text:
The Distilled Spirits/Opinion of the Court

The claimants insist, in the first place, that no recovery can be had under the information on the conceded facts of the case. The information contained three counts relied on: one on section 45 of the act of July 13th, 1866, and two on section 48 of the act of June 30th, 1864, as amended by act of July 13th, 1866. The first-named section declares that 'all distilled spirits found elsewhere than in a bonded warehouse, not having been removed from such warehouse according to law, and the tax imposed by law not having been paid, shall be forfeited.' The first count charges that the spirits in question were thus found. It is insisted that they were removed according to law.

We do not think that a removal procured by a false and fraudulent bond, though accepted by the collector, was a removal according to law, and we fail to perceive how the spirits which were thus withdrawn from the bonded warehouse can be exempted from the operation of this section.

The other section, on which the second and third counts were framed, declares that 'all goods, wares, merchandise, articles or objects, on which taxes are imposed by the provisions of law, which shall be found in the possession, or custody, or within the control of any person or persons in fraud of the internal revenue laws, or with design to avoid payment of said taxes, may be seized, &c., and shall be forfeited to the United States.' It is insisted that this section does not apply to distilled spirits, inasmuch as they are provided for in a different part of the act by a distinct series of sections.

An examination of the act of 1864 will show that the first fifty-two sections are of a general character, intended to apply to all taxes imposed by the act, and that the 48th section is especially of that character, and applies to distilled spirits as well as all other articles. By the act of 1866 this section was amended in a manner not material to the question at issue. When thus amended it still stood as it did before, having the same office and the same general application. The addition in the act of 1866 of several new sections relating to the removal of distilled spirits from a bonded warehouse, and imposing penalties and forfeitures for giving fraudulent bonds for that purpose, or for illegally removing the spirits, does not deprive the 48th section of the act of 1864 of its general application. There is nothing incongruous or repugnant between it and the new sections. Both can stand, and an information may be founded on both or either, whenever the facts will admit. It is a very common thing for cumulative remedies to be thus provided. The act of 1868, which revises the entire revenue law relating to spirits and tobacco, furnishes a striking instance of this. After providing for a large number of specific forfeitures, or forfeitures for specific breaches of the law, it follows up the subject by sections of the most general nature, so framed as not to admit of any possible escape or evasion, and which necessarily include most of the cases before specifically provided for. Statutes in pari materia, like the acts of 1864 and 1866, are to be construed together, and repeals by implication are not favored if the acts can reasonably stand together.

The other points made by the claimants relate to the charge given by the court to the jury. Passing over the first and second instructions prayed for, which are not insisted on, and are not tenable if they were, the third and fourth demand attention. The substance of the third instruction prayed for was, that if the spirits were removed from the warehouse according to the forms of law, and the claimants bought them without knowledge of the fraud, they were not liable to forfeiture. The court charged in accordance with this prayer with this qualification, that if Boyden bought the spirits as agent for Harrington, and was cognizant of the fraud, Harrington would be bound by his knowledge. The claimants insist that this is not law.

The question how for a purchaser is affected with notice of prior liens, trusts, or frauds, by the knowledge of his agent who effects the purchase, is one that has been much mooted in England and this country. That he is bound and affected by such knowledge or notice as his agent obtains in negotiating the particular transaction, is everywhere conceded. But Lord Hardwicke thought that the rule could not be extended so far as to affect the principal by knowledge of the agent acquired previously in a different transaction. Supposing it to be clear, that the agent still retained the knowledge so formerly acquired, it was certainly making a very nice and thin distinction. Lord Eldon did not approve of it. In Mountford v. Scott, he says: 'It may fall to be considered whether one transaction might not follow so close upon the other as to render it impossible to give a man credit for having forgotten it. I should be unwilling to go so far as to say, that if an attorney has notice of a transaction in the morning, he shall be held in a court of equity to have forgotten it in the evening; it must in all cases depend upon the circumstances.' The distinction taken by Lord Hardwicke has since been entirely overruled by the Court of Exchequer Chamber in the case of Dresser v. Norwood. So that in England the doctrine now seems to be established, that if the agent, at the time of effecting a purchase, has knowledge of any prior lien, trust, or fraud, affecting the property, no matter when he acquired such knowledge, his principal is affected thereby. If he acquire the knowledge when he effects the purchase, no question can arise as to his having it at that time; if he acquired it previous to the purchase, the presumption that he still retains it, and has it present to his mind, will depend on the lapse of time and other circumstances. Knowledge communicated to the principal himself he is bound to recollect, but he is not bound by knowledge communicated to his agent, unless it is present to the agent's mind at the time of effecting the purchase. Clear and satisfactory proof that it was so present seems to be the only restriction required by the English rule as now understood. With the qualification that the agent is at liberty to communicate his knowledge to his principal, it appears to us to be a sound view of the subject. The general rule that a principal is bound by the knowledge of his agent is based on the principle of law, that it is the agent's duty to communicate to his principal the knowledge which he has respecting the subject-matter of negotiation, and the presumption that he will perform that duty. When it is not the agent's duty to communicate such knowledge, when it would be unlawful for him to do so, as, for example, when it has been acquired confidentially as attorney for a former client in a prior transaction, the reason of the rule ceases, and in such a case an agent would not be expected to do that which would involve the betrayal of professional confidence, and his principal ought not to be bound by his agent's secret and confidential information. This often happened in the case of large estates in England, where men of great professional eminence were frequently consulted. They thus became possessed, in a confidential manner, of secret trusts or other defects of title, which they could not honorably, if they could legally, communicate to subsequent clients. This difficulty presented itself to Lord Hardwicke's mind, and undoubtedly lay at the bottom of the distinction which he established. Had he confined it to such cases, it would have been entirely unexceptionable.

The general tendency of decisions in this country has been to adopt the distinction of Lord Hardwicke, but it has several times been held, in consonance with Lord Eldon's suggestion, that if the agent acquired his information so recently as to make it incredible that he should have forgotten it, his principal will be bound. This is really an abandonment of the principle on which the distinction is founded. The case of Hart v. Farmers' and Mechanics' Bank, adopts the rule established by the case of Dresser v. Norwood. Other cases, as that of Bank of United States v. Davis, 17 New York Contral Insurance Co. v. National Protection Co., adhere to the more rigid view.

On the whole, however, we think that the rule as finally settled by the English courts, with the qualification above mentioned, is the true one, and is deduced from the best consideration of the reasons on which it is founded. Applying it to the case in hand, we think that the charge was substantially correct. The fair construction of the charge is, that if the jury believed that Boyden, the agent, was cognizant of the fraud at the time of the purchase, Harrington, the principal, was bound by this knowledge. The precise words were 'that if Boyden bought the spirits as agent for Harrington, and Boyden was cognizant of the fraud, Harrington would be bound by his knowledge.' The plain and natural sense of these words, and that in which the jury would understand them, we think, is that they refer to Boyden's knowledge at the time of making the purchase. Thus construed the charge is strictly in accordance with the law as above explained. There was no pretence that Boyden acquired his knowledge in a fiduciary character.

This result is arrived at independent of the question whether an innocent purchaser without notice can, in any case, claim precedence of the title of the United States arising by forfeiture. It has frequently been held that he cannot do so in cases of statutory forfeitures ensuing from acts done or omitted. But as this point was not argued or raised we do not put the case upon it.

We see no error in the fourth instruction given. It needs no learned examination of the doctrine of confusion or mixture of goods to make it apparent that if certain spirits belonging to the government by forfeiture are voluntarily mixed with other spirits belonging to the same party and passed through the process of rectification in leaches, he cannot thereby deprive the government of its property; and if the government only claims its fair proportion of the rectified spirits, he certainly cannot complain of injustice. The only result of applying the doctrine of confusion of goods would be to forfeit the entire mixture. And it cannot be claimed that the process of rectification in leaches effects such a transmutation of species as to destroy the identity of the liquor. If, after the mixture and before the rectification a certain proportion of the spirits belongs to the United States, they will not lose that proportion by the spirits being passed through the leaches for the purpose of rectification.

