text:
Steinbach v. Stewart/Opinion of the Court

The record exhibits five assignments of error, all founded upon exceptions taken in the court below to the admission or rejection of evidence. Of these the first is, in substance, that the court permitted the defendants to give in evidence what it is contended constituted at most only an equitable right, and what was, therefore, no defence against the legal title asserted by the plaintiff. The exception cannot be understood without a brief examination of the titles under which each of the parties claimed the lands in controversy.

The title of the plaintiff had its origin in a provisional concession made by the Mexican government to Lazaro Pena on the 14th day of October, 1839. Pena was then in possession of the land, and the concession was made to him with the reservation that he should petition for the usual title from the political government. On the 13th day of October, 1840, he obtained a grant in the usual form from Don Juan B. Alvarado, then governor of the department of California, for the land then known by the name of 'Agua Caliente,' embracing the land now in dispute, and on the 8th of October, 1845, the grant was approved by the Departmental Assembly. Before it was made, however, though after the provisional concession, Pena conveyed all his interest in the land to Mariano G. Vallejo. In 1853 Vallejo instituted proceedings, under the act of Congress of March 3d, 1851, for a confirmation of the land to him, and it was confirmed by the District Court in 1859. The decree of confirmation contained the following proviso: 'Provided that this confirmation of the above land to the said M. G. Vallejo shall be without prejudice to the rights of the legal representatives of Lazaro Pena, the original grantee, or whoever may be entitled to said lands under him; and said confirmation to said Vallejo shall enure to the benefit of any person, or persons, who may own or be entitled to the said land by any title, either at law or in equity, derived from the original grantee by deed, devise, descent, or otherwise.' The record of the confirmation was subsequently brought into this court by appeal, and here it was adjudged that the decree of the District Court, in so far as it confirmed the original grant, be affirmed. It was under this decree of confirmation that the plaintiff claimed, both through a deed of Anna Hoeppener, sole heir of Andres Hoeppener, an alleged grantee of Vallejo, dated December 21st, 1858, and secondly, by a deed dated January 17th, 1863, from Vallejo himself.

The defendants asserted ownership of the parcels of the rancho 'Agua Caliente,' now in controversy, under an alleged grant made by Vallejo to Andres Hoeppener, dated August 12th, 1846, about ten months after the grant to Pena had been approved by the Departmental Assembly.

It thus appears that both parties claimed under Pena and Vallejo, and a brief examination will show that the nature of their titles was the same. If that of the plaintiff was a legal estate (which it is not necessary to this case to decide), that of the defendants was equally so. That the right of Vallejo on the 12th of August, 1846, when he conveyed the property to Hoeppener, was not perfect, must be conceded. His claim had not been confirmed, and he had no patent. He had nothing but the Mexican espediente. Of course the right which he conveyed was also imperfect. But when afterwards the District Court confirmed the land to him, the confirmation enured to the benefit of his prior grantee. It was not the acquisition of a new title, but the establishment of his original right. And this was expressly decreed by the proviso already quoted. By that it was adjudged that the confirmation should enure to the benefit of any person or persons who owned, or were entitled to the land by any title in law or in equity, derived from the original grantee by deed, devise, descent, or otherwise. If, therefore, Hoeppener or his grantees held any such title, it was confirmed to them as truly as if he or they had been petitioners for such confirmation. Now, it is in virtue of this decree of the District Court that the plaintiff claims. He has no standing without it. Asserting his rights through it, the law will not permit him to repudiate any part of its provisions.

It is argued, however, that the proviso to the decree of confirmation was annulled by the action of this court. To this we do not assent. The judgment upon the appeal was that the original grant to Lazaro Pena was a good and valid grant, and that the decree of the District Court, in so far as it confirmed the original grant, be itself affirmed. This was no reversal of any portion of the decree of the District Court. On the contrary it left that decree in full force to all its extent. And by relation it was carried back to the inception of the title confirmed. It is a well-settled rule that where several acts concur to make a complete conveyance the original act is preferred, and all others relate to it. Mr. Cruise, in his work on Real Property, says, 'There is no rule better founded in law, reason, and convenience than this, that all the several parts and ceremonies necessary to complete a conveyance shall be taken together as one act, and operate from the substantial part by relation.' The proviso was, therefore, nothing more than a declaration of what would have been the legal effect of the decree without it. If, therefore, as is insisted by the plaintiff, the confirmation vested in Vallejo the legal title, it at the same time vested a legal estate in the grantees of Vallejo, or Pena, who held portions of the land under conveyances from the confirmees.

The second exception taken in the court below is, that the court received in evidence an instrument of writing, dated August 12th, 1846, claimed by the defendants to be a grant of the land by Vallejo to Andres Hoeppener, and this is the basis of the second assignment of error. The bill of exceptions shows that the execution of the instrument was duly proved, that it was indorsed upon the espediente to Pena, that at the time when the deed was made Hoeppener received full possession of the land from Vallejo, and that he continued thereafter in such possession until the land was sold by him. It is argued that the deed was only a license to occupy, and not a grant of the land, hence that it was revocable at will, conferring a mere tenancy-at-will and not a legal estate. Certainly it is a very informal instrument, and were the rules of the common law to be applied to it there would be difficulty in maintaining that it was a grant of the fee. It is to be noted, however, that its character and effect are to be determined by Mexican law. It was made before California had been ceded to the United States. In inquiring what was the intention and effect of the instrument we are not, then, to be guided by the rules of the common law or by the British statute of uses. That it was more than a license to occupy is plain. Its language is, 'I grant and transfer (cedo y transparo) all the right which I have in the land mentioned, to Don Andres Hoeppener, who shall make' (or have) 'such use thereof as may be convenient to him.' These are not words of mere license. They describe the subject of the grant, not as a possessory right, but as 'all the right' of the grantor 'in the land.' Full effect cannot be given to all the words of the instrument unless it is held to be a conveyance of all Vallejo's title. If the intent had been to transmit less, why describe the subject as all right in the land? It is argued that the words following the operative words of transmission to Hoeppener, viz.: 'who shall make such use thereof as may be most convenient to him,' indicate that no more than a license to occupy was intended. They do not appear to us to warrant any such inference. They, or other words of like import, are common in Mexican grants which have been held to be conveyances of the entire estate of the grantors. In the latter case the effect of such clauses is considerably discussed. Instead of being words of limitation or restriction, they seem rather intended to confer the largest dominion. And in our law they have been held to enlarge into a fee, a devise which, without them, would have been only a life estate.

If there were any doubts respecting the deed, whether it was intended as a grant or a license, they would be dispelled by noticing the construction manifestly given to it by the parties. This is an aid that may always be called in when the meaning of a contract is ambiguous. There was no necessity for reducing to writing a mere license. Yet this contract was in the form of a conveyance, reduced to writing, and indorsed upon the espediente. There was no necessity of livery of seizin if the deed was a mere license, yet Hoeppener was actually put into possession of the land by the grantor, and he or his grantees retained the possession unchallenged, so far as it appears, from August 12th, 1846, until this suit was brought. Vallejo never claimed any right until 1863, when he made a grant to the plaintiff, not of the land, but of 'all his right, title, and interest' in it. In addition to all this the plaintiff recognized a possible right in Anna Hoeppener, the heir of Andres Hoeppener, by taking a deed from her grantee, to whom she had conveyed her 'right, title, and estate' in the tract of land, in the year 1858. These facts tend strongly to show that the parties understood Vallejo's deed as conveying to Hoeppener absolute ownership of the land described in it.

It is insisted, however, that even if the intent was to convey the land, instead of mere license to occupy it, the instrument was ineffectual, because informal. It is said that it did not contain all the requisites of a valid Mexican grant. It is doubtful whether this point was made in the court below. It does not distinctly appear in the bill of exceptions that it was urged as an objection to the admission of the deed. The objection appears rather to have been that Hoeppener obtained by the deed a mere license, which terminated when he asserted title to the land, or attempted to convey it. Such was the reason stated for the objection in the bill tendered by the plaintiff. But assuming that it is presented for our consideration, we are of opinion the deed contains all that was necessary to constitute an operative grant. That it was executed and delivered, and that, in pursuance of it, Hoeppener was put into possession by the grantor, are facts that are not controverted. This is all that, under the civil law, is necessary to transfer titles. Livery of seizin is the controlling fact. Admitting that, under the Mexican law, a contract in writing was necessary to a private conveyance, it is nevertheless true that the form of the instrument was not material. Any form would answer that manifested an intent to convey. Here were words of grant (cedo y transparo). The word cedo (I grant) is the ordinary word used in Mexican conveyance to pass title to lands. Though the earlier cases in California asserted that the consideration or price of the grant must be mentioned in the written contract, or, at least, that it must be mentioned a price was paid, the later cases have asserted a different doctrine. It is quite clear that in no case could mention of a price ever have been deemed necessary when there was no price-when the transaction was a gift. In such a case a writing without mention of any consideration, coupled with livery of seizin, or delivery of possession, would consummate the transfer. It would answer no good purpose to review the authorities upon this subject. Suffice it to say, that in view of the language of the instrument, of the facts that Vallejo put Hoeppener into possession under it, and that the grantee and his successors in the title remained in unchallenged possession for more than seventeen years before this suit was brought, we are constrained to hold that it amounted to a conveyance of all right to the lands which Vallejo had.

