first completed was delivered in December, 1851, and of the residue in April, 1852. In May, 1852, Jones sued for the instalment due on the 1st of October, 1851, and recovered. The judgment was reversed by this court. The declaration was then amended by withdrawing the special counts and enlarging the ad quod damnum to $40,000, and a verdict and judgment were recovered for $22,149, and interest. This judgment was also reversed. The case was again tried, and a verdict and judgment were recovered for $20,136.23, with interest from the 5th of April, 1852. The auditor of the court was directed to ascertain the amount of assets in the hands of Ingle, the administrator, which could be applied in payment of the debt. He reported that there were no assets available for that purpose. Jones thereupon filed this bill to subject the real estate therein described to the payment of his demand.

It is insisted by the counsel for the appellants that the judgment is erroneous in form, and is, in fact, only interlocutory. This objection is well taken. According to the statutes of Maryland, which are in force in the county of Washington, the judgment, under the circumstances, should have been entered only for assets as they should thereafter come into the hands of the administrator. But this fact is immaterial. The case is governed by the local law. That law makes the proceeding against the administrator and the heir, when the latter proceeding is necessary, entirely independent of each other. The duties of the administrator are confined to the personal estate, and never extend beyond it. If that be insufficient to discharge the debts, and it be necessary to resort to the realty of the deceased for that purpose, a proceeding against the heir must be instituted. In that event, whatever has been done by the administrator is without effect, as to the property sought to be charged. A judgment against the administrator is not evidence against the heir. The demand must be proved in all respects as if there had been no prior proceeding to effect its collection, and the statute of limitations may be pleaded with the same effect as if there had been no prior recovery against the personal representative.

We have examined with care the proofs in the record of the complainant's demand as set forth in the bill, and are satisfied with the amount found by the decree. It could be productive of no good to vindicate this view of the subject, by entering into an analytical examination of the testimony. We are not unmindful of the length of time through which the complainant has been pursuing his remedy, nor of the verdicts which have been rendered in the trials at law. They were the results of vigorously contested litigation, after the most elaborate preparation of the case. Nor are we unmindful that the court below, in the case before us, came substantially to the same conclusion. Our judgment, however, has been formed upon grounds wholly apart from these considerations. If the question were res integra in this case, and now for the first time to be passed upon, we should have no difficulty in sustaining the decree. We think the full amount found by the court is justly due.

Ann R. Dermott, by her will, appointed eight executors, and clothed them with important powers and duties. They were to have the entire management and control of the estate during the uncertain time specified. They were to rent out the real estate. Out of the rents and the personal estate, not otherwise disposed of, they were to pay her debts, without regard to limitation of time; to pay her funeral expenses; several legacies, amounting in the aggregate to between $3000 and $4000; to pay an annuity of $400, while their duties were executory, after which it was to be a charge upon the estate; they were to pay, in their discretion, certain debts of her brother; they were to build a vault to receive her remains, and they were authorized to sell two cemetery lots. The power was given to mortgage, if found necessary to pay debts. After the debts and legacies were all satisfied, the entire estate was to be delivered over to twenty trustees, named in the will, to whom and their heirs it was devised, to enable them to found and support a female orphan asylum. The beneficiaries were to be such destitute white orphans as the trustees, or any corporation which might succeed them, should select. The provision for this charity is admitted on both sides to be void. The statute of the 43d Elizabeth never was in force in Maryland. The trust resulted for the benefit of the heirs-at-law. All the persons named as executors declined to act, except one of them, John P. Ingle, who qualified, and took out letters testamentary. He died, whereupon the defendant, John H. Ingle, was appointed administrator, with the will annexed. The will provides, that if the surviving executor should die while the trusts are executory, their execution should devolve upon such person or persons as the vestries of St. John and Trinity Churches should elect to go on and complete their execution, so far as they were committed to the executors, and she desired that letters of administration, with the will annexed, or other competent authority, should be granted to the person or persons so elected. The vestries made no election. Letters were granted by the judge of probate to John H. Ingle, as if the will contained no such provision.

The question whether the administrator thus appointed could exercise any authority as to the real estate is deemed an important one by the counsel on both sides, and has been fully argued. The Maryland statutes which bear upon the subject provide for the appointment of an administrator de bonis non, with the will annexed, but are silent as to his powers. By the common law his duties are confined to the personal estate, unadministered by his predecessor. Whatever authority he may possess as to the real estate must be derived from the will. If not found there in express terms, or by necessary implication, it has no existence. Hence the test, in all such cases, is the intention of the testator. Many of the duties enjoined upon the executors were foreign to those which come within the scope of their ordinary functions. Such a power never passes by devolution to an administrator, unless it be clear that it was the intention of the testator that he should become the donee of the power, in place of the executor appointed by the will. If no provision be made by the will for such substitution, the power does not become extinguished, but the case falls within the category of those where a court of equity will not permit a trust to fail for the want of a trustee, but will appoint one, and clothe him with authority adequate to the duties to be discharged. In the case under consideration it is clear the testatrix did not intend that any one not clothed with the sanctions she prescribed should be intrusted with any duty touching her estate. The administrator occupies the same relation to the realty as if he were administrator de bonis non without the will annexed, and the testatrix had died intestate. This disposes of the questions raised as to the statute of limitations. The administrator alone has interposed that defence. It cannot avail those who represent the real estate, and who are the only parties in interest in this proceeding.

It was proper for the court to appoint a receiver. Until this was done there was no one authorized to take charge of the property and receive the rents.

Upon looking carefully into the record we find no foundation for the imputation that the answers of the heirs-at-law were obtained by fraud or contrivance. It was within the discretion of the court to allow them to be taken off the files and the parties to answer de novo, or to overrule the application made for that purpose. We think this discretion was not abused.

It was strenuously insisted that the court erred in refusing further time to the defendants to take testimony. The earnestness with which the point was pressed has induced us to examine it with more care than we should otherwise have deemed necessary. The cause was put at issue on the 6th of March, 1866. The 69th rule in equity allowed the parties three months thereafter to take their testimony. The complainant commenced taking his on the 14th of that month. Between that time and the 23d, inclusive, he examined nine witnesses. Notice was given to the defendant's counsel. He appeared and cross-examined the witnesses so far as he chose to do so. An adjournment was ordered by the examiner, from the 23d of March until the 2d of June. A single deposition relating to a formal matter was then taken. The examiner thereupon closed the testimony and returned it to the court. It does not appear that the defendants made any objection to the adjournment, or manifested any desire to take testimony during the period of more than two months between the time of the adjournment and the time to which it extended. The application for further time was heard and overruled by the court on the 8th of June. The rule referred to provides that 'three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court or a judge thereof shall, upon special cause shown by either party, enlarge the time.' The three months are allowed for the taking of testimony by both parties. The limitation applies as much to defendants as to complainants. It is for the court or judge to decide whether further time shall be given or refused, and ordinarily the determination of the question would not be deemed a fit subject for review by this tribunal. Cases may, however, occur of so flagrant a character that it would be our duty to correct the error. In the case before us the complainant's testimony was substantially closed on the 23d of March. The defendants had from that time until the 6th of June to take testimony on their part in the regular way. No reason is given why they neglected to do so. Indeed they were bound to proceed as soon as the cause was at issue. They had no right to wait until the complainant was through. They knew from the previous trials at law what his testimony would be. If there was any surprise, and an extension of time was necessary, doubtless it would have been given. The complainant was pursuing the residue of his compensation for the house he had built. He had delivered possession years before. The house was large and valuable. The proof is that it rented for from seven to eight thousand dollars per year. His expenditures had been large. He had received less than a quarter of the contract price, and nothing for his extra work. He had recovered two verdicts for the amount claimed. He had been engaged for more than fourteen years in a bitter and expensive litigation, in which every possible impediment had been thrown in his way. In the light of these facts we are not prepared to say that the court below erred in the ruling complained of.