JUDGMENT AFFIRMED.


text: Talk:The Distilled Spirits/Opinion of the Court

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


text:
Bank v. Lanier

IN error to the Circuit Court for the District of Indiana; the case being thus:The 36th section of the National Currency Act of 1863, under which the National banks were organized, and which provides for the distribution of the stock into shares, and for its being assignable, contained this restriction, to wit, than no shareholder should have power to sell or assign his shares, so long as he should be liable to the association either as principal, debtor, or surety, or otherwise, for any debt that should have become due, while it remained unpaid.

The 12th section of the National Currency Act of June 3d, 1864, which expressly repealed this act of 1863, gives to the banks the right, either by laws or in their articles of association, to prescribe the manner in which stock shall be transferable on their books.

The 35th section of the same act of 1864, prohibits 'any loan or discount on the security of the shares of a bank's own capital stock;' also the purchasing or holding such shares unless necessary to prevent loss on a debt previously contracted in good faith; and directs that stock so purchased or acquired shall be sold or disposed of in six months, in default of which a receiver shall be appointed. And it omits the restriction upon the transfer of shares contained in the above quoted 36th section of the act of 1863.

By the section in the act of 1864, repealing the act of 1863, it is 'provided that such repeal shall not affect any act done or proceedings had, or any organization, acts or proceedings of any association organized or in process of organization under the act aforesaid.'

The 37th section of the act of 1863, had contained a provision similar to this 35th section of the act of 1864, though its prohibition against the holding, by a bank, of its own stock, was less stringent.

This act of 1864 being in force, Lanier and Handy brought suit in the court below against the First National Bank of South Bend, to obtain pecuniary satisfaction for the refusal by the bank to permit the transfer of certain shares of stock on its books to them, on the ground that the law imposed the duty on the corporation to allow the transfer, and raised an implied promise in their favor that the duty should be performed. The case made by their declaration was this:

On the 8th of July, 1865, the bank issued two certificates of stock to one Culver, which declared that he was entitled to 150 shares in the capital stock of the institution, and that these shares were transferable on the books of the bank, in person or by attorney, only on the surrender of the certificates. This limitation on the power of transfer was in conformity with the terms of a by-law on the subject. On the 29th of January, 1866, Lanier and Handy purchased 138 shares of this stock from Culver for value, and obtained from him the stock certificates regularly assigned, with the usual powers of attorney to transfer the stock, of which transaction the bank was notified on the 31st day of the same month of January. This purchase was not followed up by an immediate request for the transfer of the stock, but in the month of January, 1868, this request was regularly made and refused.

The bank, in justification of its conduct, interposed three pleas in bar, which set up two distinct defences.

The first and third pleas justified the refusal, on the ground that at the time the stock was taken by Culver he had pledged it as a security for such deposits as the bank might from time to time make with the house of Culver, Penn & Co., of New York, of which he was a member, and that to make the pledge more effectual, by power of attorney regularly executed, he authorized his attorney in fact to sell and transfer the stock in case the bank conceived it to be necessary, and to apply the proceeds to liquidate any balance due the bank from Culver, Penn & Co., and that 50 shares had actually been sold in pursuance of this agreement, and the proceeds applied before Culver assigned the stock certificates to the plaintiffs, and the remaining shares had been sold before the bank had notice that they were assigned.

The second plea alleged the organization of the bank under the act of 1863, and that being so organized it established certain by-laws for conducting its business and for its protection, and to regulate the transfers of stock which were in pursuance of the authority vested in the bank by the act of Congress aforesaid, and that the same had been from the time of their adoption, and still were in force, unrepealed and unchanged; that by virtue of the 15th section of these by-laws it was provided that the stock of the bank should be assignable only on its books, subject to the provisions and restrictions of the act of Congress; that among the provisions and restrictions of the act was one contained in the 36th section, providing that the stock should be assignable on the books in such manner as the by-laws of the bank should prescribe, but that no shareholder should have power to sell or transfer any share so long as he should be liable to the bank for any debt. And the plea averred that the provisions of the said section thirty-six, by the force of the by-laws of the said bank, and by virtue of the said 15th section of them, became and was a part of the by-laws of the bank, and regulated the transfers of the shares of stock held and owned in the same, and was still a part thereof, in full force and unrepealed by any act of the bank. And it averred further tht Culver was indebted, &c.

To each of these pleas the plaintiffs filed general demurrers, which, on joinder, were sustained by the court, and the bank declining to answer further, judgment was rendered against her. She now brought the case here on error. The errors complained of being upon the rulings of the court in sustaining the demurrers to these pleas.

Messrs. McDonald and Roache, for the plaintiff in error:

1. It will be contended that the contract set up in the first and third pleas is in violation of the 35th section of the act of 1864, which prohibits any association from making any 'loan or discount on the security of the shares of its own stock.' Now the object of the prohibition was to compel stockholders to become borrowers on the same terms as other general customers; and inasmuch as the inhibition is limited to 'loans and discounts,' which must be held to mean those made in the ordinary course of dealing, it cannot with fairness be extended to such securities as might be taken for deposits in such commercial centres as the bank might find it necessary to make for the purposes of trade and exchange.

2. The second plea presents a question of the right of the bank to hold the stock in question until the assignor had paid or discharged his liabilities to the bank. The bank was organized under the act of 1863, and its by-laws, which have remained unchanged, were formed under the provisions of the last-named act, and with express reference to the restrictions of the 36th section of that act. Now, it is averred in the plea, and we contend that the legal effect of the 15th section of the by-laws was to incorporate into it the provisions and restrictions of the 36th section of the act of 1863, in the same manner as if they had been set out at length in the by-law itself, and that the subsequent repeal of that section by the act of 1864, could not operate to affect the by-law, unless the right to impose such restrictions was taken away by the subsequent act; but so far from that being the case, the 12th section of the act of 1864 expressly confers upon such associations the right, either by by-laws or in their articles of association, to prescribe the manner in which stock shall be transferable on their books. This view of the question is strengthened by reference to the repealing section of the act of 1864.

3. It will be objected that there was no valid pledge to the bank, inasmuch as the certificates of stock were not taken possession of by the pledgee. But the certificates do not constitute the property; they are only muniments of title.

The shares of stock constitute the property; these might be pledged, and the possession, so far as such property is capable of being possessed, remains in the pledger. This results from the nature of the property being, as it is, intangible personal property, possessing more the elements of a chose in action than of a chattel.

It will be further insisted that if the stock was pledged, that Culver, still holding the certificates, had the power to transfer the stock by the assignment of the certificates to a bon a fide holder, and that such holder would take the stock free of any claim of the bank by reason of such pledge. This would impress upon them the highest rights of commercial paper. But certificates of stock are not security for money in any respect, much less are they negotiable securities. As muniments of title they may undoubtedly be assigned or pledged, but the bon a fide assignee or pledgee will take them subject to all the equities that existed against the assignee.

Mr. T. A. Hendricks, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Bank v. Lanier


text: Talk:Bank v. Lanier

title: Talk:Bank v. Lanier


text:
Bank v. Lanier/Opinion of the Court

It is unnecessary to decide whether the first and third pleas would answer the declaration, if the transaction pleaded were lawful, because the directors of the bank were forbidden by law from dealing with Culver in the manner they did. At the time this proceeding took place the Currency Act of 1863 had been superseded by the act of June 3, 1864, which expressly repealed the former act. It is, therefore, by the provisions of the latter act that the conduct of banking associations must be governed, whether they were organized before or after it became a law. And in looking into this act, we find these associations expressly prohibited from making any loan or discount on the security of the shares of their own capital stock. And so marked is the policy of Congress on this subject, that it does not allow a bank to become the purchaser or holder of its shares at all, unless absolutely necessary to prevent loss on a debt previously contracted in good faith, and not then for a longer period than six months. It is easy to see, that if the power were given to a bank to loan money on the security of its shares, it would imply also a power to become the owner of those shares, and this Congress intended to guard against.

These institutions were created to subserve public purposes, and not the mere private interests of their stockholders. And in no better way could this object be attained than by placing shareholders, in their pecuniary dealings with the bank, on the same footing with other customers. Besides, how could the capital of the bank be kept available for active use, if the shareholder, who had pledged his stock for borrowed money, should be unable to meet his obligation? To the extent of the debt the capital would be withdrawn, and it is hardly possible that this could be the case for any length of time, were the debt secured outside of the shares of the bank. But it is unnecessary to seek for the reason of this prohibition, as the provision concerning it is explicit, and free from ambiguity.