The third assignment of error is founded upon the third exception taken in the court below. It is, in substance, that the court received in evidence a deed from Hoeppener to Carlos Glein, dated December 1, 1847. It was offered with sundry other conveyances, by which the title conveyed to Glein became vested in Whitman, one of the defendants in error. In the deed from Hoeppener, thus received, the subject of the grant was described as follows: 'All that certain tract and parcel of land, containing three hundred acres, more or less, being a portion of the rancho named 'Agua Caliente,' as transferred to the said Andres Hoeppener by M. G. Vallejo, the said three hundred acres being more particularly bounded and described as follows, to wit: On the west side by Sonoma Creek, on the east side by the Napa Hills, on the north by Yeltan's farm, and on the south by land of Ernest Rufus.' In connection with the offer of this deed it was proved that Glein, the grantee, at the time of his purchase, took possession of the tract thus conveyed (the same now held by Whitman), and paid a valuable consideration for it; and that all the succeeding grantees, including Whitman, paid valuable considerations for their grants at the times of their several purchases, and took possession of the land, remaining in open and notorious possession while their interests continued, Whitman still retaining his. It was also proved that when Steinbach, the plaintiff, acquired his title to the Agua Caliente rancho, Whitman was in the open and notorious possession of the tract, claiming to own the same.

To the admission of this deed from Hoeppener to Glein the plaintiff objected, for two reasons assigned at the time. The first of these was, that the deed did not import to convey the title to any particular tract of land; and the second was, that it created no legal estate, and that it was therefore incompetent evidence for any issue made in the action. Neither of these reasons is, in our opinion, well founded. The first rests upon a mistake of fact. We are unable to perceive that there was insufficient certainty in the description of the land granted. It was identified by giving natural boundaries for both its east and west sides, and by calls for adjoining proprietors upon the north and the south. This was enough. In regard to the second reason, we remark that the entire deed is not before us. It is not found in the record, and there is nothing, therefore, to show that it did not convey all the estate which Hoeppener had acquired by the deed to him from Vallejo. If it did not, it was incumbent upon the plaintiff in error to show the fact by exhibiting to us the deed itself. We infer, from the course of the argument, that the objection was intended only to reassert that Hoeppener's title was a mere equity. The worthlessness of that assertion has already been sufficiently considered.

The fourth exception is quite similar to the third. It is that the court received in evidence, against the objection of the plaintiff, a deed, dated November 14, 1846, from Andres Hoeppener to J. J. Dopken, whose title subsequently passed to Martha C. Watriss, another of the defendants. The deed was for six hundred and forty acres, part of the rancho 'Agua Caliente' granted to Pena, confirmed to Vallejo, and conveyed by him, as above mentioned, to Hoeppener. Standing by itself, the deed is indefinite in its description of the land intended to be granted, and an insufficient designation of the subject of the grant. But it was not offered or received alone. It was made, as will be perceived, while the country was under Mexican rule, and its offer was attended by proof of what amounted to livery of seizin-an actual putting of the grantee into possession under it, and a maintenance of that possession from 1846 until 1864, when this suit was brought. It had been admitted, when the deed was received in evidence, that Vallejo had put Hoeppener into possession of the entire rancho, and that Hoeppener continued in possession until he sold to Dopken, when he retired, and allowed his grantee to take possession of the tract sold. This was a parol identification followed by long possession unchallenged. Considering the looseness of Mexican grants at that time, and the acquiescence for so many years of the grantor and all claiming under him, we cannot say that the deed, in connection with this other evidence, was erroneously admitted.

The only remaining assignment of error is, that the court refused to allow the plaintiff to give evidence in rebuttal to prove that, even if the deed shown by the defendants from Hoeppener did make out an equity in his grantees, Hoeppener failed to perform the conditions upon which Vallejo's grant was made to him, upon which the equity rested, and, therefore, that the equity expired.

A few words will dispose of this. If the assignment correctly represented what was the ruling of the court, it would be a sufficient answer to it, that the deed from Vallejo to Hoeppener was unconditional, and, therefore, that his title, and that of his grantees, was not dependent upon the performance or non-performance of conditions. But the court made no such refusal as that of which the plaintiff complains. What the court did rule was, that Hoeppener's statements, made after he had conveyed the land to others, could not be admitted to invalidate his deeds. Surely such a ruling requires no vindication.

Finding no error in the record, the judgment is

AFFIRMED.


text: Talk:Steinbach v. Stewart/Opinion of the Court

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


text:
Ludlow v. Ramsey

APPEAL from the Circuit Court for the Eastern District of Tennessee, the case being thus:

The code of Tennessee of 1857-8, under its chapter on 'Attachments,' enacts that a plaintiff after action for any cause has been brought may, when the sum claimed exceeds $50, on giving bond, &c., sue out an attachment at law or in equity against the property of a defendant in the following cases:

'Where he is about to remove or has removed himself from the State.

'Where he absconds or is absconding or concealing himself or property.'

The code continues:

'In order to obtain an attachment, the plaintiff, his agent, or attorney, shall make oath in writing stating the nature and amount of the debt or demand, and that it is a just claim.'

Subsequent sections provide for notice of the attachment by publication, declaring that the attachment and publication are in lieu of personal service.

With these provisions of the code in force, Mrs. Cynthia S. White, having a suit pending against one Ramsey, applied, September 18th, 1863, to the State Chancery Court at Knoxville, Tennessee, for an attachment against a portion of the said Ramsey's property. The affidavit filed was thus:

'Your orator, Cynthia S. White, a citizen of Knox County, respectfully represents unto your honor that she holds a bond on J. G. Ramsey, dated July 17th, 1860, payable six months after date, with lawful interest from date, for $300, a copy of which note is hereunto appended, the original of which shall be produced in the final hearing of this cause. Your orator shows that the said Ramsey has left this State, or so conceals himself that the ordinary process of law cannot be served upon him. He was the owner of a considerable estate, both real and personal, in Knox County. The premises considered, your orator prays that the said J. G. Ramsey be made a party defendant to this bill; that process of subpoena and attachment issue, and that a sufficient amount of said estate be attached to satisfy your orator's demand. She prays for publication, and, on the final hearing, she prays for the sale of said property, and for an account, if necessary.'

A copy of a note, such as was described in the affidavit, was annexed to it, but as the reader will have observed, nothing is said in the affidavit as to the justness of the debt to secure which the attachment was prayed for.

Having given the requisite bond an attachment was issued, and a house and lot in Knoxville, belonging to Ramsey, was duly attached, as appeared by the sheriff's return to the writ, no personal property being found. At the January rules, 1864, order of publication was made in the Knoxville Whig, a newspaper published in Knoxville, to notify the defendant to appear on the first Monday of April, 1864, and make defence, or that judgment would be taken pro confesso against him. In October Term a decree was rendered for the amount of the debt, and directing the master to sell the property attached. The master duly advertised it for sale, and bid it off, January 3d, 1865, to one Vail for $5100. The sale was reported to, and confirmed by, the court, and a writ of possession was issued, but was opposed by persons occupying the premises. Subsequent proceedings, however, were taken, which finally resulted in putting Ludlow into possession, he having purchased the property of Vail.

Ramsey now filed a bill (subsequently amended) in the court below against Ludlow, to set aside the sale thus judicially made of the house and lot, and to recover the rents and profits. His allegation was that the property was sold for $5100, a sum which was not more than half its value, to pay a claim of $332; that he had another house just beside the one sold of less value than it, and two farms not far off, a limited number of acres of which might have been sold; all of which the sheriff certainly knew of; that he himself knew nothing of the institution of the suit until long after the sale was made, and the decree confirmed.

He alleged further, that the proceedings by which the property was sold were null and void. Referring to the publication in the newspaper at Knoxville, giving him notice to appear and defend the original suit, or that judgment would be taken pro confesso against him, his bill alleged that he left Knoxville shortly before the Federal troops arrived; that at the time when the attachment was sued out, and when the publication was made, he was in no situation to see or know of the same; that Tennessee was held by Federal troops, and he in the country held by the Confederate troops; and that no newspapers that were published within the Federal lines were allowed to be sent into the Confederate lines; that there were no mail facilities between them, and the only communication was by a flag of truce; that a great civil war was raging between the confederate government and the United States, and martial law existed in the State of Tennessee, and civil courts were only held by the will of military commanders. In his amended bill he alleged that when the attachment was issued, and the proceedings had, he was known to be one of the enemy of the party governing by arms the locality of the court, and that it was known that he could not have notice of the suit, could not appear at the court, and could have no communication with others at the place of the court, &c.

The bill further set forth that in September, 1864, the United States seized the property in question as forfeited, and in October of the same year filed an information against it; that Mrs. White had asked and obtained leave to intervene, and did intervene in December, 1864, prior to the date of the sale under the attachment, and it charged that by filing the said intervention in the District Court, Mrs. White had virtually abandoned her attachment suit in the Chancery Court, and that she relied upon having her debt made in the District Court, as provided by the act of Congress which authorized the seizure; and that these proceedings in the District Court gave the United States a prior lien upon the property, the same as if it had been seized by the United States prior to the issue of the attachment bill in the Chancery Court, and that the Chancery Court had no authority to proceed with the sale of the said property, and have the sale confirmed after the said proceedings had been commenced in the District Court of the United States.

As respected the facts it seemed that the property was estimated variously from $6000 to $10,000; that the complainant had another house and lot close by of less value, and a farm; that he had been engaged in rebellion against the United States, and on that account had left Knoxville, the place of his residence; and though no record of the proceeding in the District Court for forfeiture was produced, it was yet admitted by the defendant that the mere facts of seizure, information, and intervention alleged, were correctly alleged, but it appeared also that Ramsey produced to the District Court a pardon from the President for his complicity in the rebellion, and that the proceedings being thus ended, the purchaser under the attachment obtained possession of the property under a writ of possession issued from the Chancery Court of the State.