There is no error apparent on the face of the decree. It finds the amount due to the complainant, and that it was necessary to sell the real estate described in the bill to pay it. It orders the premises to be sold in the manner prescribed, and the proceeds to be held subject to the further order of the court. The auditor had found and reported the deficiency of assets requisite to give the court jurisdiction and to entitle the complainant to the relief sought by his bill. The necessity of making the sale, if the complainant's demand was to be paid, was clear upon the proofs, and was not denied by the answers. The amount of the liabilities to be paid out of the proceeds might have been ascertained before the decree of sale was made, but that was not indispensable. It may as well be done when the sale is confirmed. The rights of all parties in respect to the fund can then be ascertained, and payment and distribution be ordered accordingly. It is not alleged that the premises were susceptible of division, or if they were, that it was not necessary to sell the whole. No such issue is made in the pleadings, and no such proof is found in the testimony.

It is now nearly eighteen years since the complainant commenced a suit to recover what has been adjudged to him in this case. The conflict has been flagrant ever since. The demand seems to us to be simple and just. We find no error in the record, and the decree of the court below is

AFFIRMED.

In sequence to the preceding case should be reported another, an offspring from it, and like it, from the Supreme Court of the District, the case of

title: Ingle v. Jones/Opinion of the Court


text: Talk:Ingle v. Jones/Opinion of the Court


text:
Hoe v. Wilson

THE decree of the Supreme Court of the District ordering a sale of Miss Dermott's real estate, which the affirmance in the preceding case adjudged was rightly made, having been executed and a sale made, and the property bought by Wilson, who as stated in the report of the case had been appointed receiver of its rents, Hoe, there also mentioned as an heir-at-law of Miss Dermott, with eight others, her heirs also, who joined with him, filed a bill against this Wilson to set aside the purchase, the ground of their bill being that he had purchased below the real value of the property, and that having been receiver, he was incompetent, with proper regard to those rules which equity places around all persons standing in positions of confidence, to purchase at all. The nine heirs who thus filed the bill professed to file it 'for themselves and the other heirs at law,' averring that there were such others, but not naming them nor saying anything as to their number, nor indeed anything else about them. The testimony showed the existence of four, and gave the names of two in full, with a statement that the full names of the two others were not remembered, but that in their names occurred, in the one, 'O'Neal,' and in the other, 'Jane.' The post-office address of the first two was given, and of the other two it was stated that they lived 'somewhere in Alabama, post-office address not remembered.'

Jones, the creditor at whose instance the property was sold, and whose debt was to be paid by the proceeds of the sale, was not made a party either.

The court below heard the case on its merits, and dismissed the bill; no objection being made there at the bar on the ground of defect of parties. The complainants brought the case to this court, and the record being here the counsel on both sides agreed that there should be added to the record of the principal case, to have the same effect as if returned under a writ of diminution, the following proceedings in that cause, to wit, 'the final decree of sale, the trustees' report of sale, the exceptions filed to the ratification of the sale and the order of the court thereon, the order of ratification of the sale, the deed of the trustee to the purchaser.'

Messrs. Melloy and Brent, for the appellants, contended that upon obvious principles a receiver should not be permitted to bid for the lands of which he has previously had the management, citing numerous cases, and especially Anderson v. Anderson.

Messrs. Cox and Davidge, for the appellees, denying this proposition and arguing on it contra, contended that decision on the point could not be made, because the bill was defective in parties. The suit could not be instituted by some in the names of others; those not joined not being stated to be unknown, nor the case otherwise one of that class recognized in the books, for a suit for the benefit of parties not joined; as where parties are too numerous, or are members of a large association or of a large class.

To this it was replied that this point had not been taken below, and could not be first taken here.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Hoe v. Wilson


text: Talk:Hoe v. Wilson

title: Talk:Hoe v. Wilson


text:
Hoe v. Wilson/Opinion of the Court

The case presented by the record, so far as it is necessary to state it, is as follows: The complainants represent themselves to be heirs-at-law of Ann R. Dermott, deceased, and allege that they bring their bill against the defendant 'for themselves and the other heirs-at-law of the said Ann R. Dermott.' The bill alleges that by virtue of a decree of sale in the case of Zephaniah Jones v. Stringfellow and others, wherein these complainants and others were defendants, Wilson, the defendant in this suit, became the purchaser of certain real estate of the said Ann R. Dermott, deceased, which is particularly described; that this purchase was made by Wilson on the 2d of January, 1867, from the trustees named in the decree; that long prior to the purchase, and prior to the rendition of the decree under which the sale was made, Wilson was, by order of the court in that case, appointed receiver of the estate of Ann R. Dermott, with authority to manage and rent the property, which appointment he accepted, and executed his bond as such receiver, which was accepted and approved; that he collected a large amount of rents as such receiver; that he was receiver down to the time of the purchase in question, and still continued to be such. It is averred that by reason of his fiduciary relation to the property in question he was incapacitated to purchase; that the sale is void at the election of the complainants; and that they elect to avoid it, and to have the property resold at the risk of Wilson. The bill prays for appropriate special, and for general relief. Wilson answered. The answer admits the decree of sale, the sale by the trustees appointed to make it, the purchase by Wilson, and that he was receiver as alleged in the bill. It denies that he was incapacitated to buy, and insists that the sale was valid. It avers that he has paid all the purchase-money, and received a deed for the property.

We pass by the questions whether the proper remedy of the complainants was not by appeal from the order of the court below confirming the sale, and whether the bill is not fatally defective on its face in not averring such confirmation before it was filed. These points have been fully argued, but the view which we take of the case renders it unnecessary to decide them. The defence that the validity of the sale is res judicata by reason of the proceedings of these complainants, touching the order of confirmation, is not set up in the answer, and cannot, therefore, be considered.

But Zephaniah Jones, the complainant in the suit in which the decree of sale was made, and the other heirs-at-law of Ann R. Dermott, are indispensable parties. No relief can be given in the case before us which will not seriously and permanently affect their rights and interests. According to the settled rules of equity jurisprudence the case cannot proceed without their presence before the court. The objection was not taken by the defendant, but the court should, sua sponte, have caused the bill to be properly amended, or have dismissed it, if the amendment were not made. Instead of this being done the cause was heard and decided upon its merits. This was a manifest error. The decree must, therefore, be reversed, and the cause remanded to the court below. In that court both parties can take leave to amend and can modify their pleadings so as to exhibit the case as they may desire respectively to present it. If testimony be necessary that also can be taken. We do not consider the supplement to the record filed in this court as before us. It was not in the case in the court below. To recognize it here would involve the exercise of original instead of appellate jurisdiction. Whether it was competent for the receiver to buy at the sale made by the trustees is a point upon which we express no opinion. We have not reached it, and have not, therefore, had occasion to consider the subject.

It is ordered that the decree of the court below be REVERSED, and that the cause be remanded, with directions to that court to proceed.

IN CONFORMITY TO THIS OPINION.

title: Hoe v. Wilson/Opinion of the Court


text: Talk:Hoe v. Wilson/Opinion of the Court

title: Talk:Hoe v. Wilson/Opinion of the Court


text:
The Nonesuch

THIS was an appeal from the District Court of the United States for the Northern District of Florida to the Circuit Court for the same district. There had been no decree rendered in that court, but consent of parties was given to the transfer of the cause into this court. The record was accordingly filed, and the case docketed. Upon the case being called, it was submitted by Mr. Field, Assistant Attorney General for the United States, no opposite counsel appearing.