Although the section in question forbids loans or discounts by a bank on the security of its own shares of stock, it is argued that this inhibition does not extend to the case of deposits made by one bank with another. But a deposit is nothing but a loan of money, and is within both the letter and spirit of the provision. It is well known that country banks keep on deposit in New York, with bankers and merchants, a considerable amount of money for their own convenience, for which they receive more or less of interest. But whether interest be obtained or not, these deposits are, equally with paper discounted over the counter of the bank, loans of money, and the reason of the rule is equally applicable to them.

The banker is accountable for the deposits he receives as a debtor, and the individual borrower of money from the bank sustains no other relation to it. In both cases money is borrowed, to be returned in a greater or less period of time, according to the contract of the parties. Without pursuing the subject further, it is clear that the contract between the South Bend Bank and Culver was illegal, and cannot, therefore, be pleaded in avoidance of any duty imposed on the bank. It would seem, from the date of the certificates issued to Culver, that as soon as he took the stock he pledged it, and the bank is therefore without the excuse of endeavoring to secure a pre-existing debt contracted in good faith. The contract in its inception was in violation of law, and the bank cannot complain if it is made to suffer in consequence of it.

The defence interposed by the second plea is equally unavailing to the plaintiffs in error. This plea assumes that the bank had a lien upon the stock of Culver for his indebtedness to it, without any special agreement on the subject, by virtue of the provisions of the 36th section of the Currency Act of 1863, restricting a shareholder from transferring his stock as long as he owes the bank, which remained in operation, although the section was repealed by the act of 1864, by means of a by-law adopted when the section was in force, declaring that the stock of the bank shall be transferable only on the books of the bank, subject to the provisions and restrictions of the act of Congress aforesaid.

If it be conceded that the by-law intended to embrace the restrictions contained in the 36th section, it is hard to see what good it accomplished, because, as long as this section was in force, it was the law of the corporation, known to all men, and did not need the aid of a by-law to render it operative. And if it be contended that a bank may, through the agency of a by-law, retain a particular section that has been repealed, it is difficult to see why it may not by the same means retain all the remaining sections of the repealed statute that are applicable to its business, and thus antagonize itself to the whole policy of Congress on the subject. But of necessity a by-law cannot operate in this way, nor is there any reason to suppose it was intended that this one should have such an effect. In the absence of any action taken by the bank on the subject since the new law went into operation, the fair inference is that this by-law is used as an afterthought to serve the purposes of this suit. Congress evidently intended, by leaving out of the law of 1864 the 36th section of the act of 1863, to relieve the holders of bank shares from the restrictions imposed by that section. The policy on the subject was changed, and the directors of banking associations were in effect notified that thereafter they must deal with their shareholders as they dealt with other people. As the restrictions fell, so did that part of the by-law relating to the subject fall with them.

It remains to be seen whether, on the case stated, Lanier and Handy can recover of the bank for a breach of corporate duty, notwithstanding the specific shares had already been transferred to other persons through the power of attorney which Culver gave when he attempted to pledge his stock as security for the deposits to be made with his New York house. And, in considering this question, we are relieved of any necessity of deciding between conflicting equities, for this suit does not seek to disturb the title of the adverse purchasers to the specific stock. It leaves them in possession of the property, and undertakes to subject the bank to damages for refusing to transfer the stock to the defendants in error. And, as we view this controversy, it makes no difference whether the transfers were actually made to other parties before or after the bank received notice of the assignment of the stock certificates by Culver to Lanier and Handy.

The power to transfer their stock is one of the most valuable franchises conferred by Congress on banking associations. Without this power, it can readily be seen the value of the stock would be greatly lessened, and, obviously, whatever contributes to make the shares of the stock a safe mode of investment, and easily convertible, tends to enhance their value. It is no less the interest of the shareholder, than the public, that the certificate representing his stock should be in a form to secure public confidence, for without this he could not negotiate it to any advantage.

It is in obedience to this requirement, that stock certificates of all kinds have been constructed in a way to invite the confidence of business men, so that they have become the basis of commercial transactions in all the large cities of the country, and are sold in open market the same as other securities. Although neither in form or character negotiable paper, they approximate to it as nearly as practicable. If we assume that the certificates in question are not different from those in general use by corporations, and the assumption is a safe one, it is easy to see why investments of this character are sought after and relied upon. No better form could be adopted to assure the purchaser that he can buy with safety. He is told, under the seal of the corporation, that the shareholder is entitled to so much stock, which can be transferred on the books of the corporation, in person or by attorney, when the certificates are surrendered, but not otherwise. This is a notification to all persons interested to know, that whoever in good faith buys the stock, and produces to the corporation the certificates, regularly assigned, with power to transfer, is entitled to have the stock transferred to him. And the notification goes further, for it assures the holder that the corporation will not transfer the stock to any one not in possession of the certificates.

In this state of case Lanier and Handy made their purchase of Culver. They bought for value, without knowledge of any adverse claim, in full faith that the bank would observe its engagements, and pursued in all respects the directions given in the certificates. They were not told to give notice to the bank of their purchase, nor was there any necessity for notice, because, by the rules of the bank, Culver could not transfer the stock in the absence of the certificates, and these they had in their possession. It is therefore clear, in making their purchase of Culver, that they had a right to rely on the certificates as securing to them the stock which they represented. And it is equally clear that the bank, in allowing this stock to be transferred to other parties while the certificates were outstanding in the hands of bon a fide holders, was guilty of a breach of corporate duty, and as its conduct operated to the injury of Lanier and Handy, an action will lie in their behalf to obtain satisfaction for the injury.

These views dispose of this case, and they are sustained by recent decisions in the Court of Appeals of New York and the Supreme Court of Connecticut, and, as we are advised, they also are supported by the Supreme Court of New Jersey in a case not yet reported.

JUDGMENT AFFIRMED.

title: Bank v. Lanier/Opinion of the Court


text: Talk:Bank v. Lanier/Opinion of the Court


text:
Dewing v. Sears

IN error to the Superior Court of Massachusetts, the case being thus:

Sears brought suits in one of the State courts of Massachusetts to recover rent due in different quarters upon a lease executed August 14, 1828, for the term of one hundred years, in which the yearly rent reserved was 'four ounces, two pennyweights, and twelve grains of pure gold, in coined money,' payable quarterly. By the act of April 2, 1792, which was in force when the lease was made, the rent was just $80 per annum, or $20 a quarter, in gold coin. But by the act of June 28, 1834, and the act of January 18, 1837, which were in force when the rent sued for fell due, the rent was $85.27 per annum, or $21.31 a quarter, in gold coin.

The State court gave judgment for the market value, in United States notes, of the coined money for each quarter's rent on the days the same fell due, with interest thereon; and this judgment being affirmed in the highest court of the State, the cases were brought here for review.

Mr. Caleb Cushing submitted them on briefs of Mr. E. M. Bigelow, for the plaintiff in error; observing that the cases were not distinguishable from Bronson v. Rodes and Butler v. Horwitz; and that therefore the courts below should have given judgment for the rent and interest in coined money.

No opposing counsel.

Mr. Justice STRONG delivered the opinion of the court.

title: Dewing v. Sears


text: Talk:Dewing v. Sears

title: Talk:Dewing v. Sears


text:
Dewing v. Sears/Opinion of the Court

The contract in these cases was for the payment or delivery of a specified weight of pure gold, solvable in coined money. They are, therefore, governed by the decisions heretofore made by this court in Bronson v. Rodes, and Butler v. Horwitz. It follows that the judgments entered in the Superior Court were erroneous. They should have been entered for coined dollars and parts of dollars, instead of treasury notes equivalent in market value to the value in coined money of the stipulated weight of pure gold.