The court below held that, 'for want of a sufficient affidavit,' the attachment issued at the suit of White was insufficient; that the Chancery Court of the State acquired no jurisdiction; and that all the proceedings therein 'were null and void,' and that as they had no other effect than to throw a 'cloud' upon Ramsey's title, the removal of it the court regarded as ground for jurisdiction and relief, and granted the relief prayed for. Ludlow accordingly brought the case here.

Messrs. Lander and Moore, in support of the decree:

The case is one of such extreme hardship that the court will scan with eagle eyes the regularity of the proceedings by which the title set up is sought to be maintained. A valuable lot in Knoxville, worth more than thirty times the amount of the debt due to White, was levied on when there were other pieces of property not a stone's throw from it far less valuable; yet abundantly sufficient to pay the debt, notoriously known to be the property of the appellee. Yet this valuable piece of property was levied on and sacrificed. Now we say:

1. The affidavit upon which the attachment was obtained, does not meet, in form or in substance, the requirements of the law as expounded in numerous cases. The language of McKinney, J., in one of them, Thompson v. Carper, has been often cited, and seems conclusive of the case.

title: Ludlow v. Ramsey


text:
Page:Juvenal and Persius by G. G. Ramsay.djvu/19

Rh Tiburtine farm was to contribute a fat kid, with other farm produce, pears, grapes, and apples, together with asparagus gathered in the intervals of her spinning by his bailiff's wife.

A passage in xv. 45 records the fact that Juvenal had visited Egypt:—

luxuria, quantum ipse notavi, Barbara famoso non cedit turba Canopo;

—a positive statement which cannot be put aside because in his fifteenth Satire the poet makes a geographical mistake as to the proximity of Ombi to Tentyra, nor yet made too much of in connection with the statement in the Biography falsely attributed to Suetonius, to the effect that Juvenal had been sent into Egypt in his old age as a form of banishment.

That Juvenal had received the best education of his time and had been trained in the moral principles of the Stoics is apparent from the whole tenour of his teaching. The statement in xiii. 121–123 that he had not studied the doctrines of the Cynics, Epicureans, or Stoics seems only to refer to the more philosophical parts of those systems.

There are three passages in the poet Martial (Epp. xxiv. and xci. and Epp.  xviii.) in which Rh Rh


text: Talk:Ludlow v. Ramsey

title: Talk:Ludlow v. Ramsey


text:
Ludlow v. Ramsey/Opinion of the Court

2. Ramsey obtained his pardon from the President of the United States, and whatever may have been his sympathies with the rebellion, he has a legal right to allege the fact of the existence at the time of a public war, and that being within the lines of the rebel authorities, he had no possible opportunity to defend the suit against him, nor to obtain any information of the existence of such a proceeding.

This court has recognized the war of the rebellion to have been a public war, and the fact that Ramsey before the Federal army took possession of the country around Knoxville had resided there and voluntarily left it and gone to another State, although it might have some weight in determining his status in a proceeding by the government against him, cannot avail Ludlow in a suit of this kind.

The law has been settled with respect to parties situated as these parties were during the war. In Dean v. Nelson, the court say that 'the defendants were within the Confederate lines, and that it was unlawful for them to cross those lines.' Two of the defendants there had indeed been expelled from the Union lines, and could not return, so that an attempt may be made to distinguish that case from this, but as the report in that case states, 'the other had never left the Confederate lines.' As to him, Dean v. Nelson cannot be distinguished from this case; and even as to the other two, why had they been expelled? only in retaliation on rebels. They were as faulty as the one who remained all the time in the rebel lines. Yet of all three the court say in Dean v. Nelson:

'A notice directed to them, and published in a newspaper, was a mere idle form. They could not lawfully see nor obey it. As to them the proceedings were wholly void and inoperative.'

3. Prior to the sale under the attachment Mrs. White intervened in the proceedings for confiscation, and by virtue of the provisions of the act of Congress had the privilege of asserting any right that she had. Now when the proceedings in the District Court were quashed, Ramsey, who had been pardoned, and all whose guilt had been wiped away, became possessed of his property. The State court had no power to vacate the order thus restoring his estate to him, and in giving it to Ludlow in virtue of the sale under the attachment, it acted in contempt of the Federal judiciary.

Messrs. Maynard and Nelson, contra, for the appellant.

Mr. Justice BRADLEY delivered the opinion of the court.

As the bill in this case is a collateral proceeding to set aside the sale, mere errors and irregularities in the original proceeding will not suffice. It must be shown that the court had no jurisdiction. We had occasion, recently, in the case of Cooper v. Reynolds, which came from the same district as this case, and also arose upon an attachment, to examine this question, and it is unnecessary to repeat what was then said. The question is, did the court acquire jurisdiction of the case? It is not denied that it has general jurisdiction of attachments in such cases. The code expressly says, that any person may sue out an attachment in the Chancery Court, upon debts or demands of a purely legal nature, except causes of action founded on torts, whenever the amount in controversy is sufficient to give the court jurisdiction. Fifty dollars gives the court jurisdiction, and the amount here is over $300. The judge below, in his decree, relies on the want of a sufficient affidavit. We have compared the affidavit with the requirements of the statute, in the light of the cases cited by the appellee's counsel, and we see in it no defect which should make the proceedings unll and void. True, it does not say that the debt is a just claim; but it states the amount of the debt, and that it is on the defendant's note or bond, a copy of which is appended, showing that it was made under the defendant's seal, and contained a promise to pay to the complainant or order three hundred dollars, six months after date, for value received, with interest from date. This is a particularity beyond the requirement of the statute, and more than compensates for the omission of the statement that it was a just claim. The dictum of Judge McKinney, in 11th Humphrey, 545, so often quoted, that 'it should be stated in the affidavit, and alleged in the attachment, that a suit has been commenced by the plaintiff against the defendant, the nature thereof, the tribunal in which it is depending, the amount of damages laid in the action, and that the cause of action stated is just,' relates to an ancillary attachment in a suit brought for an unliquidated demand, and is suggested by him as a sufficient affidavit in such cases, in which it is impossible for the plaintiff to swear (as he can do in debt) to the precise amount due. In this case the complainant not only swears to the amount due, but exhibits a copy of the defendant's bond or note, under seal, in effect admitting the debt and promising to pay it. We cannot believe that the courts of Tennessee would hold such an affidavit defective even, much less so absolutely void as to vitiate all the subsequent proceedings.

The writ of attachment appears to be in due form and to have been regularly served on the property; so that the court became fully possessed of jurisdiction over the case. Our attention has not been called to any other defect in the proceedings that amounts to anything more than a mere irregularity, unless the points next to be considered should be regarded as doing so.

First. It is averred by Ramsey in his bill in the present suit that at the time when the attachment was sued out, and when the publication was made in the newspaper at Knoxville notifying him to appear and defend the original suit, or that judgment would be taken pro confesso against him, he was in no situation to see or know of such publication, and he makes various allegations in confirmation of that statement, that he was in the country held by Confederate troops, &c.

On these allegations the question arises, Why was the complainant in the country held by Confederate troops? Why could he not return to Knoxville? Why could he not have communication with that place? It was his place of residence. He says that he left Knoxville a short time before the Federal troops arrived. Why did he leave? Was he forced to leave, and was his return forbidden? Could he not have returned at any moment by submitting to the authority of the United States? Was not his absence a voluntary one? The order of publication was made at the January rules, 1864. President Lincoln's proclamation of amnesty was issued on the 8th of December previous, offering pardon and amnesty to all persons who would take the oath of allegiance. Then what obstacle existed to prevent the complainant's return? The causes alleged were certainly insufficient.

This case differs from that of Dean v. Nelson, decided at the present term. In that case Nelson and his wife were driven out of Memphis by a military order and were not permitted to return, and the proceedings to foreclose their property took place during their enforced absence. The other defendant, May, was only nominally interested, and had always been within the Confederate lines. But if, as in this case, a party voluntarily leaves his country or his residence for the purpose of engaging in hostilities against the former, he cannot be permitted to complain of legal proceedings regularly prosecuted against him as an absentee, on the ground of his inability to return or to hold communication with the place where the proceedings are conducted. That would be carrying the privilege of contra non valentem to an unreasonable extent. We think it cannot be set up in this case.

In the next place, it is alleged that the jurisdiction of the Chancery Court was displaced by proceedings to confiscate the property in the District Court of the United States, and a seizure made for that purpose, by order of the district attorney, on the 21st of September, 1864. No record or transcript of the alleged proceedings in the District Court was given in evidence in this suit; at least, none appears in the record before us. It is conceded that no confiscation took place. Ludlow, the respondent below, the appellant here, admits that proceedings were commenced by information filed October 10th, 1864; but states and shows that Cynthia S. White intervened to protect her interest and insist on her prior levy, made almost a year before the seizure in behalf of the United States; that Ramsey pleaded the President's pardon, and thus obtained a release of his property and an end of the confiscation proceedings; and that a writ of possession was afterwards awarded by the Chancery Court on the application of Ludlow, and possession was delivered to him accordingly in execution of the decree of said court. It is said that these proceedings were in contempt of the District Court. Though that be so, the matter is not before us, and we cannot adjudicate upon it. If the United States authorities had the right to seize the property, and take it out of the hands of the law, as a preliminary step to proceedings for confiscation, it would nevertheless seem to be the right of the Chancery Court to reassume possession when the confiscation proceedings failed and came to an end. And though the writ of possession awarded by that court may have been irregularly issued (which it is not necessary for us to decide), Ludlow, the purchaser of the chancery title, was in fact put in possession, and as between him and Ramsey, he has the better title. An ineffectual attempt at confiscation, supervening upon the chancery proceedings, cannot deprive those proceedings of legal validity.