The CHIEF JUSTICE delivered the opinion of the court

title: The Nonesuch


text: Talk:The Nonesuch

title: Talk:The Nonesuch


text:
The Nonesuch/Opinion of the Court

This court cannot acquire jurisdiction of a cause pending in a Circuit Court by transfer. This was determined at the last term in the case of The Alicia. In that case the record had not been filed, and a motion was made to docket and dismiss. That motion was denied, on the ground that the court could not take jurisdiction. In this case the record has been filed, and the cause has been docketed here. The order, therefore, must be that the cause be

title: The Nonesuch/Opinion of the Court


text: Talk:The Nonesuch/Opinion of the Court

title: Talk:The Nonesuch/Opinion of the Court


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The Gray Eagle (Supreme Court)

APPEAL from the Circuit Court for the District of Wisconsin.

The owners of the schooner Perseverance filed a libel in the District Court of Wisconsin against the schooner Gray Eagle, for a collision in which their vessel had been sunk. The collision occurred in the Straits of Mackinaw, soon after midnight of the 23d of November, 1864, the night not having been a dark one; not so dark at least as that the sails of vessels could not be seen for near a quarter of a mile. The Perseverance had lost her lights in a storm, and was sailing with a white light, contrary to the rules prescribed by the act of Congress, 'fixing certain rules and regulations for preventing collisions on the water,' approved April 29th, 1864, and which made it her duty to carry a green light on her starboard side, and a red one on her larboard, 'and no others' anywhere. She was sailing down the strait on a course E. by S., with the wind south, and discovered the lights of the Gray Eagle about a mile ahead, coming up the strait, on a course of about W. N. W. The witnesses differed a little as to these points, but this was according to the weight of the testimony. The libel alleged, and the evidence of all the libellant's witnesses corresponded with its statements, that when the Gray Eagle was first seen, or soon afterwards, she showed a red light; but that this soon disappeared; after which she showed a green light until near the moment of the collision, when she again showed her red light. The libellants asserted that they had a right to suppose that the Gray Eagle would pass on the starboard of the Perseverance; but that shortly before the disaster she kept away, and, although the master of the latter called on her to luff several times, in a loud voice, and at the same time ordered his own man at the wheel to put the wheel hard a-starboard, the Gray Eagle made no reply, but kept on her course, and in less than two minutes struck the Perseverance stem on, abreast the starboard quarter, with such force as to sink her in about two minutes, the master and crew with difficulty saving their lives.

The defence set up by the answer for the Gray Eagle was, chiefly,

DISMISSED FOR WANT OF JURISDICTION.

1st. That the other vessel was sailing without the regulation lights and in violation of the act of Congress.

2d. That at a certain place in the bay mentioned 'a white light was seen about a mile distant, bearing about a point on the Gray Eagle's port bow, which was supposed to be a light on shore, or upon a vessel at anchor; that the Gray Eagle was then kept away about a point and steadied on her course to give berth to the light; that the light was not discovered to be a vessel's light in motion by the commanding officer until the Perseverance got within about three lengths of the Gray Eagle, the said light being then nearly ahead and to windward; that the light was then supposed to be the binnacle light of a vessel that had hauled up all she could to pass the Gray Eagle to windward; that the mate, not seeing any other light, ordered the helm hard a-port, so as to pass on the port side and keep off and clear the stern of the vessel, and stepped to windward of his vessel, and then heard for the first time a cry from the other vessel to port the helm hard down, but that it was too late, and that the vessels were right together.'

It seemed from the evidence that the light on the Perseverance was not reported to the mate in charge of the Gray Eagle till near the moment of collision. The mate testified that as soon as he saw it he ordered the 'wheel up;' a wrong order. The men who had been watching the light cried out, 'hard down;' a right order, but not the one obeyed.

The District Court dismissed the libel, principally on the ground that the Perseverance, having lost her lights, ought to have lain by at anchor in the night time, and was expressly prohibited from sailing with a white light. The Circuit Court reversed this decision, and decreed that both vessels were in fault, and that the damages should be divided between them. From this decree the owners of the Gray Eagle appealed.

Messrs. Emmons and Vandyke, for the appellants:

Conceding that the Perseverance lost her regulation lights by a vis major, there was no compulsory necessity for her to have been under way in the night, in a narrow strait. She ought to, and could have lain at anchor. If she must, or chose to run, she should have hooded her light, and kept out of the way of all other vessels.

She was guilty of premeditated wrongdoing, of violating positive law, in carrying a light which she had no right to carry, and in not carrying those which, if she insisted on sailing at night, she was bound to have. This was the primal and proximate cause of the disaster. She criminally kept her way and course, displaying a lying signal, and when a collision has happened-as collision could hardly else than happen-she, then contemptuously putting aside, as of no importance, what it was that her white light indicated and declared to the other vessel, demands damages from that other vessel; a vessel itself in the observance of every requirement and which she has recklessly misled. This cannot be done. A party himself in fault cannot recover from any one.

No fault is shown on the part of the Gray Eagle. The vessels were running on nearly parallel courses. The light thus approaching in so nearly a direct line, there was nothing to indicate that it was in motion, and the Gray Eagle supposing it to be a light on shore, or a vessel at anchor, kept away about a point, and steadied on her course. It was not discovered to be the light of a vessel in motion, until they were close aboard one another. The fact that this discovery was not made is indisputable. The Gray Eagle cannot be held responsible for what may afterwards prove to have been an error or mistake in orders given in a moment of peril and danger, and when the collision had become inevitable or imminent, nor for mistakes originating in or proceeding from the fault of the other vessel.

Messrs. Willey and Carey, contra:

The fact that the Perseverance, owing to the misfortune of having lost her regulation lights, had a light prohibited to vessels while sailing, did not of itself absolve the Gray Eagle from the observance of that degree of caution, care, and nautical skill, which the exigencies of the case required. If a white light usually represented a vessel at anchor, the officers and seamen of the Gray Eagle had no right to conclude that it always did. It was their duty, from the moment the light was seen, to have watched it carefully, in order to ascertain from its bearings, whether the vessel was in motion or at anchor. And if, in the exercise of ordinary nautical skill and care, this could have been done, and was omitted, and this omission contributed to the accident, then the Gray Eagle must share the burdens of the loss, although the Perseverance was in fault in running with a prohibited light.

Now the courses of the vessels at first were obviously converging courses. The Perseverance held her course of E. by S., closehauled, until the very instant of collision, as was her duty.

The Gray Eagle on discovering our light, a mile distant, made it about a point over her larboard bow. She then ported about a point, to go to the right, or to the starboard of our light. Her course was thus made N. W. by W., one point higher up than her first course of W. N. W. Now if the light had been stationary, after the Gray Eagle had laid her course so as to avoid it, it would have continued to bear over the larboard bow of the Gray Eagle, increasing in its bearings as the light was approached; and this they must have known would be the fact. But as our vessel advanced, the Gray Eagle would have to be constantly changing her course to hold our light on her larboard. In point of fact, as the result showed and as must necessarily have been the fact, our light must have got over on theirs starboard bow, by the advance of our vessel, and constantly increased in its bearings off the starboard bow of the Gray Eagle, as our vessel advanced, which they must have known could not be if the light was stationary. All this, with the least watching of the light after the first observation had been made, would have admonished the Gray Eagle that our light was moving, and that as she (the Gray Eagle) had the wind free and on the larboard side, it was her duty to avoid our vessel, which had the wind on her starboard side. And she would have discovered this in ample time to have done so, if she had given any attention to the movements of our light.