JUDGMENT in each case REVERSED, and the causes remanded with instructions to enter judgment in accordance with the

FOREGOING OPINION.

title: Dewing v. Sears/Opinion of the Court


text: Talk:Dewing v. Sears/Opinion of the Court


text:
Rankin v. The State

IN error to the Supreme Court of Tennessee; the case being this:

An indictment had been found in one of the State courts of Tennessee, at August Term, 1865, against a certain Rankin, and ten other persons named in the indictment, charging them with the murder of one Thornhill, on the first of June preceding. The defendant, in August Term, 1866, pleaded that on the day mentioned in the indictment he was in the military service of the United States, in the military district of East Tennessee, being first lieutenant of company B of the 9th Tennessee Cavalry, and bound to obey all lawful orders of his superiors, 'then and there existing and being an insurrection and civil war in said military district;' and that on the 5th day of October thereafter he was arraigned and put on trial at Chattanooga, before a general court-martial, for the same identical crime with which he was charged by the indictment, and was acquitted thereof; and he set forth the record and proceedings of the court-martial. To this plea the attorney-general filed a replication, denying the existence of the record, and the continuance of the war, and alleging fraud in the procurement of the trial by court-martial. The defendant demurred, and the court sustained the demurrer. The attorney-general then filed a new replication, the case was tried, and the defendant was acquitted. Writ of error being brought, the Supreme Court of the State reversed the decree of acquittal, on the ground that the defendant's plea was insufficient, and remanded the case to the Circuit Court for trial. The effect of this judgment was to overrule the defendant's plea, and to require him to plead over to the indictment.

The case was now brought here by Rankin, under the 25th section of the Judiciary Act, which gives a writ of error to this court from the highest court of the State on 'final judgments,' in certain cases, specified in the section.

Messrs. H. Maynard, and R. M. Barton, for the plaintiff in error.

No opposing counsel.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Rankin v. The State


text: Talk:Rankin v. The State

title: Talk:Rankin v. The State


text:
Rankin v. The State/Opinion of the Court

The difficulty with the case, as brought before us, is that the judgment was not a final one in the case. This court, under the 25th section of the Judiciary Act, can only take cognizance of final judgments of the State courts. And although the court has been liberal in its construction of the statute as to what judgments are final, yet the judgment in this case cannot be deemed such by any reasonable stretch of construction. It is a rule in criminal law in favorem vitae, in capital cases, that when a special plea in bar is found against the prisoner, either upon issue tried by a jury, or upon a point of law decided by the court, he shall not be concluded or convicted thereon, but shall have judgment of respondeat ouster, and may plead over to the felony the general issue, not guilty. And this is the effect of the judgment of reversal rendered by the Supreme Court of Tennessee in this case; so that in no sense can that judgment be deemed a final one. The case must go back and be tried upon its merits, and final judgment must be rendered before this court can take jurisdiction. If after that it should be brought here for review, we can then examine the defendant's plea and decide upon its sufficiency.

WRIT OF ERROR DISMISSED.


text: Talk:Rankin v. The State/Opinion of the Court


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Page:A short history of social life in England.djvu/59

Rh which was notified by the bride's shoe being delivered to the bridegroom, who touched her on the head with it in token of his supremacy over her.

With regard to this supremacy, girls were required to wear their hair long and loose before marriage, flowing locks being typical of their youth and freedom. After marriage the hair was cut short, like that of a slave, to show that a position of servitude had been accepted. As the social position of women advanced they rebelled against this idea, and obtained leave to bind it in folds and plaits close to the head.

It is a well-known fact that our forefathers systematically beat their wives. "Three blows with a broomstick" were considered salutary at times to keep them in order!

Notwithstanding this apparent subordination, women among the Angles and Saxons were greatly valued and respected, being encouraged to take their place in public affairs with even more freedom than is theirs to-day. While woman was still the "spinster," spinning the thread and weaving the wool of every garment worn by the men of the family, yet she was allowed to possess and inherit her own lands,


text:
Edmondson v. Bloomshire

APPEAL from the Circuit Court for the Southern District of Ohio, in which court John Edmondson and Littleton Waddell in right of his wife Elizabeth, sister of the said John, filed a bill against Adam Bloomshire and others, to compel a conveyance of certain lands in Ohio, alleged to be in the possession of the defendants. The court below dismissed the bill, and the complainants appealed.

Both in the court below and here several interesting and difficult questions were raised; and fully and ably argued by Messrs. H. Stanberry and J. B. Baldwin, for the complainants, and Messrs. William Lawrence and J. W. Robinson, contra:

But the case as passed on by the court avoided a decision on these, and placed the judgment on the meaning of a peculiar and badly expressed will, and certain facts which explained it. The case, therefore, presenting nothing of interest, the arguments of counsel upon the construction of the will and evidence are suppressed.

Mr. Justice CLIFFORD stated the case and delivered the opinion of the court.

title: Edmondson v. Bloomshire


text: Talk:Edmondson v. Bloomshire

title: Talk:Edmondson v. Bloomshire


text:
Edmondson v. Bloomshire/Opinion of the Court

Volunteer forces for the public service in the war of the Revolution were, in many instances, furnished by the States, and all such, as well as the regular forces, were paid for their services to a large extent in continental money, which so depreciated in a short time as to become almost valueless.

Troops for that service were raised by the State of Virginia, known as the Virginia line on continental establishment, and they also were paid for their services in that currency; and in order to afford relief for the loss which the troops sustained in that way, the legislature of the State, at the November session 1781, passed an act directing the auditor of public accounts to settle and adjust the pay and accounts of the officers and soldiers of that line, so as to make their claims for pay and subsistence equal to specie, such adjustment to cover the period from the first day of January, 1777, to the last day of December, 1781; and the directions to the auditor were that he should issue printed certificates to the respective applicants for the balance found due to them in such adjustment, payable on or before the first day of January, 1785, with interest at the rate of six per centum per annum.

Directions were also given to the auditor in the same act that he should in like manner settle and adjust the accounts of all officers and soldiers of the said line who have fallen or died in the service during that period, and the provision was that their representatives should be entitled to such certificates, and all other benefits and advantages therein granted to the officers and soldiers in the line at the date of the act.

None of these matters are the subject of controversy, and it is also alleged and admitted that William Rickman, of Charles City, Virginia, was a deputy director general in the Virginia line on continental establishment; that he served three years or more as such director, and that he thereby became entitled also to Virginia military bounty-lands.

On the seventh of August, 1778, William Rickman made and published his last will and testament, by which he gave and bequeathed to his wife, Elizabeth Rickman, all his estate, both real and personal, in fee simple, and appointed his wife, together with Benjamin Harrison, her father, and her brother, Benjamin Harrison, Jr., the executors of his will so made and published. Three years afterwards the testator died, leaving the said last will and testament unrevoked and in full force, and the same was subsequently duly proved and admitted to record.

Application in behalf of Elizabeth Rickman, as the widow and executrix of her deceased husband, was afterwards made to the auditor of public accounts to settle and adjust the pay and subsistence accounts of the testator as an officer in the Virginia line on continental establishment, and on the twenty-eighth of February, 1784, the requested adjustment was made. By that adjustment the auditor of public accounts found that there was a balance due to the deceased, or to his legal representatives, of one thousand seven hundred and twenty-two pounds nineteen shillings and two pence, and the record shows that the evidence of the indebtedness of the State to the deceased for that amount was delivered to B. Harrison on the same day the adjustment was made.

Prior to that adjustment, to wit, on the twenty-ninth of November, 1783, the House of Delegates of Virginia passed two resolutions which it becomes important to notice.

1. That the petition of Elizabeth Rickman praying that the auditor of public accounts should settle and adjust the pay and accounts of her late husband was reasonable, showing satisfactorily that the adjustment was largely influenced by the legislature.

2. That Elizabeth Rickman, widow of William Rickman, be allowed such a portion of land as the rank and service of the deceased merit.

Pursuant to the second resolution the governor of the State, Benjamin Harrison, on the twelfth of January, 1784, executed a certificate that Elizabeth Rickman, widow and executrix of William Rickman, director general, is entitled to the proportion of land allowed a colonel in the continental line who has served three years, and on the following day a warrant for six thousand six hundred and sixty-six and two-thirds acres was issued to her, signed by the register of the State land office.

Five years later she intermarried with John Edmondson, and they afterwards, during the succeeding year, united in executing a deed of trust or post-nuptial agreement to her brother, Carter B. Harrison, of all her estate, real and personal, or to which she was entitled under the will of her former husband, for her separate use and advantage, her heirs, executors, and administrators, the husband stipulating therein that she might dispose of the same by her last will and testament as she should see fit to do.

On the third of May, 1790, Elizabeth Edmondson made her last will and testament, which was olographic, and on the first day of January, 1791, she died, leaving her will in full force, and on the twentieth of the same month the will was proved and admitted to record in the county where she resided at her decease.