DECREE REVERSED.

title: Ludlow v. Ramsey/Opinion of the Court


text: Talk:Ludlow v. Ramsey/Opinion of the Court


text:
Reed v. United States

APPEAL and cross appeal from the Court of Claims, in the claim of Reed and others; the case, as found by the said court, being this:

'The claimants were, on the 1st of June, 1865, owners of the steamer Belle Peoria. She was then lying at her wharf in St. Louis. The said owners were applied to by the United States quartermaster, at St. Louis, to take a cargo of military supplies to Fort Berthold, on the Missouri River, about 1700 miles from St. Louis. They declined on account of the lateness of the season. They were then ordered by the quartermaster to prepare for the trip, and informed that in case of refusal the boat would be impressed. They protested, but, under the orders, got the boat in readiness, put on the cargo, and left St. Louis on the 3d of June, 1865. The boat arrived at Fort Berthold on the 22d of July, 1865, discharged her cargo, and started on her return trip on the 24th of the same month. She proceeded until the 26th, when a high wind sprung up, and she, in attempting to land, was blown aground. All efforts to get her off proved unavailing. After making all the effort that was deemed advisable, and finding it impossible to get her off until a rise should occur in the river, the officers and crew left her, leaving several persons in charge. The crew left her on the 31st of July, 1865, leaving on board one engineer, one mate, and three watchmen, who were to take care of the boat. These remained until the 30th September. The officer in command at Fort Rice also detailed and sent a military guard to protect the boat. The facts being communicated to the owners at St. Louis, they made their protest in order to cover the insurance. The boat remained aground until about the 15th of April, 1866, when by an ice freshet in the Missouri River she was swept off and totally destroyed.

The quartermaster at St. Louis, when he seized the boat, fixed her per diem compensation at $272. She was paid at this rate until the 10th day of August, 1865, being the time when information arrived at St. Louis that she was aground, and the captain and part of the crew returned. She was also paid, from the 10th of August to the 30th of September, at the rate of $101 per day. This was while the engineer, mate, and watchmen remained on board. From the 30th of September until the 30th of November, 1865, vouchers were issued to the claimants at the rate of $80 per day, which have not been paid. No vouchers were issued after that date. On the 3d of April, 1866, the claimants dispatched a pilot and crew up the Missouri River from St. Louis to where the boat was aground, to get her afloat upon the rise of the river, and to bring her down to St. Louis. These persons arrived at where the boat had been aground, about the 18th day of April, 1866, and after the boat had been destroyed by the flood and ice. These persons were sent, after consultation with the quartermaster at St. Louis, and for the purpose of protecting the interests of the United States, as well as those of the claimants. The just and necessary expense incurred in these efforts to save the boat amounted to $2500.

After the destruction of the boat, the claimants applied to the third auditor, under the provisions of the act of 1849, and its supplements, for the payment of her value. These acts provide:

'That any person. . . who shall lose. . . or have destroyed by unavoidable accident any. . . steamboat. . . while such property was in the service (of the United States), shall be allowed and paid the value thereof, at the time he entered the service. Provided, it shall appear that such destruction was without any fault or negligence on the part of the owner of the property, and while it was actually employed in the service of the United States.'

The claim was allowed and her value, as of the time of her taking, June 1st, 1865, fixed at $30,000, and which amount was paid to the claimants. The accounting officers rejected the claim for the per diem compensation from September 30th, 1865, until April 15th, 1866, when the boat perished, including the vouchers until November 30th, 1865. The accounting officers also rejected a claim for $5401.41, alleged to have been expended in efforts to save the steamboat.

This suit was brought to recover the amount of these vouchers, and the per diem compensation of the boat from November 30th, 1865, to April 15th, 1866, and also the expenditure made in efforts to save the boat, making together the sum of $21,161.41.

The court decided that the claimants were not entitled to recover the amount of the vouchers up to the 30th of November, 1865, nor for the per diem compensation of the boat from November 30th, 1865, till the 15th of April, 1866, but were entitled to recover the $2500, in efforts expended to save the boat.

From this decision both parties appealed. The claimants, because they did not have compensation for the use and detention of the boat from the 30th September, 1865, when engineer, mate, and watchmen left the boat, until the 15th of April, when she was'swept off and totally destroyed.' The United States appealed, because they were charged with this $2500 expenses.

Mr. William Lawrence, of Ohio, for the claimants:

I. As to the appeal by the claimants: The facts as found show that the implied contract was, to pay for a round trip, which means all the time necessary to make it, or until it became impossible.

From September 30th, 1865, when the engineer, mate, and watchman left the boat, until she was destroyed by an ice freshet, April 15th, 1866, she was guarded by a government military guard detailed by the officer in command at Fort Rice. The object of this was, to return the boat to St. Louis the next spring. The boat was blown aground July 26th, 1865. Such officers and crew as were not necessary to guard the boat, left her, because there was no hope of getting the boat off until the next spring, and it was desirable to save expense. Up to this time, from June 1st, the government paid the full per diem compensation of $272, fixed by the quartermaster. Why pay for this part of the return voyage if it was not agreed that all should be paid for and no matter how long it might require, as long as any voyage was possible?

From August 10th to September 30th, during which time one engineer, one mate, and three watchmen of the crew remained aboard, and the boat aground, payment was made at the rate of $101 per day. Here was a reduction in the per diem-a modification of the original contract-because more of the crew were discharged. Why was a reduced per diem paid? Still, because the agreement, to pay until the boat returned to St. Louis in the spring, or the voyage was abandoned as impracticable, continued.

From September 30th to November 30th, 1865, quartermaster's vouchers were issued to the plaintiffs, at the rate of $80 per day. The quartermaster was the officer charged with the duty of providing transportation, and his vouchers prove that his contract was a continuing one till the return of the boat; a matter then contemplated as certain to take place in the spring. That arrangement could not be terminated except by mutual consent, and it never was terminated until the boat was destroyed.

The boat was destroyed and the voyage rendered impossible April 15th, 1866, and not before. The right of the owners to recover the value of the boat from the government, depended by the statutes applicable to the case (those of March 3d, 1849, and March 3d, 1863), on the fact that it was then 'actually employed in the service of the United States.' Under these acts the third auditor allowed the claim of $30,000 for the value of the boat as of the time of her taking, June 1st, 1865, and the claim was paid by the government. This allowance and payment necessarily found the fact that the boat was actually employed in the service of the United States on the 15th April, 1866, and the government is now estopped from controverting that fact. If the boat was in the actual service that day it had been in like service during all the previous time, and the facts show it was in such service under contract for pay.

When the captain and most of the crew, abandoning all hope of bringing the steamer to St. Louis during the current season, left her to lie aground till the next spring, there was no purpose to abandon the return voyage, but the purpose was to resume it as soon as the rise of the river made it practicable. All this was with the sanction of the government, and the boat left in charge of government officers and soldiers, to the end that the return trip might be completed next spring. The facts determined by the Court of Claims show that it 'was impossible to get her (the boat) off until a rise should occur in the river.'

The justice of this claim is clear. The court takes judicial notice of climate and rivers. The court know that the plaintiff's boat could have navigated the rivers south of St. Louis, and it is presumed would have earned freight from September 30th, 1865, to April 15th, 1866. The plaintiffs, when applied to by the quartermaster, on June 1st, to go from St. Louis, 1700 miles up the Missouri River, to Fort Berthold, 'declined on account of the lateness of the season.' They knew that the treacherous sands of the Missouri, and hazardous gales and receding waters, would probably, as they did, leave them aground for the winter, and deprive them of safer trade, and pay which required no quartermaster's vouchers, no auditor's adjustment, no Court of Claims, no lawyer's fees, and none of this almost endless delay. And having been deprived of the winter's trade in milder waters, and of speedier pay, why should they not now be paid, as the Constitution requires, 'just compensation' for all the time their boat was detained by reason of what the government officers did? They only ask that compensation which they could have earned elsewhere, for compensation for time during which the government has admitted their boat was 'actually employed in the service of the United States.' Why should they not have it?

The grounding was not the proximate, nor even remote cause which destroyed her. The facts found by the Court of Claims are that the boat, on her return trip, was blown aground July 26th, 1865, and that—

'The boat remained aground until about the 15th of April, 1866, when, by an ice freshet in the Missouri River, she was swept off and totally destroyed.'

The ice freshet, then, was the proximate, and really the only cause of the loss. The grounding was a peril, but it did not continue, for the boat was 'swept off' from her grounding peril, and a totally different peril finally, and after the termination of the grounding, destroyed her. They may have been successive or cumulative perils, but the grounding was in no sense a continuing peril, which finally destroyed the boat. If the claimants had sued the United States and averred a destruction of the boat only by the grounding, the evidence would not have sustained the allegation. The government has already decided that the boat was in the actual service of the United States on the 15th April, 1866, and there could be no constructive actual loss before that.