Mr. Justice BRADLEY delivered the opinion of the court.

title: The Gray Eagle (Supreme Court)


text: Talk:The Gray Eagle (Supreme Court)

title: Talk:The Gray Eagle (Supreme Court)


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The Gray Eagle (Supreme Court)/Opinion of the Court

The appellants in this court, as in the courts below, strongly relied on the point, that the Perseverance was sailing with a white light at night, contrary to the express prohibition of the statutory regulations in that behalf, and, therefore, that the common law rule, which prohibits a recovery by a party who was himself in fault, and who contributed to the damage sustained, ought to be applied to her. But this court has frequently held that the omission to exhibit the proper light, though a fault which undoubtedly puts a vessel prim a facie in the wrong, does not exempt other vessels from the consequences of negligence on their part. It was so decided in the case of Chamberlain v. Ward. That case arose under the act of March 2d, 1849, it is true; but that act seems quite as stringent in its provisions as the act of 1864, and the court, in reference to this question, says: 'Failure to comply with the regulation, in case a collision ensues, is declared to be a fault, and the offending party is made responsible for all losses or damage resulting from the neglect; but it is not declared by that section, or by any other rule of admiralty law in the jurisprudence of the United States, that the neglect to show signal lights, on the part of one vessel, discharges the other, as they approach, from the obligation to adopt all reasonable and practicable precautions to prevent a collision. Absence of signal lights in cases falling within the acts of Congress renders the vessel liable to the extent already mentioned, but it does not confer any right upon the other vessel to disregard or violate the laws of navigation, or to neglect any reasonable and practicable precaution to avoid a collision which the circumstances afford the means and opportunity to adopt.' We are of opinion that the same construction must be given to the act of 1864, and that the exhibition of a prohibited light, as well as the omission to exhibit the proper lights, is insufficient to relieve another vessel from the duty of observing the laws of navigation and of using all practicable precautions to avoid a collision. It is a fundamental rule of admiralty law that where both parties are in fault, both must contribute to make good the damage, and this rule will not be deemed to be abrogated without an express declaration of Congress to that effect.

Supposing, then, the Perseverance to have been in fault for not supplying herself with red and green lights, and for exhibiting a white light, or for not casting anchor and lying by till morning, or for any other reason (which, as her owner or master has not appealed, it is to be presumed she was), the only remaining question for us to consider is, whether the Gray Eagle was also in fault, so as to be chargeable with contributing to the collision. This question, we think, has been properly answered by the Circuit Court. It is admitted by the answer of the appellants that the light of the Perseverance was seen when about a mile distant, bearing about one point on the Gray Eagle's port bow, and was supposed to be a light on shore, or upon a vessel at anchor; and that the Gray Eagle was kept away about a point and steadied in her course to give berth to the light; and that it was not discovered to be a vessel's light in motion, by the commanding officer, until the Perseverance was within about three lengths of her. This is a very remarkable admission. The courses of the two vessels, after this light was seen, must have been at an angle of about two points of the compass with each other, and it is demonstrable from all the evidence taken together that the Perseverance must have passed from the Gray Eagle's port bow to her starboard bow before the collision took place, and yet it is said that the commanding officer did not discover that the light was in motion until within three lengths of her.

The appellees' witnesses all testify that the red light of the Gray Eagle was first seen, and then disappeared, after which her green light only was seen until just before the collision. This shows that the Perseverance had crossed the Gray Eagle's course, and that her motion must have been seen had a proper lookout been kept on the latter. It also shows that the Perseverance properly kept on her course; and had the Gray Eagle kept on hers the collision would not have occurred. The night was not dark; the sails of the vessels could be seen nearly or quite a quarter of a mile. It seems to us evident that there must have been great negligence on the part of those having charge of the Gray Eagle. From the evidence of the appellants' witnesses it appears that there was much confusion on board of her just as the collision was about to take place. One of the men on the lookout forward says: 'When I sung out to put the wheel down, the mate sung out to put the wheel up.' The man at the wheel testified to the same thing, and says that he obeyed the mate's orders, and that undoubtedly caused the collision. Had the mate been on the lookout, as an officer in command, with a light ahead, ought to have been, the difficulty would not have occurred. We are, therefore, of opinion that the men in charge of the Gray Eagle were delinquent in their duty under the circumstances of the case, and that this delinquency contributed to cause the collision in question, and, as a consequence, that the loss should be divided between the parties.

DECREE AFFIRMED.


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The Washington and the Gregory

APPEALS from the Circuit Court for the Southern District of New York.

This was a libel in admiralty by Ann Cavan, to recover damages for injuries sustained by her whilst a passenger on board the ferryboat D. S. Gregory, crossing the Hudson River, from a collision, which occurred September 16th, 1866, between that boat and the steamboat George Washington. The ferryboat was at the time making one of her regular trips from her slip at the foot of Montgomery Street, in Jersey City, to her slip at the foot of Desbrosses Street, in the city of New York. The Washington was an excursion boat, and was bound from the pier at the foot of Christopher Street to Barclay Street, in New York, intending to proceed thence down the bay. The ferryboat was crossing the river diagonally, and moving at the rate of between nine and ten miles an hour. The steamboat was going down the river at the rate of twelve miles an hour, distant about two hundred yards from the piers in New York. The collision took place in the morning, between the hours of ten and eleven. The weather was clear at the time, and the river in the vicinity of the collision quite free of boats of all kinds. In the courts below, and in this court, each vessel endeavored to throw the blame of the collision upon the other. The District Court and the Circuit Court held that the collision was caused by the fault of both vessels; that each was endeavoring to cross the bows of the other, and to force the other to pass under her stern. The libellant was at the time on her way to New York to attend church, the day being Sunday. The injuries she received from the collision were of the most serious character, resulting in permanent disability. The District Court awarded her ten thousand dollars damages, to be recovered against both vessels. The Circuit Court affirmed the decree, but added to it that the damages should be equally apportioned between the two vessels; that upon the payment by the claimants of one vessel of one-half of the damages and costs, with interest and charges, proceedings against her for the collection of the residue should be stayed until execution for such residue against the claimants of the other vessel was returned unsatisfied, or until it otherwise appeared that the libellant was unable to collect the residue of them by process from the court. The decree also gave the parties liberty to apply to the court, if occasion should require, touching the enforcement of the decree.

The claimants of both vessels appealed to this court.

''Mr. Sidney Webster, for the claimants of the Gregory. Mr. Charles Donohue, for the claimants of the Washington. Messrs. Adams and Van Sandvoord, for the libellant''.

Mr. Justice FIELD delivered the opinion of the court.

title: The Washington and the Gregory


text: Talk:The Washington and the Gregory

title: Talk:The Washington and the Gregory


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The Washington and the Gregory/Opinion of the Court

The extent and character of the injuries sustained by the libellant are not disputed; and we do not think the amount at which her damages were assessed by the District Court, and which was approved by the Circuit Court, at all excessive. At the time the collision occurred the libellant was on her way to the city of New York to attend public worship, and was seated in the ladies' cabin, a few feet from the forward end. The bow of the Washington struck the ferryboat near where she was seated, and passed through the cabin, tearing up the planks and timbers, and the inner partition separating it from the track of the wagonway, carrying the libellant through on to the track, and hurling upon her the loosened planks and timbers. Her left leg was broken, and the ankle sprained. Both bones of the right leg received three distinct fractures between the ankle and knee, and the lower part of the leg bone was crushed. Her right cheek and ear and the back of her head were cut, and severe bruises were inflicted upon her body. From the injuries received she was unable for several weeks to assist herself, and required constant attention, suffering all the time intense pain. At the trial in the District Court, more than a year after the accident occurred, she could not move without pain, and it is the opinion of the surgeon who attended her that she is permanently disabled. We do not think, therefore, that any just objection can be made to the amount found.

The principal question made in the courts below was, whether the libellant was entitled to recover against both of the vessels, or only against one of them; and if only against one of them, which one; and this question depends for its solution upon the further question, whether the collision resulted from the fault of only one of the vessels, or from the fault of both of them.

The libellant alleges that the collision was caused by the negligence, want of skill, and improper conduct of the persons navigating both of the vessels.

The claimants of the Gregory contend that the collision was caused by the attempt of the Washington to continue her course and cross the bow of the Gregory after the latter, as they allege, had ported her helm so as to head to the New York shore and pass to the right of the Washington, and had blown two blasts of her whistle, at short intervals between them, as signals to the Washington of the course she intended to take.