Absolute title to the lands embraced in the warrant signed by the land register is claimed by the complainants, upon the ground that the same were devised in fee simple by Elizabeth Edmondson to her husband, John Edmondson, by her last will and testament, but the respondents deny that her will when properly construed contains any such devise, and insist that the will, if it made any disposition of those lands, only devised to the husband a life estate in the same, and that the fee simple title to the same, inasmuch as the testatrix died without issue, descended to her brothers and sisters, under whom they claim, as alleged in the answer.

Unless the course of descent was broken by the will of the testatrix, it is clear that her brothers and sisters became the owners of the lands embraced in that warrant, as it is conceded that she died without issue.

Afterwards, in the year 1795, the said John Edmondson married again, and the record shows that he had three children by the second wife, one of whom died before the father without issue, leaving John and Elizabeth, the latter having since intermarried with Littleton Waddell, the other complainant and appellant in the case before the court.

Before his decease, John Edmondson, the father of the two appellants, John and Elizabeth, also made a will and devised all his property to his three children, one of whom, as before stated, died during the lifetime of the father. His will bears date on the third of October, 1802, and the pleadings show that he died on the first day of December following, leaving the two children before named as his principal devisees and sole heirs-at-law. They, together with the husband of Elizabeth, claim the lands in controversy upon the ground that the same were devised to the father of John and Elizabeth by the will of his first wife.

Defences of various kinds are set up in the answer, but in the view taken of the case it is not necessary to enter into those details, as the court is of the opinion that the decision of the case must turn upon the construction of the will of Elizabeth Edmondson, deceased, it being conceded that she held the title to the lands in controversy under the warrant granted to her for the same by the State.

Proofs were introduced by both parties, but the Circuit Court was of the opinion that the complainants were not entitled to recover, and entered a decree dismissing the bill of complaint. Whereupon the complainants appealed to this court, but the appeal was dismissed, it appearing on the face of the record that the transcript was not filed in this court during the term next succeeding the allowance of the appeal.

Since that time a new appeal has been allowed to the complainants and they have removed the cause into this court, seeking to reverse the same decree from which the first appeal was taken. Pending the present appeal a motion to dismiss was filed by the respondents, which was heard at the same time with the merits, but the questions involved in the motion will not be decided, as the court is of the opinion that the decree of the Circuit Court dismissing the bill of complaint for the want of equity is correct.

Motions of the kind are usually determined before proceeding to examine the merits of the controversy, but the court deems it proper to adopt a different course on the present occasion for the following reasons, among others which might be mentioned: (1.) Because differences of opinion exist in the court as to the proper disposition to be made of the motion, irrespective of the fact that the case has been twice heard upon the merits. (2.) Because the respondents, when the case was here before, went to final hearing without making any objections to the regularity of the appeal.

Affirmative relief, it is true, could not be granted to the complainants without first disposing of some of the questions involved in the motion, but inasmuch as an affirmance of the decree of the Circuit Court will effect substantially the same result as a dismissal of the appeal, the court is not inclined to decide the preliminary questions.

Letters of administration on the estate of Elizabeth Edmondson were granted to John Edmondson, the husband of the deceased, as no executor was named in the will. Several bequests to the husband were made by the testatrix in the will which need not be noticed, as they furnish no aid in the solution of the question presented for decision. Those clauses relate to certain articles of personal property which she gave to her husband forever, and to certain slaves which she gave to him 'to dispose of as he may think proper.' Preceding the clause disposing of the articles of personal property the will contains the following devise: 'I give to my dear husband, John Edmondson, all the land I possess, during his life,' but the will contains no residuary clause of a general nature. Enough appears to show that the testatrix owned real estate, as she devised the house and land where they lived, at the death of her husband, to one of her brothers, and to another brother she gave, at the decease of her husband, a certain other tract described in the will as having been purchased by her first husband, but the will does not in terms make any ultimate disposition of the lands devised to her husband during his life except those two parcels, and the complainants do not controvert the proposition that the lands in question, if they were devised to the husband under that clause of the will, descended at his decease to the brothers and sisters of the testatrix, as contended by the respondents. They deny, however, that the lands in controversy, or any portion of the same, were devised to him by that clause. On the contrary, they rely upon another clause in the will as the foundation of their claim, which follows the bequests before mentioned to her husband and certain other bequests of like kind to her brothers and sisters and other relatives, specifying in each of the several bequests the name of the legatee.

Having devised all the land she possessed to her husband during his life, and made those bequests, the testatrix provides as follows: 'My certificates that are in the hands of my brother Ben, I desire may be given to my husband to dispose of as he may think proper.' Founded on that clause in the will, the theory of the complainants is that the warrant signed by the land agent for the six thousand six hundred and sixty-six and two-thirds acres of bounty-lands was devised to their father, and that at the decease of the testatrix he became the owner in fee simple of the lands surveyed and located under that warrant, and that they, as the devisees in his will and his sole heirs-at-law, are the lawful owners of the lands in controversy.

Support to that theory is attempted to be drawn from the fact that the governor, before the warrant was signed, granted a certificate in which he certified that the widow and executrix of the deceased claimant was entitled to the proportion of land allowed to a colonel of the continental line who had served three years, but the decisive answer to any such attempt is that the certificate of the governor was, on the following day, deposited in the proper office as the legal foundation of the land warrant, where it has ever since remained.

Most of the introductory allegations of the bill of complaint are admitted by the respondents. They also admit that Elizabeth Rickman, before her marriage with John Edmondson, obtained the certificates for the balance due her first husband for pay and subsistence as director general in the continental line, and also for the interest due on the same, and that she also obtained the warrant for the lands in controversy, but they utterly deny that the word certificates as used in the clause of the will under which the complainants claim means or intends the warrant in question or the lands described in the pleadings.

Persons having claims to bounty lands were required at that time, by the laws of that State, to exhibit their vouchers to the executive, and if found to be correct and the claim was allowed, it was the duty of the governor to issue a certificate to that effect to the register of the land office, and the register, upon the filing of that certificate, was required to grant the warrant.

More than six years before the testatrix made her last will and testament in which she uses the phrase 'my certificates that are in the hands of my brother Ben,' the certificate as to the bounty lands had been surrendered to the register of the land office, and the land warrant in question had been issued in its place, and there is no evidence that the land warrant or the certificate which preceded it was ever in the hands of any one of the brothers of the testatrix.

Undoubtedly the certificate for the balance due for pay and the subsistence accounts arising from the depreciation of the currency in which the original claimant was paid and the certificates for the interest on the same did pass by that clause in the will to the husband of the testatrix, and the proofs are satisfactory that those certificates were in the hands of her brother Benjamin at the date of the will. Those certificates bear date on the twenty-eighth of February, 1784, and they were immediately delivered to the brother named in the will as having them in his hands, where they remained to the date of the will of the testatrix and to the time of her death.

Certified copies of the certificate signed by the governor as the foundation for the land warrant are exhibited in the record as given by the register of the land office, which shows that it could not have been in the hands of her brother at the date of the will, as it had been in the register's office more than six years before the will was executed. Suppose, however, that it appeared that the land warrant had been in the possession of her brother, from its date to the time when the testatrix died, still it would be difficult, if not impossible, to hold that the signification of the word certificates, as used in the will, is sufficiently comprehensive to include that instrument, as the word certificate seems to have an appropriate and direct reference to the instruments of evidence issued to the testatrix for the back pay and subsistence accounts of her former husband, as before explained.

Attempt is made in argument to show that the words certificate and warrant are sometimes used in the statutes of the State as words of equivalent import, but the examples put do not relate to the same subject, and if they did it would not be difficult to show that the words are there used rather as conferring an alternative authority than as words of synonymous signification. Be that as it may, still it is evident that the word certificates was used by the testatrix as referring directly to the instruments in the hands of her brother, which were given in the adjustment of her claim for the balance due to her former husband to make his pay as director-general equal to what it would have been if he had been paid in specie.

Strong confirmation of that view is derived from the course pursued in the settlement of her estate and the long acquiescence of the complainants in the pretensions of the respondents and those under whom they claim. Evidence, however, of the most satisfactory character was introduced by the respondents showing that the land warrant never was in the hands of her brother prior to the date of the will, or at any other time, but it is not deemed necessary to enter into those details, as we are all of the opinion that the land warrant, if it passed to the husband by the will, passed under the devise which gave him during his life all the land which the testatrix possessed, that it did not pass to him by the other devise, and that the decree of the Circuit Court dismissing the bill of complaint is correct.