It is text in the law of insurance that grounding is not a constructive total loss. Parsons says:

'So stranding, which means the being cast on shore, may or may not be an actual total loss. The mere fact that she (the boat) rests on land or rock, and at low tide is high and dry there, does not, of itself, constitute this total loss; for the next high tide may lift her from the bottom, and if it cannot do this without assistance, it may be practically possible to use means to draw her off.'

In Patrick v. Commercial Insurance Company, Kent, C.J., says:

'It is well understood that stranding is not ipso facto a total loss.'

So in Peele v. Suffolk Insurance Company, Parker, C.J., said:

'The mere stranding, however perilous, is not of itself a total loss, for the vessel may be relieved, and the damages may be small.'

The finding does not show the destruction of the boat by the grounding; nor any facts which would justify an abandonment as for total loss. The date and fact of the liability of the United States is only fixed by the proximate cause of the loss-the ice freshet of April 15th, 1866. This is the reasonable rule as against insurers on a policy, and is certainly so as to the United States, under the act of March 3d, 1849.

Suppose, in this case, the contract had provided that in no event should the boat be continued in service longer than April 1st, 1866, by the very terms of the law the United States could not have been held liable for the destruction of the boat on the 15th of April, because the boat was not then destroyed. There was then no liability for the boat fixed until April 15th, and if not the liability for services continued to that time.

Although there was a protest made to cover the insurance, there was no abandonment of the voyage when the vessel ran aground, nor till the boat was finally lost. When the protest was made does not definitely appear, but it was made 'in order to cover the insurance,' not against the United States, but under a supposed or real policy of insurance. The boat was blown aground July 26th. Then, as the facts show—

'All efforts to get her off proved unavailing, and finding it impossible to get her off until a rise should occur in the river, the crew left her on the 31st July, 1865, leaving on board one engineer, one mate, and three watchmen to take care of the boat.'

The engineer, watchmen, and mate remained on board until September 30th. The United States officer in command at Fort Rice detailed and sent a military guard to protect the boat, and they remained until her destruction. The officers left her with the assent of the government, as an economic measure to save the useless expense of a crew. Then the case shows that—

'On the 3d of April, 1866, the claimants dispatched a crew up the Missouri River, from St. Louis, to where the boat was aground, to get her afloat upon the rise of the river, and to bring her down to St. Louis."Down to St. Louis' for whom? Of course for these plaintiffs. Here is the highest evidence that there never was any intention to abandon the boat. Neither the United States nor any insurance company ever took or held the boat as theirs; never accepted any abandonment, and never were asked to do so. No protest or notice was ever served on the United States, nor in fact on any insurance company; nor was any demand made on the United States for pay for the value of the boat until after she was destroyed. But the protest, as affecting rights under a policy of insurance, against an insurance company, was at most only precautionary; and a mere precautionary measure, never perfected or pursued, cannot establish any right under a policy, much less under another contract.

The boat was in the service of the government, under a contract for a return trip. If the ice freshet had not destroyed the boat, it would have been completed. The crew was sent up the Missouri River in the spring of 1866, for the purpose of completing it. All parties treated the contract as subsisting up to that time. If it had been completed no question would have been raised against the right to pay for the use of the boat during the whole time.

II. As to the cross-appeal by the United States; the claim for time, services, and expenses of the crew sent to recover and return the boat in April, 1866.

The boat was in the custody and under the control of the government when she went aground, July 26, 1865.

On the 31st July, 1865, the crew left the boat in care of a military guard, with the approval of the military officers, to save expense, intending, however, 'to get her off' when 'a rise should occur in the river,' in the spring.

The crew was sent out in April, 1866, 'after consultation with the quartermaster at St. Louis, and for the purpose of protecting the interests of the United States as well as those of the claimants;' that is, the crew was sent up to return with the boat to St. Louis.

The boat was 'actually employed in the service of the United States,' April 15, 1866, and the destruction of the boat 'was without any fault or negligence on the part of the owners.' The case so comes within the statute.

As to the services and expenses of the crew, here are all the elements of an implied if not an express contract by the government to pay for them. They were rendered and incurred at the instance and request of the proper military officer, or with his sanction, and this was in pursuance of the pre-existing arrangement made when the crew left the boat, July 31, 1865, and the original purpose of the voyage. If the crew had succeeded in returning the boat to plaintiffs at St. Louis, could any question have been made as to the liability of the United States to pay? The services of the crew were only suspended during the winter; they had not abandoned the service.

Mr. Akerman, Attorney-General, and Mr. Talbot, Assistant Attorney-General, contra.

Mr. Justice CLIFFORD delivered the opinion of the court, both in the appeal by Reed and the cross appeal by the United States.

title: Reed v. United States


text: Talk:Reed v. United States

title: Talk:Reed v. United States


text: 1911 Encyclopædia Britannica/Duff-Gordon, Lucie


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

I. IN THE APPEAL.

Affreightment contracts are of two kinds, and they differ from each other very widely in their nature as well as in their terms and legal effect.

Charterers or freighters may become the owners for the voyage without any sale or purchase of the ship, as in cases where they hire the ship and have by the terms of the contract, and assume in fact, the exclusive possession, command, and navigation of the vessel for the stipulated voyage. But where the general owner retains the possession, command, and navigation of the ship and contracts for a specified voyage, as, for example, to carry a cargo from one port to another, the arrangement in contemplation of law is a mere affreightment sounding in contract and not a demise of the vessel, and the charterer of freighter is not clothed with the character or legal responsibility of ownership.

Unless the ship herself is let to hire, and the owner parts with the possession, command, and navigation of the same, the charterer or freighter is not to be regarded as the owner for the voyage, as the master, while the owner retains the possession, command, and navigation of the ship, is the agent of the general owner and the mariners are regarded as in his employment and he is responsible for their conduct.

Courts of justice are not inclined to regard the contract as a demise of the ship if the end in view can conveniently be accomplished without the transfer of the vessel to the charterer, but where the vessel herself is demised or let to hire, and the general owner parts with the possession, command, and navigation of the ship, the hirer becomes the owner during the term of the contract, and if need be he may appoint the master and ship the mariners, and he becomes responsible for their acts.

On the first day of June, 1865, the assistant quartermaster of the United States, stationed at St. Louis, applied to the plaintiffs, as the owners of the steamboat Belle Peoria, to transport a cargo of military supplies from that port to Fort Berthold, but the owners of the steamboat declined on account of the lateness of the season. He then ordered them to prepare for the trip, and informed them that in case of refusal the steamboat would be impressed. They protested, but under the orders given got the boat in readiness, put the cargo on board, and on the 3d of June, 1865, left St. Louis for the place of destination where the steamboat arrived on the 22d of July following, when she discharged her cargo and on the 24th of the same month started down the river on her return trip. She proceeded for two days in safety, when a high wind 'sprung up,' and in attempting to land she was blown ashore and grounded. All efforts to get her off proved unavailing, and believing it impossible to do so until a rise should occur in the river, the master, most of the other officers, and crew decided to return, leaving on board the mate, one engineer, and three watchmen to take care of the boat, aided by a military guard detailed and sent from Fort Rice by the officer in command at that post. Information that the steamboat was aground reached the owners at St. Louis on the 10th of August, 1865, but she remained aground until the 15th of April of the next year, when she was swept off by an ice-freshet in the river and totally destroyed. When the assistant quartermaster ordered the owners to prepare for the trip he fixed the per diem compensation of the boat at $272, which appears to have been satisfactory to the owners, as they were paid at that rate to the time they received information of the disaster, and they have presented no claim for any greater allowance for that period of time. They were also paid at the rate of $101 per day from the said 10th of August to the 30th of September in the same year, covering the period, as stated in the finding, that the mate, engineer, and the three watchmen remained on board after the master and the rest of the officers and crew returned. Vouchers were also issued to the plaintiffs at the rate of $80 per day from the 30th of September of the same year to the 30th of November following, but those vouchers have never been paid or recognized, and the plaintiffs sued the United States for the amount of those vouchers and for compensation for the use of the steamboat at the same rate from the time the last voucher was issued to the time when the steamboat was swept off from the place where she was grounded by the ice-freshet in the river and totally destroyed.

Although the plaintiffs objected to the order of the quartermaster at the time it was given, still it is quite evident that they ultimately consented to perform the service as matter of contract, and that they were content to receive the per diem compensation fixed by the assistant quartermaster at the time he gave the order. Abundant confirmation of that view is found, if any be needed, in the fact that they voluntarily accepted the prescribed per diem compensation from the commencement of the trip to the 10th of August following, when they received information of the disaster, which was at the time when the master and all the steamboat's company, except the mate, one engineer, and three watchmen, returned to the port of departure, and that the plaintiffs make no claim for any additional compensation during that period. Compulsion is not set up by the plaintiffs, and, if it was, the theory could not be supported, as the jurisdiction of the Court of Claims does not extend to torts. They have also been paid for the value of the steamboat, and also a per diem compensation of $101 per day from the 10th of August to the 30th of September, which is the date when the mate, engineer, and the three watchmen also left the steamboat and returned to St. Louis. No additional compensation is claimed for that period, but they claim for the amount of the vouchers issued at the rate of $80 per day for the two months next succeeding that period, and at the same rate from the end of that period to the 15th of April in the following year, when the steamboat was swept off by the ice-freshet and was totally destroyed.

Judgment was rendered for the claimants for certain moneys, not involved in this appeal, which were expended by them in efforts to save the steamboat, but the petition, so far as respects the per diem compensation, was dismissed, and the claimants appealed to this court.