The claimants of the Washington, on the other hand, impute the collision to the deviation of the Gregory from her usual course, which they contend would have taken her under the stern of the Washington, and her attempt to cross the bow of the Washington after the latter had indicated, as they allege, by two blasts of her whistle, that she was going ahead of the Gregory.

We have looked into the evidence presented by the parties with much care. As in nearly all collision cases, it is, in some respects, conflicting, but, in our judgment, shows that both vessels were in fault. The collision occurred in open day, between the hours of ten and eleven in the morning. The weather at the time was clear, and that vessels were in full sight of each other from a distance of several hundred yards until they collided. The Washington was moving at the rate of twelve miles an hour, going down the river, about two hundred yards from the piers on the New York side. The Gregory was moving at the rate of between nine and ten miles an hour, crossing the river diagonally. Neither of the vessels paid any attention to the signals given by the other, but each continued on her course without waiting for a response, or coming to an understanding with the other vessel as to her course, and neither attempted to slacken her speed until too late to prevent the collision. We agree with the Circuit Court that neither pilot nor master of either vessel could have been taken by surprise at the meeting of the vessels, as each must have been that the courses adopted and pursued necessarily led to it, and also that those courses were deliberately pursued by the pilot and master of each with the purpose of compelling the other vessel to change her course.

We do not feel called upon to vindicate our conclusions by citations from the evidence, which fills over one hundred and thirty printed pages of the record. The citations would illustrate no principle, and serve no useful purpose.

Both vessels being in fault, both were liable to the libellant, and both could be proceeded against in the same libel. The damages were properly apportioned equally between the two vessels, the right being reserved to the libellant to collect the entire amount of either of them, in case of the inability of the other to respond for her portion.

DECREE AFFIRMED.


text: Talk:The Washington and the Gregory/Opinion of the Court


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The Keokuk

APPEAL from the Circuit Court for the District of Wisconsin; the case being this:

The La Crosse and Minnesota Steam Packet Company were, during the year 1865, owners of the steamer Keokuk and of several barges, including one named the Farley, which were running on the Mississippi River between La Crosse and Winona, and engaged in carrying freight. On the 23d of October, in that year, the Keokuk towed the barge Farley to Winona, and left her moored at the dock at that place, not however in any one's charge. On the 27th, at about five o'clock in the afternoon, one Robson, a shipper at Winona, getting on the barge, took her to the elevator near by, and with his own men, loaded her with wheat to be shipped to La Crosse. He did not ask permission of the master of the Keokuk to load the barge, nor inform either him or any other person of his intention to load her. He had, however, previously, at times, taken possession of barges and loaded them, and they were afterwards towed by the packet company to La Crosse; he had done this by permission of the officers of the packet company, but had never had permission to do it from the captain then in command of the Keokuk.

The Keokuk did not arrive at Winona from La Crosse that night until after dark. The night was a very stormy night, and it was snowing hard. The vessel landed at what was known as the lower landing, about fifty rods from the elevator, where the barge then was, and after unloading put off again at about twelve o'clock at night for La Crosse. While the boat was laying where she was, the bookkeeper of Robson came to her second clerk, who was 'very busy checking off freight,' in the dark in the storm, a lantern in one hand and his book in the other, and handed to him two papers, saying, 'Here care the bills of that barge.' The clerk took them with some assenting remark, and put them in his pocket without opening them; 'so that the rain should not spoil them.' There was no explanation what bills the bills were, and nothing further took place between the parties. No book was presented to the clerk to sign and no receipts asked for. This clerk subsequently laid the bills on the first clerk's desk in the boat, the place where he usually put bills. He was not positive, but he thought that when he put them there he said to the first clerk, 'Here are those bills.' He did not himself know their contents. No other notice than that already mentioned was given to the officers of the boat that the barge had been loaded, and none of the officers were aware of the loading of the barge until they were one-third of the way back to La Crosse. The papers were then discovered to be memorandum bills of lading of the barge. The barge was not watched by Robson, and in the morning it was found sunk at the dock where he had left it. Thereupon Robson filed a libel in the District Court of Wisconsin against the steamer, the barge, and the packet company, charging that the barge was unseaworthy, and that the cargo was lost by carelessness of the master and officers of the steamers. There was no proof to sustain the charge of unseaworthiness.

The District Court decreed for the libellant; the Circuit Court affirmed the decree. The packet company appealed.

Mr. J. W. Cary, for the appellant:

The law creates no lien on a vessel as a security for the performance of a contract to transport a cargo, until a cargo is shipped under it. In Vandewater v. Mills, this court says: 'Maritime liens are stricti juris, and will not be extended by construction. The obligation between the ship and cargo is mutual and reciprocal, and does not take place till the cargo is delivered on board.' Now here there was no sufficient delivery.

Mr. Emmons, contra:

The rule, as laid down by this court, in the case cited by Mr. Cary, is explained by it in Bulkley v. The Naumkeay Steam Cotton Company. There the master receipted for a hundred bales of cotton, to be carried on his vessel, and placed it on a lighter, of which he had control, to be transferred from the warehouse in the city of Mobile, to his vessel, lying outside the bar. The cotton was lost by fire on the lighter before reaching the vessel. It was held that a delivery of the cotton to the lighterman was a delivery to the master, and bound the vessel.

Mr. Justice DAVIS delivered the opinion of the court.

title: The Keokuk


text: Talk:The Keokuk

title: Talk:The Keokuk


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The Keokuk/Opinion of the Court

It is a principle of maritime law that the owner of the cargo has a lien on the vessel for any injury he may sustain by the fault of the vessel or the master; but the law creates no lien on a vessel as a security for the performance of a contract to transport a cargo until some lawful contract of affreightment is made, and the cargo to which it relates has been delivered to the custody of the master or some one authorized to receive it. The inquiry then arises whether there was any contract to carry the wheat in question, and, if so, was the barge containing it delivered to the custody of the steamer? It is very clear, had the steamer taken the barge in tow, the lien would have attached, although the bills of lading were not executed, because the act of towing the barge would be evidence that the grain was received, and that there was a contract to carry it safely. And the steamer would be equally liable if the barge had been left at the landing by the fault of the officers of the boat. But the evidence not only fails to prove this, but establishes the contrary conclusion. The only witness on the part of the libellant, whose testimony has any bearing on the subject, is his bookkeeper. He says, that on the night in question he gave to the second clerk of the steamer, who was on the levee checking freight, two bills of lading, with the statement (of this he is not positive), 'These are the bills of that barge,' to which the clerk made some assenting remark. But the clerk denies that he knew the contents of the papers when handed to him, or that anything was said at the time from which he could infer their contents. And his subsequent conduct shows that the observation of the bookkeeper, if any was made, failed to arrest his attention; for he put the papers in his pocket and remained on the levee until he had completed his work, and afterwards, without examining them, placed them in the condition in which they were received by him on the desk of the first clerk.

If he is not mistaken in his recollection, that the first clerk was present on the occasion, and that he told him 'here are the bills' (which is very doubtful from the evidence), yet it is manifest the first clerk attached no importance to the bills, for he did not notice them until after daylight, when the Keokuk was far on her way to La Crosse. Each clerk, doubtless, acted on the supposition that the other knew to what particular freight the bills related, but it seems both were equally uninformed concerning them. It is not pretended that in any other way than this, was any information conveyed to any one connected with the boat of the intended shipment of grain by the libellant. Neither the master, nor any person on the steamer, or in the employment of the company, had notice that he had taken the barge and loaded it with grain, or that he contemplated doing so. If it be conceded the course of business between the two parties justified him in taking possession of the barge and loading it, without the direct permission of the master, yet it falls far short of showing that the barge, when loaded, was considered in the custody of the steamer without notice to any of her officers. Indeed, it would be unreasonable to suppose the parties dealt with each other on any such understanding, for it would place the advantage altogether on the side of the shipper, who would be relieved of care and risk as soon as the barge was filled with grain, and the master could exercise no discretion about receiving it.