DECREE AFFIRMED.


text: Talk:Edmondson v. Bloomshire/Opinion of the Court


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Bank of Leavenworth v. Hunt Assignee

ERROR to the Circuit Court for the District of Kansas.

This was an action brought by the assignee in bankruptcy of Keller and Gladding to recover of the Second National Bank of Leavenworth the value of certain property alleged to have been transferred to it by them in fraud of the provisions of the Bankrupt Act.

On the trial evidence was introduced, on the part of the plaintiff, tending to show that the bankrupts had made a conveyance of their property to the defendants when they were insolvent, and that the defendants had reasonable grounds for believing that the bankrupts were in this condition at the time; that the transfer was not made in the ordinary course of their business; and that, on the first day of August, 1866, they executed a chattel-mortgage on portions of their property to the cashier of the bank to secure the payment of two notes, each for four thousand dollars, belonging to that institution. This chattel-mortgage provided that in case of default in the payment of the notes or interest, it should be lawful for the cashier of the bank to take possession of the property and sell the same. The mortgage was never deposited in the office of any register of deeds of any county in Kansas. The statute of Kansas in force at the time declared a mortgage of goods and chattels, not accompanied by an immediate delivery of the property and followed by an actual and continued change of possession, absolutely void as against creditors and subsequent purchasers and mortgagees in good faith, unless the mortgage or a copy thereof was forthwith deposited in the office of the register of deeds in the county where the property was situated, or if the mortgagor was a resident of the State, then in the county of which he was a resident.

Thereupon evidence was given on the part of the defendants, tending to show that the bankrupts, in conversations preliminary to the execution of the chattel-mortgage, for the purpose of securing their existing indebtedness to the bank, as well as to obtain future advances, promised its president to deliver to the bank, whenever it should desire, the entire stock of goods which they might have at the time on hand; that in February, 1867, in pursuance of this agreement, they delivered a portion of their stock, amounting in value to $2542, and in July following they turned over the balance to the bank.

Evidence was also given, tending to show that the bankrupts continued to sell the goods included in the mortgage, and all other goods at their store, with the consent of the defendants, until the transfer in July, 1867, and that this was contemplated by the parties when the mortgage was made.

The defendants thereupon prayed the court to instruct the jury, that if they 'believe from the evidence that the conveyance by Keller and Gladding, in July, 1867, was made in pursuance of the original agreement between them and the bank, they are to regard the sale or transfer as valid, and not [as made] in contemplation of evading the provisions of the bankrupt law.' The court refused to give the instruction, and the defendants excepted. The correctness of this refusal was the question presented for consideration in this court. The plaintiff obtained judgment, and the defendants brought the case here by writ of error.

Messrs. Sherry and Helm, for the plaintiffs in error; Messrs. Stillings and Wheat, contra.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

title: Bank of Leavenworth v. Hunt Assignee


text: Talk:Bank of Leavenworth v. Hunt Assignee


text:
Bank of Leavenworth v. Hunt Assignee/Opinion of the Court

The question presented for our consideration arises upon the refusal of the Circuit Court to give the instruction prayed; and it is one easily answered. It would have been error to have given the instruction, for it assumes that there was an original valid agreement between the parties that the plaintiffs should deliver to the bank the entire stock of goods when desired.

In the first place, the record does not disclose that any such agreement was established; it only discloses that the evidence introduced tended to show that, in conversations preliminary to the execution of the mortgage, the bankrupts made a promise to the president of the bank to that effect.

Courts cannot assume, in their instructions to juries, that material facts upon which the parties rely are established, unless they are admitted, or the evidence respecting them is not controverted. The courts would otherwise encroach upon the appropriate and exclusive province of juries.

In the second place, the supposed agreement, if established, was void as against other creditors of the bankrupts. It did not create any lien upon the property, or entitle the bank to any preference over other creditors in the event of the debtors being afterwards proceeded against under the Bankrupt Act. The subsequent sale, even if made in pursuance of the agreement, did not take effect by relation at its date. Transfers of personal property, situated as in this case, only take effect as against creditors from the delivery of the property to the purchaser.

The stipulation in the chattel-mortgage, providing that in case of default in the payment of the notes or interest, it should be lawful for the cashier of the bank to take possession of the property and sell the same, does not aid the defendants for two reasons, both equally conclusive. 1st; The mortgage was never deposited in the office of the register of deeds of the county where the property was situated or the mortgagors resided, and was therefore void as against creditors under the statute of Kansas. 2d; The mortgagors remained in possession of the goods notwithstanding the mortgage, and by its terms; and the testimony tended to show that they continued to sell the goods, with the assent of the defendants, until the transfer in July, 1867. The court could not assume the instrument to be valid in the face of this testimony, for if the facts were found by the jury which the testimony tended to establish, the mortgage was fraudulent and void as against creditors. #fn-s-s

In any view of the case the instruction prayed was properly refused.

JUDGMENT AFFIRMED.


text: Talk:Bank of Leavenworth v. Hunt Assignee/Opinion of the Court


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Missouri v. Kentucky

THE State of Missouri brought here, in February, 1859, her original bill against the State of Kentucky, the purpose of the bill being to ascertain and establish, by a decree of this court, the boundary between the two States at a point on the Mississippi River known as Wolf Island, which is about twenty miles below the mouth of the Ohio. The State of Missouri insisted that the island was a part of her territory, while the State of Kentucky asserted the contrary. The bill alleged that both States were bounded at that point by the main channel of the river, and that the island, at the time the boundaries were fixed, was and is on the Missouri side of said channel.

The answer stated that Kentucky, formed out of territory originally embraced within the State of Virginia, was admitted into the Union on the 1st day of June, 1792, and that she had always claimed her boundary on the Mississippi to the middle of the river, and Wolf Island to be within her jurisdiction and limits as derived from Virginia; a part of Hickman County, one of the counties of Kentucky, opposite to which it lay. And it denied that the island belonged to Missouri, or that the main channel was on the eastern side of it when the boundaries of the States were fixed.

An immense amount of testimony, derived from maps as ancient as the earliest well-known navigation of the river; from the journals of ancient and later travellers; from official and quasi official surveys, &c., was introduced by the counsel of both sides, but more especially by those of Missouri, to show where the main channel had been and was-whether on the east or on the west of the island-in 1763, where the boundary between France and England, then owners respectively of the regions now known as Missouri and Kentucky, and more particularly where it was in 1783, when by our treaty of peace with Great Britain we succeeded to the rights of that government; and also where it was in 1820, when Missouri, part of the territory acquired from France, was admitted into the Union; the middle of the main channel of the river, confessedly, having been fixed in all these cases as the boundary. The depositions of many witnesses on both sides, particularly on the defendant's, were also read, testifying as to where within the memory of man the channel in dispute had been.

The witnesses of the complainant-to give the case of Missouri more particularly-stated that from the present time back to 1830 the main channel of the river was on the east side of the island, and that from 1830 as far back as 1794, both channels were navigable. They admitted that, from 1832 to the present time, the eastern channel had been chiefly used for navigation.

The early maps and charts of the river, introduced by the State of Missouri, laid down the island as nearly in the middle of the river, but the larger portion of it west of the middle line. Amongst these were the map of Lieutenant Ross, of the British army, made in 1765, in an expedition from Fort Chartres to New Orleans; the map of Captain Philip Pittman, published in London in 1770; the map of General Collot, in 1796; Hutchins's map, in 1778; and Luke Munsell's map of Kentucky, made in 1818.

Extracts from the books of early travellers stated their passage down the river on the east side; among these books were the travels of Ashe in 1806, and of Sir Francis Baily in 1796.

The Pittsburg Navigator, in several editions from 1806 to 1818, was relied on, stating the channel to be on both sides, but best on the east side.