Throughout the litigation the plaintiffs have prosecuted their claim as a matter of contract, and it is quite clear that it could have no other foundation in the court where the suit was brought, and of course it must depend upon the proper application of the principles of commercial law to the facts of the case as found by the Court of Claims.

By the terms of the contract, they were to carry the cargo of military supplies from the port of St. Louis up the Missouri River to Fort Berthold for $272 per day during the voyage, including the return trip as well as the trip to the place of destination, in full compensation for the entire services. By necessary implication the plaintiffs were to victual and man the steamboat and keep her in a seaworthy condition, and in contemplation of law they retained the possession, control, and navigation of the steamboat, as the master was one of their own selection and the crew were in their own employment, and they were responsible for their conduct. Steamers require fuel as a means of creating motive power, and it is quite obvious that it was the duty of the plaintiffs to supply the steamboat with fuel for that purpose as well as provisions for the officers and crew, and that the master was their agent and not the agent of the charterers. Well-founded doubts cannot be entertained upon that subject, and if those conclusions of fact are correct then it follows as a conclusion of law that the plaintiffs, as the general owners of the steamboat, were also the owners for the voyage and that the true relation of the United States to the adventure was that of a charterer for hire and shipper of the cargo.

Through the assistant quartermaster at St. Louis the United States put the cargo on board the steamboat, at a fixed per diem compensation during the round trip, for transporting the military supplies constituting the cargo to the place of destination, the steamboat having the right to take a return cargo from other shippers or to return in ballast, at the election of her owners. She performed the trip up the river and delivered the cargo in good condition and started on the return trip, the United States, as the charterers, having no further interest in the voyage except that the steamboat should return to the port of departure without delay. All sea risks were unquestionably upon the owners of the steamboat, as they were the owners for the voyage as well as the owners in fact, and the record shows that they must have so understood their own rights, as the statement in the record is that when they received information of the disaster 'they made their protest in order to cover the insurance.'

Suggestion may be made that the act of the United States in paying for the value of the steamboat after she was swept off by the ice-freshet and destroyed is inconsistent with the theory that they were merely the charterers for hire, and that the plaintiffs were the owners for the voyage as well as the owners in fact, but the adjudication of the third auditor cannot change the rights of the parties in respect to any matters not within his jurisdiction. Whether that adjudication was correct or incorrect is not a question in this case, and it is only referred to as showing that it cannot have any weight in the decision of the case before the court.

Freight, it is said, cannot be earned unless the voyage is performed and the cargo is delivered; but the voyage in this case, so far as respects the cargo, was performed and the cargo was duly delivered to the consignees, and to that extent the freight was earned; but the plaintiffs were entitled, under the contract, to the same per diem compensation during the return trip in case it was performed without unnecessary delay, and it may be that the United States could not have claimed any deduction from the agreed compensation if the interruption in the voyage had been only a temporary one, and the master, when the cause of interruption had been removed or overcome, had proceeded with the steamboat to the return port.

Whatever repairs became necessary in consequence of the disaster would have been a charge to the steamboat or her owners, but it may be that the plaintiffs would have been entitled to the agreed compensation for the days spent in executing the repairs as well as for the days actually spent in the return trip, but it is not necessary to decide those questions in this case, and the court does not express any decided opinion upon the subject.

But the interruption in the voyage was not merely a temporary one of any proper sense of the term. On the contrary the voyage was completely broken up, as fully appears from the fact that the master and all the crew ultimately abandoned the steamboat, leaving her where she was stranded, and that she remained there until the 15th of April of the next year, when she was swept off by the ice freshet and became a total loss. Broken up, as the voyage was, by the perils of navigation, no doubt is entertained that the plaintiffs were entitled to the agreed per diem compensation to that time, and to such further allowance at the same rate and for such additional time as it would have required for the steamboat to have completed the return trip. They had performed the whole of the stipulated service for the United States and had delivered the cargo to the assignees, and were proceeding on the return trip in good faith, when the voyage was broken up by causes beyond their control and without any fault on their part or on the part of the master or crew

Unless a carrier assumes the risk of all contingencies, he is not liable because he fails to perform what is rendered impossible by the perils of the sea. Such events as are known as the accidents of major force, or fortuitous events, or the acts of God, always constitute an implied condition in every such engagement. Neither party is at liberty to abandon the contract without the consent of the other, or without legal cause, and such cause must not be one procured or occasioned by the fault of the party who relies upon it.

Different views have been expressed by different courts as to the effect of a temporary interruption of a voyage upon the rights of the owner of the ship and the shipper or charterer; but the rule seems to be well settled, that when the voyage is broken up by a sea peril, that neither the shipper nor the charterer is in general liable to the ship-owner beyond the time when the peril occurred; but that rule is more particularly applicable in cases where the transportation of the cargo is not complete, and it cannot be applied at all to the case before the court without considerable qualification.

Reasonably construed, the contract gives the plaintiffs the agreed per diem compensation from the commencement of the voyage until the same was broken up, including also so many days in addition as would have been spent, if no disaster had occurred, in completing the return trip. Apply that rule to the case, and it is clear that the judgment of the court below must be affirmed, as the United States, upon the most liberal computation, have paid more than the contract would entitle the plaintiffs to demand. Payment was made to the time when the mate, engineer, and three watchmen returned home, and the plaintiffs have no right to claim anything more.

JUDGMENT AFFIRMED.

II. IN THE CROSS APPEAL.

Supplies for the military service were transported by the appellees from St. Louis up the Missouri River to Fort Berthold, as more fully explained by the court in the case just decided. They were the owners of the steamboat Belle Peoria, and it appears by the findings in the court below that the assistant quartermaster at that station, on the 1st day of June, 1865, applied to them to take such a cargo and transport it to that place. Objections were made by the owners of the steamboat, as explained in the preceding case; but they put the cargo on board, and on the 3d of the same month started on the upward trip, and it appears that they made the trip in safety, delivered the cargo to the consignees, and without any unnecessary delay started on the return trip. Two days after they started on the return trip the steamboat encountered a high wind, and while those in charge of her were endeavoring to land she was blown aground and became fast. All efforts to get her off proving unavailing, the officers and crew, except the mate, one engineer, and three watchmen, left her and returned to the port of departure. By the findings, it appears that the mate, one engineer, and three watchmen remained on board to the 30th of September of the same year, when they also left the steamer and returned.

Claim was made by the present appellees, in the case just decided, for compensation for the service performed in addition to what they had received; but it is unnecessary to enter into any of those details, except to say that the boat remained aground until the 15th of April of the following year, when she was swept off by an ice freshet, and was totally destroyed. Before that occurred, however, the owners of the steamboat dispatched a pilot and crew up the river to the place where the steamboat was aground, to get her afloat and bring her down the river, but the steamboat had been swept off and destroyed three days before they arrived at the place of the disaster. Expenses of course were incurred for the wages of the pilot and crew, and for provisions and transportation, and the court below found that those expenses amounted to the sum of $2500, and for that sum the Court of Claims rendered judgment for the appellees, and the United States appealed to this court.

Apart from what appears in the opinion delivered in the other appeal, the only facts found by the court below in support of the claim are what is exhibited in the following statement: 'These persons, meaning the pilot and crew, were sent, after consultation with the quartermaster at St. Louis, and for the purpose of protecting the interests of the United States as well as those of the claimants.'

Unless the United States, in contemplation of law, were the owners of the steamboat for the voyage, they had no property interests in the stranded steamboat, as the cargo had, two days before the disaster occurred, been safely discharged at the place of destination and duly delivered to the consignees. They were not owners for the voyage, as the court has just decided, so that if the statement is founded on that theory it is error, and entitled to no weight; and if not founded on that theory, it does not appear to rest on any substantial foundation, as the court has decided in the other appeal that the appellees, as the general owners and owners for the voyage, assumed all risks from sea perils for the entire trip.

Temporary delays, if any had occurred, might have increased the per diem compensation which the United States had agreed to pay; but the voyage had been broken up and frustrated more than six months before the pilot and crew were sent to the place of the disaster for the purpose of getting the steamboat afloat. Suppose, however, that it could be admitted that the United States had some property interests in the steamboat, still the admission would not benefit the appellees, as it is perfectly clear that the assistant quartermaster had no authority to bind the United States in any such arrangement. He did not attempt to make any contract, and nothing of the kind can be inferred from the finding of the court, even if it be competent for this court to make inferences to support the judgment, which is not admitted. All that is found is that the owners of the steamboat consulted with the quartermaster before they dispatched the pilot and crew to the scene of the disaster, which falls very far short of evidence to prove a contract, even if the quartermaster had been invested with authority for any such purpose. Viewed in any light, the record does not show any legal foundation for the judgment.

JUDGMENT REVERSED, AND THE CAUSE REMANDED WITH DIRECTIONS TO DISMISS THE PETITION.


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


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Dunphy v. Kleinsmith and Duer

APPEAL from the Supreme Court of the Territory of Montana.