As there was, then, no agreement in this case which changed the legal rights of the parties, it is clear the steamer is not subject to a maritime lien. The wheat and barge were, at the time of the accident, in the control of the libellant, and their custody was not changed by handing unsigned bills of lading to the second clerk of the steamer, who did not know their contents, nor had any reason to suppose they related to the barge Farley. It was the misfortune of the libellant that he transacted his business so loosely, and if it be the corporation is somewhat to blams for this, the steamer has not on that account committed any fault for which she is chargeable in admiralty. As no one in her behalf contracted with the libellant to transport the barge to La Crosse, and as he did nothing to transfer the possession to the steamer, the libel cannot be sustained.

The case of Bulkley v. Naumkeag Cotton Company is cited in opposition to the views we have presented, but it is not applicable. There the goods were delivered to a lighter in the control of the ship; here the shipper took control of the barge, and did not deliver either barge or cargo to the steamer.

The decree of the Circuit Court is REVERSED, and this cause is remanded to that court with directions to

DISMISS THE LIBEL.

title: The Keokuk/Opinion of the Court


text: Talk:The Keokuk/Opinion of the Court

title: Talk:The Keokuk/Opinion of the Court


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The Alleghany

APPEAL from the Circuit Court for the District of Wis consin.

The owners of the schooner Winslow libelled the propeller Alleghany in the District Court for Wisconsin, to recover compensation for a collision by which the schooner had been greatly injured and sunk. The catastrophe occurred on a mild morning of May, when there was no wind, and nothing to obstruct the vision of those who had charge of the propeller, in what is known as the 'Straight Cut' at Milwaukee, a sort of canal which makes the harbor entrance from the Milwaukee River to Lake Michigan, and of which an idea will perhaps be conveyed by a diagram on page 523.

Although the testimony was in some particulars very conflicting, the controlling facts were either admitted in the answer, or were satisfactorily proved.

The cut is eleven hundred and fifty feet in length, and about two hundred and sixty feet in width between its piers. Its course is from east to west, and it enters the river nearly at right angles. At its west end, though between the piers, there is a bar extending inward from the north pier toward the middle of the cut, and, of course, reducing the depth of the water. The schooner had left her dock in the river, and she was proceeding out through the cut into the lake, in tow of the steamtug Muir, and about twenty-five feet astern of the tug. Shortly after leaving the dock the propeller was seen entering the eastern end of the cut from the lake, and the tug signalled to her by one whistle to keep to the starboard or north side. To this signal the propeller responded by a similar signal, thus announcing an intention to pass the tug and the schooner on their port side. A second signal to the same effect was given by the tug when the vessels were nearer each other, but to this no answer was returned.

The collision took place shortly after, soon after the tug had entered the cut, when she was still headed toward the south pier, and before she had been able to straighten out her tow. The exact place of the collision was not certainly established, but it was clearly south of the middle of the cut, and not far from its western entrance. Its effect was to break in the bow of the schooner, and sink her in fifteen minutes. The propeller entered the cut at a high rate of speed. She had been racing on the lake to reach the entrance in advance of another vessel, and, according to the answer made to the libel, she was running eight miles an hour when she entered. She did not shut off her steam at all until within half her length of the piers, and then only partially. Her steam was not entirely shut off until she had proceeded a considerable distance within the cut. She steered wildly, not obeying her helm. Her speed was too great for proper steering in shallow water, considering her draught. She kept on, however, in the middle, between the piers, instead of stopping or moving to the north side of the cut, as she had signified her intention to move by her answer to the tug's signal.

The District Court decreed against the propeller, and on appeal the Circuit Court did the same.

Her owners now appealed to this court.

''No argument was made at the bar for the appellants; but their counsel had leave to file a brief. Mr. Emmons, for the other side''.

Mr. Justice STRONG, having stated the case much as above, delivered the opinion of the court.

title: The Alleghany


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title: Talk:The Alleghany


text:
The Alleghany/Opinion of the Court

If the facts of the case, about which there is little, if any dispute, be considered, there is no difficulty in determining where the fault of the collision rests. The tug, though a steamer, was incumbered with a tow. She was, therefore, not as manageable as the propeller. She could not back, or even stop, without danger of collision with the schooner. It was necessary in entering the cut from the river that both the tug and her tow should cross the bow of the propeller heading toward the south pier; and as the cut entered the river at nearly right angles, it was also necessary for her to increase her speed at the entrance in order to bring the schooner into line and prevent her running against the south pier. The course of both the tug and the schooner required to be changed not less than ninety degrees within a distance not much exceeding two hundred feet. All this was known to the master of the propeller. His steamer was entering the harbor. It was, of course, his duty to move with great caution. He knew that the entrance was narrow and difficult, especially if other vessels were to be passed. He knew that near the west end of the cut the water on the north side was shoal, and he knew how much water the propeller needed. He knew also that at the west end a tug passing out to the lake, with a two in charge, must change her course to the east, and keep up her speed in order to straighten out the tow. What, then, was his duty? Apprised, as he was in season, of the approach of the tug and schooner, and planning, as the answer to the libel avers he did, to meet them, not in the river, but between the harbor piers, it was obviously his duty to avoid the meeting in that part of the cut where the propeller could not go to the north side, and to make no attempt to pass until the tug could straighten out her tow. He had it in his power to select the place for passing. If it be, as is now contended, that the propeller could not at that part of the cut go nearer the north pier, in consequence of the bar, she was not the less in fault. She ought not to have been there. She ought to have foreseen the difficulty and guarded against it. And this fault was closely connected with another. The propeller entered the cut at too great a rate of speed. This increased the danger. It brought her to the place of greatest difficulty at the most unfavorable time for passing it, besides making her unmanageable. It is true her engines were reversed when she was in close proximity to the schooner, but not soon enough to stop her forward movement before she reached the most dangerous point in the channel, not soon enough to prevent her running into the schooner before she could be straightened out for her course through the cut. It is thus manifest that the collision was caused by the misconduct of those in charge of the propeller.

We do not perceive that the tug was at all in fault. It was not in her power to stop without either colliding with the schooner or permitting the schooner to run upon the south pier. At the time of the collision both the tug and the schooner were on the south side of the channel, where they had a right to be.

title: The Alleghany/Opinion of the Court


text: Talk:The Alleghany/Opinion of the Court

title: Talk:The Alleghany/Opinion of the Court


text:
The Northern Belle

APPEAL from the Circuit Court for Wisconsin, the case being this:

The La Crosse and Minnesota Steam Packet Company, owners of the steamboat Northern Belle, and engaged in the carrying trade on the Upper Mississippi, undertook to carry for a certain Robson, in their barge Pat Brady, five thousand bushels of wheat from Hastings, in Minnesota, to La Crosse, in Wisconsin, and safely deliver the same, the unavoidable dangers of the river and fire only excepted. On the voyage the barge was sunk and the wheat damaged, and the Home Insurance Company, which had given a policy on the wheat and paid it, filed a libel in admiralty against the steamer and her barge, to recover the loss.

The principal question in issue was the seaworthiness of the barge. The injury occurred May 12th. About the latter part of June following, after another accident and loss of a cargo on the same barge, she was placed upon the ways for repairs. And the depositions of several witnesses who examined her carefully at this time were now before the court. One of these witnesses testified that he found over ninety timbers rotted and gone, so much so that they were not strong enough to make a fastening to. At one point there were four side timbers rotted out, so as to leave about five feet without support. Her floor-timber ends were much decayed. Another witness stated that on one side he found about fifty rotted timbers, some of them entirely rotted off; on the other side about the same, fifteen or twenty of them rotted entirely off. A third witness, a ship carpenter, confirmed this, testifying that the effect of it would be that any strong pressure against her sides or bottom, from getting aground or surging against a steamboat, would cause her to leak; an inference which it hardly needed a ship carpenter to draw for the court.