Reliance was had, too, on certain official or quasi official maps of the Federal government. An official map, made in 1821, by the United States Engineers' Department, under an act of Congress of April 14, 1820, and a United States Survey and Report, made in 1838, by the Land Department, with official computation, showed the area of the cross section of the east channel to be 31,020.33 square feet, and of the west channel to be 18,625.71, and the mean velocity of the east channel to be 3.72 feet per second, and of the west channel to be 2.79 feet, and giving the gallons discharged by the east channel per second as 115,395, and of the west channel 51,965, being less than one-half on the west side; and also the greatest depth of water on the east side as being 23 feet against 22 1/2. General Barnard's apparently official map of 1821 was relied on as laying down the channel on the east side; as also the United States Coast Survey map, of 1864, presenting it in the same way. The island, it seemed, had been surveyed by the United States, in March, 1821, as part of Missouri; and in April, 1823, steps were taken to locate on it a New Madrid certificate for 600 arpents; and in August, 1834, a plot of the island was sent to the Register of the Land Office, at Jackson, Missouri.

The State of Missouri relied, also, a good deal on the fact, which seemed to have been sufficiently proven, that in 1820 the sheriff of New Madrid County (the county in Missouri opposite to the island), had executed process of the Missouri courts on the island against the only settler on it, one Hunter, and who entered upon it prior to 1803; and that one of the Missouri Circuit Court judges had once-though when did not appear-resided on the island.

Evidence introduced by Missouri tended to show that the first clear act of jurisdiction exercised by Kentucky was not earlier than 1826; and that it was only in 1837, when her legislature passed an act for the sale of lands on the island, and her people purchased under her title so offered, that Kentucky asserted open and exclusive ownership of the island.

The State of Kentucky on its side gave proof, which was much of it in direct opposition to that presented by Missouri. It proved that land on the island was entered in the Virginia land office during the Revolutionary war; the State now known as Kentucky being then part of Virginia; and that in 1828, one of the courts of Kentucky exercised jurisdiction over the island in a matter of apprenticeship. Although it presented fewer evidences from ancient maps and books of travels than did the State of Missouri, it produced more living persons whose recollections came in support of its case. More than a score of witnesses, many of them ancient, including boatmen, navigators, and several persons who had lived from childhood close by the island, some opposite to it, and specially interested by their business to note on which side vessels sailed, all testified that while now the main channel of the river was to be regarded as on the east side of the island, it was undoubtedly and within their memory and knowledge not so formerly, but was on the west side; many of these witnesses going into details, and showing a positive and experimental knowledge on the subject upon which they spoke; details of a sort that could not easily be invented, and which if not invented but true, tended to give the case to Kentucky.

The geology of the island and its sylva were relied on by Kentucky, and shown to be more coincident with its own soil and woods than with those of Missouri; the argument hence being that what was now an island, was originally part of the mainland of Kentucky.

The counsel for Kentucky directed evidence yet more specially, to the physical changes which the shores of the two States had undergone since the years 1763, 1783, and 1820. It was not denied by them, that now and since 1820, the river on the east side of the island had become broad, deep, and navigable; the testimony introduced by them being directed to show that this was the result of physical and hydraulic causes, working changes since the boundary had been fixed; some of the changes being the results of actual efforts of science to improve the channel, but others, immeasurably more operative, natural ones only; a continuation of those changes caused in the basin of the Mississippi, by the mighty rises to which the river is subject; estimated at such magnitude that men of science have considered that the river poured past even at this high point of it, at the rise in March, 1858, 1,130,000 cubic feet per second; at the rise in April of that year 1,260,000, and at the rise in the following June (continuing for several days), the immense volume of 1,475,000 of cubic feet per second; inundating cities, changing courses of the stream, and in former ages leaving far to the west of the present rivercourse those crescent-shaped lakes, noted by Sir Charles Lyell and other geologists, plainly bends in the ancient channel.

These were causes, sufficient as the counsel of the State of Kentucky argued, to account for the change in the course of the channel; and the counsel produced a map known as H. G. Black's (see it infra, p. 409), showing how the eastern channel had been produced by recent mighty rushings of the river against the 'iron banks,' above the island; and which while they were able to resist the current, threw it with a rebound to the Missouri side, but which now yielding to the tremendous stream, and being gradually washed away, let the whole force of the river come in a more direct and easy course.

The statement, in more detail, of this great body of evidence, tending only to the establishment of facts, would serve no purpose of judicial science; and may be the more properly omitted by the reporter, since, in most of the details not already given, it is minutely presented by the learned justice who gives, after stating it, the opinion of the court as a result.

It was all systematically and clearly introduced for the party whom it was supposed to aid, by Messrs. M. Blair and F. A. Dick, in behalf of the State of Missouri, complainant; and by Messrs. G. Davis and H. Stanbery, on the other side; the arguments which, in view of the special nature of the case, were not limited as to time, and were made by those same gentlemen, having been elaborate and able.

Mr. Justice DAVIS delivered the opinion of the court.

title: Missouri v. Kentucky


text: Talk:Missouri v. Kentucky

title: Talk:Missouri v. Kentucky


text:
Missouri v. Kentucky/Opinion of the Court

It is unnecessary, for the purposes of this suit, to consider whether, on general principles, the middle of the channel of a navigable river which divides coterminous States, is not the true boundary between them, in the absence of express agreement to the contrary, because the treaty between France, Spain, and England, in February, 1763, stipulated that the middle of the River Mississippi should be the boundary between the British and the French territories on the continent of North America. And this line, established by the only sovereign powers at the time interested in the subject, has remained ever since as they settled it. It was recognized by the treaty of peace with Great Britain of 1783, and by different treaties since then, the last of which resulted in the acquisition of the territory of Louisiana (embracing the country west of the Mississippi) by the United States in 1803. The boundaries of Missouri, when she was admitted into the Union as a State in 1820, were fixed on this basis, as were those of Arkansas in 1836. And Kentucky succeeded, in 1792, to the ancient right and possession of Virginia, which extended, by virtue of these treaties, to the middle of the bed of the Mississippi River. It follows, therefore, that if Wolf Island, in 1763, or in 1820, or at any intermediate period between these dates, was east of this line, the jurisdiction of Kentucky rightfully attached to it. If the river has subsequently turned its course, and now runs east of the island, the status of the parties to this controversy is not altered by it, for the channel which the river abandoned remains, as before, the boundary between the States and the island does not, in consequence of this action of the water, change its owner.

That Virginia Claimed the ownership of the island as early as 1782 is very certain, for at that date the arable land on it was entered in the proper office of Virginia as vacant land lying within the territorial limits of the State, although it seems the entry was never surveyed or carried into a grant. And that Kentucky is now, and has been for many years prior to the commencement of this suit, in the actual and exclusive possession of the island, exercising the rights of sovereignty over it, is beyond dispute. The island lies opposite to, and forms part of, Hickman County, one of the counties of the State, and the lands embraced in it were, in May, 1837, surveyed under State authority, and have since then been sold and conveyed to the purchasers by the same authority. The people residing on it have paid taxes and exercised the elective franchise according to the laws of the State. In 1851, a resident of the island was elected to represent the county in the General Assembly, and served in that capacity. And as early as 1828, a minor living there with one Samuel Scott, was bound an apprentice to him by the proper court having jurisdiction of such subjects. This possession, fully established by acts like these, has never been disturbed. If Missouri has claimed the island to be within her boundaries, she has made no attempt to subject the people living there to her laws, or to require of them the performance of any duty belonging to the citizens of a State. Nor has there been any effort on her part to occupy the island, or to exercise jurisdiction over it. If there were proof that the island, by Legislation, had been included in the limits of New Madrid County, then the service of a writ in 1820, on the solitary settler there, by the sheriff of the county, would be an exercise of sovereign power on the part of the State. But in the absence of this proof, there is nothing to connect the State with the transaction, or from which an inference can be drawn that the sheriff was authorized to go on the island with his process. And for the same reason, it is hard to see how the fact, conceding it to be true, that a person occupying the position of a circuit judge of Missouri, once lived on the island (when or how long we are not informed), tends to show that the State intended to take possession of it.

These things may prove that, in the opinion of the judge and sheriff, the island belonged to Missouri, but they do not go further and put the State in any better position than she was, if they had not occurred. And so with the locator of the New Madrid Claim in 1821. He doubtless believed he had authority to locate his warrant on the island, but surely the State cannot claim that she acquired any right by this proceeding. There is, therefore, nothing in this record which shows that Kentucky has not maintained, for a long course of years, exclusive possession and jurisdiction over this territory and the people who inhabit it. It remains to be seen whether she shall remain in possession and continue to exercise this jurisdiction, or whether she shall give way to Missouri. The case is certainly not without its difficulties, but we think these difficulties can be removed by a fair examination of the testimony, and the right of the contestants properly determined.