The case was that of a creditor's bill filed by Kleinsmith, one appellee, against E. M. Dunphy, the appellant, and one Benajah Morse, surviving partner of Elkanah Morse, on behalf of himself and all other judgment creditors, to obtain satisfaction of a judgment recovered by Kleinsmith on the 12th of March, 1868, for $16,957. The bill alleged that an execution issued on the judgment was returned wholly unsatisfied, and that no part of the judgment had been paid. It then charged that on the 31st of October, 1867, Morse and his brother Elkanah (then living) executed to Dunphy a mortgage to secure the payment of $30,000 in one year from date, covering property to the amount of $70,000, including a ranch in the county of Gallatin, containing 640 acres of land, with two-thirds of the crops and all the stock thereon, embracing 225 head of cattle, and all the goods in their store at Gallatin, together with the lot and storehouse and all the book accounts and evidences of debt of E. & B. Morse. The bill stated that at the time of executing this mortgage the Morses were largely indebted to different persons, and charged that it was made to hinder, delay, and defraud the creditors of the firm, and was not accompanied by change of possession; but that the Morses continued in possession for several months, selling and disposing of the goods for their own benefit. It further charged that the Morses did not owe Dunphy any such amount as $30,000; did not, in fact, owe him more than $6000 or $7000, the balance being fictitious; and that both Dunphy and the Morses had acknowledged as much to different persons. The bill further charged that, by means of this fraudulent mortgage and fictitious debt, Dunphy had prevented the plaintiff and other judgment creditors of E. & B. Morse from collecting their just demands; that Dunphy had claimed title to the property under the mortgage, and had forbidden the sheriff to levy upon it, and that consequently the sheriff had refused to do so, and that Morse and Dunphy were engaged in disposing of the property, and that Dunphy had already got more than $30,000 therefrom. The bill prayed that the mortgage might be declared fraudulent and void; that a receiver should be appointed to hold the property, and that if what was left should not be sufficient to satisfy the complainant and other judgment creditors, Dunphy might be made personally liable for the deficiency. By an amended bill the complainant alleged that, on the 3d of January, 1868, Morse executed to Dunphy an assignment of all the property embraced in the mortgage, and authorized him to sell and dispose of it with due regard to his own interests and the interests of the creditors of E. & B. Morse; but that, notwithstanding the assignment, Morse still continued in possession and control of the property for several months, and to sell the same and collect the proceeds thereof; and that the assignment was fraudulent and void.

To this bill Dunphy filed an answer, insisting on the bona fides of his debt, and setting forth that it consisted of $12,500 for a stock of goods sold to the Morses, and $10,000 for money lent to them at the date of the mortgage, the balance being for interest to accrue during the year the mortgage had to run, namely, one per cent. a month on the former sum, and five per cent. a month on the latter, which was allowed by the laws of the Territory. The appellee, Duer, recovered a judgment against Morse on the same day that Kleinsmith's was entered, failed to obtain satisfaction, and filed a petition to intervene as a co-complainant in the suit, and was admitted to intervene accordingly. The cause was put at issue and came on for trial in March, 1869.

It appeared that by an act of the Territorial legislature of Montana, passed in December, 1867, it was declared:

'SEC. 1. That there shall be in this Territory but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs.'

And,

'SEC. 155. That an issue of fact shall be tried by a jury, unless a jury trial is waived, or a reference be ordered as provided in this act.'

By another act, passed in January, 1869, it was provided:

'That in all civil cases, if three-fourths of the jurors agree upon a verdict, it shall stand and have the same force and effect as if agreed upon by the whole of the jurors.'

The cause was tried in pursuance of these provisions of the Territorial law. In order to present distinct issues for trial the court framed a series of questions (twenty-two in number), and submitted them to the jury: as

'1st. Did E. & B. Morse retain possession and control and continue to dispose of the property mortgaged after the execution of their mortgage to E. M. Dunphy on the 31st day of October, 1867?

'2d. State whether B. Morse, after the 3d day of January, 1868, continued to remain in possession of the property assigned to Dunphy, and also to exercise control over it, and to sell and dispose of it?

'4th. Did E. & B. Morse owe E. M. Dunphy $30,000 at the time of the execution of their mortgage to him on the 31st day of October 1867?'9th. Did the mortgage to Dunphy prevent the collection of the judgments of Kleinsmith and Duer?

'17th. Was the mortgage to Dunphy executed and accepted for the purpose of covering up the property of E. & B. Morse, and delaying or preventing the collection of demands found against them or either of them?' &c., &c.

To all these questions nine of the jury returned answers adverse to Dunphy and favorable to the complainants, and three dissented.

This verdict was rendered on the 25th of March, and accepted by the court, and on the 3d of April a decree was made, which, after reciting the principal findings of the jury, proceeded as follows:

'It is therefore ordered, adjudged, and decreed that the said mortgage from E. & B. Morse to E. M. Dunphy for $30,000 be set aside as fraudulent and void, and of no effect, and that the said plaintiffs recover of the said E. M. Dunphy the sum of $35,737, the amount of plaintiffs' judgments, interest, and costs, together with the costs of this action, taxed at $7149; that the said judgments be credited by the money in the possession of the receiver in the above cause, and that plaintiffs have execution against the said Dunphy for the residue of said judgment after such credit has been entered.'

This judgment was rendered in the District Court for the third judicial district of the Territory. It was taken to the Supreme Court and affirmed. An appeal was then taken to this court.

The principal question presented by this case was whether these proceedings, conducted in the manner stated, could be sustained.

By the organic act constituting the Territory of Montana, passed by Congress May 26th, 1864, section 6, the legislative power of the Territory was declared to extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of that act. By the 9th section provision was made for establishing various courts of the Territory, namely, a Supreme Court, District Courts, Probate Courts, and justices of the peace; and it was enacted that the Supreme and District Courts, respectively, should possess chancery as well as common-law jurisdiction. By the 13th section it was declared that the Constitution and all laws of the United States, which are not locally inapplicable, shall have the same force and effect within the Territory as elsewhere in the United States.

These were the only provisions of the organic law which were referred to in the argument.

Mr. Lyman Trumbull, for the appellant; Messrs. F. A. Dick, J. O. Broadhead, and A. M. Woolfolk, contra.

Mr. Justice BRADLEY, having stated the case, delivered the opinion of the court, as follows:

title: Dunphy v. Kleinsmith and Duer


text: Talk:Dunphy v. Kleinsmith and Duer

title: Talk:Dunphy v. Kleinsmith and Duer


text:
Dunphy v. Kleinsmith and Duer/Opinion of the Court

From the provisions of the organic law, which have been referred to in the argument, it is apparent that the Territorial legislature has no power to pass any law in contravention of the Constitution of the United States, or which shall deprive the Supreme and District Courts of the Territory of chancery as well as common-law jurisdiction.

This case was clearly a case of chancery jurisdiction, and one necessarily requiring equitable, as distinguished from legal, relief. The property, according to the charge of the complainant, had been put beyond the reach of the ordinary process of the law. It had been disposed of by the assistance and through the co-operation of Dunphy in such a manner that the judgment creditors could not find it to satisfy their claims, or, if found, it was held by Dunphy under cover of an assignment, which, prim a facie, gave him the legal title. This is what is charged by the judgment creditors. They further charge that this was a fraudulent contrivance to hinder and delay them in the recovery of their debts. In a country or territory where the systems of common law and chancery both substantially prevail, it is perfectly clear that chancery only could give adequate relief in such a case. And, then, the case was instituted and the pleadings were framed strictly in accordance with this view. The bill is strictly a bill in chancery praying for equitable relief.

Now, it is perfectly obvious that, with the exception of the verdict being rendered by nine jurors, the trial was altogether conducted as a trial at common law, and that the decree was rendered on the verdict precisely as a judgment is rendered on a verdict at common law. This was clearly an error. The case, being a chancery case, and being instituted as such, should have been tried as a chancery case by the modes of proceeding known to courts of equity. In those courts the judge or chancellor is responsible for the decree. If he refers any questions of fact to a jury, as he may do by a feigned issue, he is still to be satisfied in his own conscience that the finding is correct, and the decree must be made as the result of his own judgment, aided, it is true, by the finding of the jury. Here the judgment is pronounced as the mere conclusion of law upon the facts found by the jury.

Again: In an equitable proceeding of this kind, a decree in the nature of a judgment for damages cannot be rendered against the defendant who is alleged to have taken a fraudulent assignment of the property. The decree against him must be a decree for an account. He must be called to account for just what property has come into his hands, and no more; and he will be entitled, under ordinary circumstances, to a rebate for the amount that was justly and honestly his due. The mode of taking such an account is well known in equity proceedings. The defendant is to exhibit an account either in his answer or in the master's office, and if it is not satisfactory to the complainant, it may be surcharged or falsified; and, as the account is finally found to stand, so will the responsibility of the defendant be. But if the complainant wishes to make him answerable in damages, either for the waste of the property or for its disposal by the original proprietor by aid of the wrongful complicity of the defendant, he must sue for damages in an action at law.

No account of the kind, or in the maner indicated, seems to have been taken at all. The suit was tried like an action for damages, and the jury were left to say, in brief, whether or not the complainants could have made their money on execution had it not been for the mortgage and assignment to the defendant. The jury answered that they could, and the defendant was made personally liable for the whole amount.

Without attempting to decide whether the Territorial legislature had or had not the power to legalize a verdict rendered by three-fourths of a jury, we think the proceedings were erroneous, and the decree must be REVERSED and the cause remanded for further proceedings

IN CONFORMITY WITH THIS OPINION.


text: Talk:Dunphy v. Kleinsmith and Duer/Opinion of the Court


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Page:A short history of social life in England.djvu/62

42 Anglo-Saxon forefathers. Around each Ealdorman fought a group of warrior kinsmen, bound not only by ties of blood, but by personal devotion and that "mutual trust of men who had been lifelong comrades." To permit the death of their chief was the deepest shame of this bodyguard; to sacrifice their lives for him was the highest attainable glory. Such a death alone won for them the joy of eternal feasting in the halls of Walhalla off a boar's head that never grew less and from drinking cups of ale that never failed.