The evidence in the immediate case showed that on the occasion when the present catastrophe took place, the steamboat was descending the river in the night, when a slight shock was felt on the barge, so slight that it was not communicated to the boat. It did not stop or retard either the barge or the boat, but in a few minutes the former was found to be sinking, and had to be grounded on the nearest sandbar. No rock or snag was proved to be in the river at the place where the stock first occurred.

The Pat Brady was an old barge which had been formerly called Fort Snelling. But about a year before this catastrophe, she had been repaired and sent forth with a new name.

The District Court decreed in favor of the libellant, and the Circuit Court affirmed that decree. The case was now brought here by the packet company.

Mr. Cary, for the appellant; Mr. Emmons, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: The Northern Belle


text: Talk:The Northern Belle

title: Talk:The Northern Belle


text:
The Northern Belle/Opinion of the Court

As the decision of the cause turns upon the fitness of the barge for the purpose of the voyage, or, in the language of the admiralty, on its seaworthiness (a question which, as applicable to the peculiar condition of this navigation, is before us for the first time), we propose to examine into some of the principles on which that question must be decided.

For many years the grain which was transported by steamboats on the Western rivers was first put in sacks, and then placed in the hold of the vessel, or if that was filled, was laid around on the decks. But as this commerce in the cereals increased in importance, including, as it does, not wheat, corn, rye, oats, barley, &c., of that immense agricultural region, it became a necessity to have the freight as cheap as possible. The cost of the sacks in which the grain was carried, and the labor of filling and securing them, and loading and unloading, was a heavy item in transportation. The railroads, which had become active competitors for this carrying trade, did not use sacks, but placed the grain in bulk in cars adapted to the purpose. To facilitate the loading and unloading of grain these railroad companies introduced on their lines, and at the termini of their roads on the rivers, immense buildings called grain elevators. In these buildings the grain was carried by machinery up into bins, and then by its own gravity let down through conductors into the cars, which were thus loaded in a few minutes. The introduction of this mode of loading and carrying grain by the railroads, and the competition which they presented to river transportation, introduced in the latter the use of barges, in which grain was carried in bulk, without sacks, and loaded from elevators, as was done by the railroads. This mode of river transportation, which is often auxiliary to the railroads, has superseded almost entirely the old mode of carrying by sacks in the hold of the vessel, and its present importance and future growth can hardly be over-estimated. It is, therefore, of great consequence to determine, upon sound principles, the rights and liabilities of the carrier and the owner of the cargo in these cases, in regard to these barges, so far as they are open for consideration.

The barges are owned by the same persons who own the steamboats by which they are propelled, and are generally considered as attached to and making part of the particular boat in connection with which they are used; though quite often an individual or corporation owning several boats, running in a particular trade, have a large number of barges, which are taken in two by whatever boat of the same line may be found most convenient. In every case, however, the barge is considered as belonging to the boat to which she is attached for the purposes of that voyage.

The question that arises in the case before us has reference to the extent of the duty or obligation which the law imposes upon the owners of such a steamboat in regard to the condition of the barge in which grain is so carried in bulk, as to seaworthiness or fitness to perform the voyage which her owners had undertaken that she should perform safely, with the exception of the unavoidable dangers of the river and of fire.

This duty is one which must obviously belong exclusively to the carrier. He can and must know, at his own peril, the condition of the barge in which he proposes to carry the goods of other people; while the owner of the cargo is under no obligation to look after this matter, and has no means of obtaining any sure information if he should attempt it.

When we come to consider what shall constitute fitness or unfitness for the voyage we must take into account the nature of the service which she is to perform, and the dangers attending the navigation in which she is engaged. This is very different in the narrow current and shallow water of the river from what it is in open seas or lakes or their bays and inlets. The necessities of river navigation require steamboats and barges to pass through narrow and crooked channels, and to vanture on very shallow water, a water which is constantly varying in its depth, and a channel which often changes its course in a few days very materially. The consequence of this is that both steamboats and barges often get aground temporarily and are soon got off and resume their voyage. Often they rub the bottom of the river for many feet on crossing a sand-bar at low water, and pass on without injury or interruption. These large steamboats, having a barge or barges in tow, lashed to them loosely, as they must be, are often brought against their sides with much force. They land for the purposes of their ordinary business at every ten or twelve miles of their voyage at the towns and landings on the river, and in doing so must necessarily impinge with more or less force against the barge which is between the boat and the shore. These are the daily and hourly external forces to which the barge is subjected in the ordinary course of navigation.

It is the duty of the carrier to see that his barge is capable of resisting these forces without subjecting the carge to injury. She must be so tight that the water will not reach the cargo, so strong that these ordinary applications of external force will not spring a leak or sink her, so sound that she will safely carry the cargo in bulk through these ordinary shocks to which she must every day be subjected. If she is capable of this she is seaworthy; if she is not, she is unfit for the navigation of the river. No other test can be given, and this must be determined by the facts in each particular case.

In the one now under consideration, if regard be had to the evidence as to the condition of the Pat Brady, there is not much difficulty. [The learned Justice here recapitulated the testimony as already given as to the condition of the boat.] It is argued by the claimants that the barge struck a sunken rock or snag with such force as to tear open her planks, and that the sinking was one of the unavoidable dangers of the river. But without attempting any nice criticism of that phrase, we are entirely satisfied that there was no shock or force which a strong, well-built barge would not have sustained without injury. The slight character of the shock, the rotten condition of the barge, the additional fact that she was an old barge which had been repaired and had her name changed a year or so before the accident, all prove this. No snag or rock was proved to exist there. It was, in all probability, an ordinary rub over a sand-bar, which the barge, in her decayed condition, could not stand without leaking.

DECREE AFFIRMED.

title: The Northern Belle/Opinion of the Court


text: Talk:The Northern Belle/Opinion of the Court


text:
Author:Henry Reeve

Works
As contributor
 * The Times
 * The Quarterly Review
 * The Edinburgh Review

Contributions to EB1911

 * (in part)

Translations

 * Alexis de Tocqueville, Democracy in America, v. 1 (1835) and v. 2 (1862)
 * Alexis de Tocqueville, Democracy in America, with preface and notes by John Canfield Spencer (1848)

title: Author:Henry Reeve


text:
United States v. Padelford

APPEAL from the Court of Claims. That court had found the following case:

That among the citizens of Georgia during the late rebellion was one Edward Padelford. That he never gave any voluntary aid or comfort to the late rebellion or to persons engaged therein; but 'consistently adhered to the United States,' unless the matter of certain special facts constituted in law such aid and comfort. The special facts were these: 'In April, 1861, after the breaking out of the rebellion, a subscription for a loan of $15,000,000 to the Confederate government was opened in the city of Savannah, and all persons were expected and required to subscribe to it who were able to do so, and declarations and threats were publicly made, that all who did not subscribe voluntarily should be made to subscribe. These threats were openly made at the place of subscription, and by persons influential with the populace. Padelford's name was mentioned, his absence was remarked upon, and inquiries were made as to where he was; and it was publicly threatened that if the Marine Bank, of which he was a director, did not subscribe liberally, it should be pulled down. Padelford was informed of these things, and advised to subscribe to the loan because of them, by friends, loyal as well as rebel; and under these threats and the pressure of circumstances stated, he subscribed $5000 to the loan, and declared he did it unwillingly and because of the public excitement, and he sold out the stock he had subscribed for in two weeks after.

'The Marine Bank of the city of Savannah was, in 1861, under the direction of Northern men, and Padelford was one of its most influential directors and largest stockholders. When the other banks of Savannah increased their capital stock, and lent their funds to the aid of the Confederacy by exchanging them for Confederate notes and securities, the Marine Bank objected to doing so, and instead, contracted its business for its own security. This conduct and the known loyalty of many of the directors of the bank subjected it to public odium, and it was nicknamed the Yankee Bank. At the time the subscription to the loan was opened in Savannah the political excitement was at its highest point, and it was, as has been stated, publicly threatened that if the bank did not subscribe liberally it should be pulled down. Under these threats and the pressure of the circumstances stated, the bank subscribed $100,000 to the Confederate loan. This was the least it could subscribe according to its capital; and its refusal to subscribe would have endangered the bank and its directors; but Padelford opposed the loan made, and from that time absented himself for the most part from the meetings of the directors, on the ground that the course of the bank was controlled by outside pressure.'In addition to these facts, the Court of Claims found that Padelford, during the rebellion and prior to October, 1863, 'voluntarily executed' as surety three different bonds, conditioned for the performance by the different principals of their duties-one as commissary of the rebel army; one as assistant commissary, and one as assistant quartermaster; that all the principals in these bonds were, and for some years had been, respectively, intimate personal friends of Padelford; that two of the principals were within the terms of the conscription acts pending or in force at the time of the execution of their several bonds, and that by their appointment to office they escaped active military service in the field, and were enabled to remain at their homes in office respectively; and that Padelford was induced to execute the bonds by motives of personal friendship and regard for the several principals.

So far the findings of the court as to the loyalty of Padelford.

An act of July 17th, 1862, having by its thirteenth section authorized the President at any time thereafter, by proclamation, to extend to persons who might have participated in the rebellion, pardon and amnesty, with such exceptions and at such time, and on such conditions as he might deem expedient for the public welfare, President Lincoln did, by proclamation dated December 8th, 1863, make known to all persons who had directly or by implication, thus participated, with some exceptions specified, that on their taking a certain oath, the form of which his proclamation set forth, and thenceforth keeping and maintaining it inviolate, 'a full pardon was thereby granted to them and each of them, with restoration of all rights of property, except as to slaves, and in property cases where rights of third parties shall have intervened.'

About a year after this proclamation, that is to say on the 21st December, 1864, the city of Savannah was captured by the government forces under General Sherman; Padelford and one Mott being owners, at the time, of a large amount of cotton in store there. On the 18th of January, 1865, and, as the Court of Claims found, before any actual seizure or taking possession of the property in question by the military, otherwise than by the capture of the city, Padelford, in due form of law, took and subscribed the oath of amnesty and allegiance to the United States government prescribed by the President's proclamation issued in pursuance of the act; he not having been, as to his person or property, within the exceptions of the proclamation; and he thenceforth complied with all the requirements and conditions named in the act and proclamation, and kept and maintained his oath of allegiance and amnesty inviolate. After Padelford thus took the oath, the cotton was taken possession of by the military authorities, and by them turned over to the proper agents of the United States treasury, under whose direction it was transported to New York and sold, and the net proceeds, amounting to $246,277, paid into the treasury of the United States. Padelford and Mott, now, March, 1866, filed a petition in the Court of Claims to have these proceeds; their petition being founded on the act of March 12th, 1863 -entitled 'An act to provide for the collection of abandoned property, &c., in insurrectionary districts within the United States,' and which provided as follows:

'Any person claiming to have been the owner of any such abandoned or captured property may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims; and on proof to the satisfaction of said court (1) of his ownership of said property, (2) of his right to the proceeds thereof, and (3) that he has never given any aid or comfort to the present rebellion, receive the residue of such proceeds, after the deduction of any purchase-money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expenses attending the disposition thereof.'

After the petitioners had filed their claim, Congress by an act of June 25th, 1868, enacted 'that whenever it shall be material in any suit or claim before any court to ascertain whether any person did or did not give any aid or comfort to the late rebellion, the claimant or party asserting the loyalty or such person to the United States, during such rebellion, shall be required to prove affirmatively that such person did, during said rebellion, constantly adhere to the United States, and did give no aid or comfort to persons engaged in said rebellion.'

The petitioner were permitted to sever in their claim, and to sue severally for their respective interests. And in the suit of Padelford judgment was rendered in his favor for one-half ($123,138) of the net proceeds of the cotton. From this judgment the United States appealed.

The view of the court was, as matter of law, that Padelford's conduct prior to the capture of the city, did not constitute the giving of aid or comfort to the rebellion, or to persons engaged in the rebellion within the provisions of the acts of March 12th, 1863, and June 25th, 1868, and did not bar him from recovering in this action the net proceeds of the property in question. And apparently that if it had, he was entitled to recover, having taken the oath and been loyal afterwards.

Mr. J. S. Hale, special counsel of the United States:

1. The Abandoned and Captured Property Act provides that the claimant shall prove 'that he has never given any aid or comfort to the rebellion.' And the subsequent act, that he shall 'prove affirmatively' that he 'did during said rebellion consistently adhere to the United States, and did give no aid or comfort to persons engaged in said rebellion.' The findings of the court come short of these requirements. In each case the words of the statute are carefully chosen, and this prescribed form of words cannot be supplied by the general averment that the claimant did 'consistently adhere to the United States.'2. The facts found by the court, in regard to the inducements to the claimant for making the contribution of $5000 to the Confederate loan, do not excuse the complainant from the consequences of his act. The findings of the court only amounts, in substance, to the fact that there was popular enthusiasm and popular clamor in behalf of the subscription to this loan. This is not the force, coercion, or putting in fear which the law recognizes as an excuse for the commission of an offence, or for the performance of a forbidden act. Such an act can only be excused on the ground of fear, proceeding from an immediate and actual danger threatening the very life of the party.

The contribution by the Marine Bank of $100,000 to the Confederate loan is of the same character, and the claimant is chargeable as a participator in that loan. He was 'one of its most influential directors and largest stockholders.' It is found by the court below that he opposed the loan, but not that he persistently and to the end refused to be a party to it. On the contrary, his final assent is fully implied.

However this may be, the obligations which the claimant entered into as surety in the bonds, and by which he aided to place men in the actual military service of the rebellion, and to effect and maintain the organization of the rebel armies, and thereby enable them the more efficiently to prosecute the war against the United States, certainly afforded aid and comfort to the rebellion. And these acts of the claimant are found by the court to have been voluntary acts. The inducements or motives found not only do not detract from the voluntary character of the claimant's acts, but affirm their voluntary character. It was from motives of personal friendship to his several principals-the rebel officers in question-that these acts were done.

3. The taking of the amnesty oath by the claimant, in January, 1865, after the capture of Savannah, does not relieve him from the disability effected by the statutes. By that capture the cotton was captured. It was the only capture of it that could be made. The rights of the United States in respect to the property were fixed and vested by it, and no subsequent act of the claimant could operate to revest the title in himself.

The cotton having been captured in fact, the claimant, by his petition, places himself on the distinct issue that he never gave aid or comfort to the rebellion. The exclusion of the claimants from the Court of Claims, by reason of acts of disloyalty under the statutes, is not in the nature of a penalty which could be remitted by the Executive power of pardon and amnesty. The statutes in question are not penal statutes. They do not purport to inflict a penalty or punishment for a crime. The jurisdiction of the Court of Claims is purely statutory; and when Congress, in providing for claims growing out of the war of the rebellion, deems it just and proper to provide that such claims shall not be entertained by that court, except by those who satisfy the court by proof that they have had no part or lot in the support or prosecution of such rebellion, such a limitation cannot be removed by Executive action. The power of pardon and amnesty, under the Constitution, or under the act of 1862, is merely to relieve from the penalties of guilt. 'Amnesty' may, perhaps, have a wider effect than pardon, and wipe out the evidence of the fact, so that it could not be alleged and proved by another, to the prejudice of the party amnestied. But here the party claiming the benefit of the jurisdiction of the Court of Claims is required to prove affirmatively the fact that he never did certain acts; to prove it as an historical fact, not a constructive one. And here the finding of the court below establishes that the actual historical fact is the other way.

Messrs. Carlisle and McPherson, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: United States v. Padelford


text: Talk:United States v. Padelford

title: Talk:United States v. Padelford