It was small wonder, then, that intellectual accomplishments should give way before the more practical training of wrestling, shooting, running, and other sports necessitating bodily exertion.

Hunting was a very favourite as well as a necessary pastime. The country was thick in forest land, abounding with animals of all sorts. There were bears, buffaloes, and wolves for the more daring spirits; harts, hinds, roebuck, foxes, and hares for the more timorous.

When darkness fell on the land they had their resources indoors. Games with dice—the ancestors of draughts, backgammon, and chess—were


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The Cherokee Tobacco

1. The 107th section of the Internal Revenue Act of July 20, 1868, which enacts that "the internal revenue laws imposing taxes on distilled spirits, fermented liquors,tobacco, snuff, and cigars, shall be construed to extend to such articles produced anywhere within the exterior boundaries of the United States, whether the same shall be within a collection district or not," applies to and is in force in the Indian Territory embraced within the Western District of Arkansas, and occupied by the Cherokee nation of Indians, notwithstanding the 10th article of the prior treaty of 1866, between the United States and that nation, by which it was agreed that "every Cherokee Indian and freed person residing in the Cherokee nation shall have the right to sell any products of his farm, including his or her live stock, or any merchandise or manufactured products. and to ship and drive the same to market without restraint, paying any tax thereon which is now or may be levied by the United States on the quantity sold outside of the Indian territory."

2. An act of Congress may supersede a prior treaty.

to the District Court for the Western District of Arkansas; the case involving, first, the question of the intention of Congress, and, second, assuming the intention to exist, the question of its power, to tax certain tobacco in the territory of the Cherokee nation, in the face of a prior treaty between that nation and the United States, that such tobacco should be exempt from taxation.

The case was elaborately argued orally or on briefs, by Messrs. E.C. Boudinot, A. Pike, R.W. Johnson, and B.F. [p617] Butler, for the claimants; and by Mr. Akerman, Attorney-General, and Mr. Bristow, Solicitor-General, for the United States.

title: The Cherokee Tobacco


text: Talk:The Cherokee Tobacco

title: Talk:The Cherokee Tobacco


text:
The Cherokee Tobacco/Opinion of the Court

Mr. Justice SWAYNE delivered the opinion of the court.

This is a writ of error to the District Court of the Western District of Arkansas. The case, so far as it is necessary to state it, lies within a narrow compass.

The proceeding was instituted by the defendants in error to procure the condemnation and forfeiture of the tobacco in question, and of the other property described in the libel of information, for alleged violations, which are fully set forth, of the revenue laws of the United States. Elias C. Boudinot, for himself and his copartner, Stand Wattie, interposed, and by his answer submitted, among others, the following allegations: That the firm were the sole owners of the property described in the libel; that the property was found and seized in the Cherokee nation, outside of any revenue collection district of the United States; that the manufacturing of the tobacco was carried on in the Cherokee nation, and that the manufactured tobacco, raw material, and other property, were never within any collection district, nor subject to the taxes mentioned in the libel, nor were the owners bound to comply with the requirements of the revenue laws of Congress; that the revenue laws were complied with as to all tobacco sold or offered for sale outside of said Indian country, if any such there were; that the claimants are Cherokee Indians by blood, and residents of the Cherokee nation, and they deny that the property had become forfeited as alleged in the libel.

At the trial, the claimants moved the court to instruct the jury that the act of Congress, entitled "An Act imposing taxes on distilled spirits, and for other purposes," approved July 20th, 1868, is not in force in any part of the Indian territory embraced in the Western District of Arkansas; that the 10th article of the treaty of 1866, between the Cherokee nation and the United States, was in full force with reference to the territory of the Cherokee nation; that the [p618] 67th section of the act of 1868 requires stamps to be sold only to manufacturers of tobacco in the respective collection districts, and that it gave the claimants no legal right to buy such stamps to place on their tobacco in the Cherokee nation, and that they are not responsible for not having done so. The court refused to give these instructions. The jury found for the United States, and judgment was entered accordingly. The claimants excepted to the refusal of the court to give the instructions asked for, and have brought the case here for review.

The only question argued in this court, and upon which our decision must depend, is the effect to be given respectively to the 107th section of the act of 1868, and the 10th article of the treaty of 1866, between the United States and the Cherokee nation of Indians.

They are as follows:

"Section 107. That the internal revenue laws imposing taxes on distilled spirits, fermented liquors, tobacco, snuff, and cigars, shall be construed to extend to such articles produced anywhere within the exterior boundaries of the United States, whether the same shall be within a collection district or not."

"Article 10th. Every Cherokee Indian and freed person residing in the Cherokee nation shall have the right to sell any products of his farm, including his or her live stock, or any merchandise or manufactured products, and to ship and drive the same to market without restraint, paying any tax thereon which is now or may be levied by the United States on the quantity sold outside of the Indian territory."

On behalf of the claimants it is contended that the 107th section was not intended to apply, and does not apply, to the country of the Cherokees, and that the immunities secured by the treaty are in full force there. The United States insist that the section applies with the same effect to the territory in question as to any State or other territory of the United States, and that to the extent of the provisions of the section the treaty is annulled.

[p619] Considering the narrowness of the questions to be decided, a remarkable wealth of learning and ability have been expended in their discussion. The views of counsel in this court have rarely been more elaborately presented. Nevertheless, the case seems to us not difficult to be determined, and to require no very extended line of remarks to vindicate the soundness of the conclusions at which we have arrived.

In The Cherokee Nation v. Georgia, Chief Justice Marshall, delivering the opinion of this court, said: "The Indian territory is admitted to compose a part of the United States. In all our georgraphical treatises, histories, and laws it is so considered." In The United States v. Rogers, Chief Justice Taney, also speaking for the court, held this language: "It is our duty to expound and execute the law as we find it, and we think it too firmly and clearly established to admit of dispute that the Indian tribes residing within the territorial limits of the United States are subject to their authority, and where the country occupied by them is not within the limits of one of the States Congress may, by law, punish any offence committed there, no matter whether the offender be a white man or an Indian." Both these propositions are so well settled in our jurisprudence that it would be a waste of time to discuss them or to refer to further authorities in their support. There is a long and unbroken current of legislation and adjudications, in accordance with them, and we are aware of nothing in conflict with either. The subject, in its historical aspect, was fully examined in Johnson v. McIntosh. In the 11th section of the act of the 24th of June, 1812, it was provided "that it shall be lawful for any person or persons to whom letters testamentary or of administration shall have been or may hereafter be granted by the proper authority in any of the United States or the territories thereof to maintain any suit," &c. In Mackey v. Coxe, it was held that the Cherokee country was a territory of the United States, within the meaning of this act. The 107th [p620] section of the act of 1868 extends the revenue laws only as to liquors and tobacco over the country in question. Nowhere would frauds to an enormous extent as to these articles be more likely to be perpetrated if this provision were withdrawn. Crowds, it is believed, would be lured thither by the prospect of illicit gain. This consideration doubtless had great weight with those by whom the law was framed. The language of the section is as clear and explicit as could be employed. It embraces indisputably the Indian territories. Congress not having thought proper to exclude them, it is not for this court to make the exception. If the exption had been intended it would doubtless have been expressed. There being no ambiguity, there is no room for construction. It would be out of place. The section must be held to mean what the language imports. When a statute is clear and imperative, reasoning ab inconvenienti is of no avail. It is the duty of courts to execute it. Further discussion of the subject is unnecessary. We think it would be like trying to prove a self-evident truth. The effort may confuse and obscure but cannot enlighten. It never strengthens the pre-existing conviction.

But conceding these views to be correct, it is insisted that the section cannot apply to the Cherokee nation because it is in conflict with the treaty. Undoubtedly one or the other must yield. The repugnancy is clear and they cannot stand together.

The second section of the fourth article of the Constitution of the United States declares that "this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties which shall be made under the authority of the United States, shall be the supreme law of the land."

It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. [p621] This results from the nature and fundamental principles of our government. The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty. In the cases referred to these principles were applied to treaties with foreign nations. Treaties with Indian nations within the jurisdiction of the United States, whatever considerations of humanity and good faith may be involved and require their faithful and good faith may be inobligatory. They have no higher sanctity; and no greater inviolability or immunity from legislative invasion can be claimed for them. The consequences in all such cases give rise to questions which must be met by the political department of the government. They are beyond the sphere of judicial cognizance. In the case under consideration the act of Congress must prevail as if the treaty were not an element to be considered. If a wrong has been done the power of redress is with Congress, not with the judiciary, and that body, upon being applied to, it is to be presumed, will promptly give the proper relief.

Does the section thus construed deserve the severe strictures which have been applied to it? As before remarked, it extends the revenue laws over the Indian territories only as to liquors and tobacco. In all other respects the Indians in those territories are exempt. As regards those articles only the same duties are exacted as from our own citizens. The burden must rest somewhere. Revenue is indispensable to meet the public necessities. Is it unreasonable that this small portion of it shall rest upon these Indians? The frauds that might otherwise be perpetrated there by others, under the guise of Indian names and simulated Indian ownership, is also a consideration not to be overlooked.

We are glad to know that there is no ground for any imputation [p622] upon the integrity or good faith of the claimants who prosecuted this writ of error. In a case not free from doubt and difficulty they acted under a misapprehension of their legal rights.


text: Talk:The Cherokee Tobacco/Opinion of the Court