The evidence to be considered consists of the testimony of living witnesses, the physical changes and indications at and above the island, and the maps and books produced by the complainant. In a controversy of this nature, where State pride is more or less involved, it is hardly to be expected that the witnesses would all agree in their testimony. And as this conflict does exist, it is necessary to consider the evidence somewhat in detail, in order to justify the conclusions we have reached concerning it.

There are eight witnesses called for the complainant, who testify confidently, that the main channel of the Mississippi River was always east of Wolf Island, and one of them (Swon), an experienced river-man, who navigated the river from 1821 to 1851, in all stages of water, says there are no indications that the main channel was ever on the west side. Only three of them knew the river prior to 1820, and they were engaged in the business of flat-boating, which is hardly ever undertaken in a low stage of water. There is nothing to show that any one of them ever made a personal examination of the channels and surrounding objects at this point, and there is a remarkable absence of facts to sustain their opinions. It is also noticeable, in connection with this evidence, that none of the witnesses (Hunter may be an exception) ever lived in the vicinity of the island, or remained there any length of time, and that all the knowledge any of them acquired of the state of the river was obtained by passing up or down it at different times, either on flatboats or steamboats. Notwithstanding they swear positively that the channel was always east of the island, yet Watson says it changed for about three years, and Ranney testifies that on one occasion, when the main channel was divided into three parts, the deepest water for a short time in the fall of the year was found on the west of the island, and steam boats passed on that side. But they do not prove a deficiency of water at any time in the Missouri channel, or that any boat, from that or any other cause, was ever hindered in any attempt to run it. It is undoubtedly true that the Kentucky channel, when the river was full, for many years has afforded a safe passage for boats, because at such a time, if the obstructions were not submerged they could be avoided, and navigators would take it as it was five miles the shortest. And passing the river only occasionally, and without any knowledge of where the volume of water flowed when the river was low, they would naturally conclude it was the main channel. It is equally true that now it is the main highway for the business of the river; but the point to be determined is, was it so as far back as 1763, or even 1820? If in the investigation of such an inquiry, positive certainty is not attainable, yet the evidence furnished by the defendant affords a reasonable solution of it. And, at any rate, it greatly outweighs the evidence on the other side, and in such a case the party in possession has the better right. The proof on behalf of the defendant consists of the testimony of twenty-seven witnesses. Many of them have been acquainted with the river from an early period in this century, and quite a number have spent their lives near the disputed territory, and, therefore, had better opportunities for observing the condition of the river at this point than the witnesses for the complainant, who only passed there occasionally. Nearly all of them are old men, and there is no diversity of opinion between them concerning the location of the main channel of the Mississippi River at Wolf Island. All who testify on the subject-there are only a few who do not-agree that until a comparatively recent period it ran west of the island, and to fortify their opinions they describe the state of the respective channels at different times, and tell what was done by themselves or others about the navigation of the river. They concur in saying that in early times it was difficult for flatboats, even in the highest stage of water, to get into the Kentucky chute, owing to the current running towards the Missouri side, and that if they succeeded in doing it, the navigation was obstructed on account of the narrow and crooked condition of the stream, which was filled with tow-heads, sand-bars, driftwood, and rack-heaps. One of the witnesses, in describing the appearance of this chute in 1804, states that it looked like lowlands, with cottonwood and cypress on it, and that there was only a narrow channel close to the island; all the other space to the Kentucky shore, now open water, was then covered with large cottonwood timber.

Other witnesses corroborate this testimony, and unite in saying that in early times, at an ordinary stage of water, it was impossible to take the Kentucky channel at all, on account of these obstructions, while the Missouri channel was wide, deep, and unobstructed. And one of them expresses the opinion that in low water, any one could have got to the island from the Kentucky shore without wetting his feet, by crossing the small streams on the drift-wood. But we are not left to conjecture on this point, for Ramsey, an old inhabitant of the country, swears that on one occasion he walked over from the Kentucky side to the island, nearly all the way on dry land, and the residue on drift-wood, and noticed while on the island, that there was plenty of water in the Missouri channel.

Can it be possible that such a stream at this time was the main channel of the Mississippi River? Although the Kentucky channel, from natural causes, had improved in 1825, still in the low water of that year it did not have a depth of over two and a half feet nor a width exceeding one hundred and fifty yards, while steamboats passed through the Missouri channel without any difficulty. The witness who testifies to this state of things, at that time, had his attention especially called to the subject as he kept a woodyard on the Kentucky side opposite the island, and missed the opportunity of supplying boats that ran the Missouri channel.

And there is no one who speaks of a scarcity of water in the Missouri channel, until after Captain Shreve operated in this locality with his snag-boats, which had the effect of opening and deepening the Kentucky channel, so that it has now become the navigable stream. Judge Underwood says that in 1820 the west channel was between four and five hundred yards wider than the east one, and must have discharged nearly double the quantity of water. And one witness testifies that the east channel was formerly so narrow that two steamers could not pass in it abreast. It would seem, therefore, that the condition of this channel, as told by these witnesses, was proof enough that the main channel was west of the island; but this is not all the proof on the subject. Russell, who was appointed superintendent of river improvements in 1842, and knew the island since 1814, and spent five months there in 1819, swears that in descending the river in 1830 or 1831 he sounded the Kentucky channel, and, not finding water enough in it by two or three feet to float his boat, was compelled to go down on the Missouri side, where there was nine or ten feet of water. To the same effect is the evidence of Holton, who, in 1828, being unable to get up the east channel with a steamer drawing upwards of six feet of water, went over to the Missouri side and passed through without any trouble. And, three years later, Peebles saw three or four steamers attempt to run up the Kentucky channel, and failing to get through, back out and easily ascend the other. Christopher, who ran the river from 1824 to 1861, on one occasion could not pass the bar at the foot of the Kentucky chute with a boat drawing twelve feet of water, and was compelled to change to the other side, and got up without any difficulty; and there are other witnesses who testify to the inability of boats to pass east of the island, and to their safe passage west of it. Indeed, the concurrent testimony of all the persons engaged in the navigation of the river is, that they could never safely go east of the island, unless in high water, and that they uniformly took the west channel in dry seasons; and the flatboatmen, in early times, even in high water, were frequently compelled to uncouple their boats in order to descend the Kentucky channel, and then were obliged to pull through by trees, on account of the narrowness of the channel. In low water they would quite often get aground and have to wait for a rise of the river to take them out. It will readily be seen that this class of men would naturally take risks in order to save five miles of navigation. Moseby, who has lived in the vicinity for forty-two years, testifies to the greater volume of water in the Missouri channel, and to boats usually taking it; and all the witnesses agree that since they knew the river the chutes around the island have undergone great changes, and that the east one is now, in depth, width, and freedom from obstructions, wholly unlike what it was formerly. In this state of proof, how can it be successfully contended that Missouri has any just claim to the island?

But there is additional proof growing out of certain physical facts connected with this locality which we will proceed to consider. Islands are formed in the Mississippi River by accretions produced by the deposit at a particular place of the soil and sand constantly floating in it, and by the river cutting a new channel through the mainland on one or the other of its shores. The inquiry naturally suggests itself, of which class is Wolf Island? If the latter, then the further inquiry, whether it was detached from Missouri or Kentucky. The evidence applicable to this subject tends strongly to show that the island is not the result of accretions, but was once a part of the mainland of Kentucky. Islands formed by accretions are, in river phraseology, called made land, while those produced by the other process necessarily are of primitive formation. It is easy to distinguish them on account of the difference in their soil and timber.

It has been found, by observation and experience, that primitive soil produces trees chiefly of the hard-wood varieties, while the timber growing on land of secondary formation-the effect of accretions-is principally cottonwood. Wolf Island is of large area, containing about fifteen thousand acres of land, and, with the exception of some narrow accretions on its shores, is primitive land, and has the primitive forest growing on it.

On the high land of the island there are the largest poplar, chincapin, oak, and black-jack trees growing, and primitive soil only has the constituent elements to produce such timber. But this is not all, for trees of like kind and size are found on the Kentucky side on what is called the second bottom, near the foot of the Iron Banks, which is about two feet higher than the bottom on which Columbus is located. There are no such trees on the Missouri shore. Those found there are of a different kind and much smaller growth. Besides this, the high land on the island is on the same level with the second bottom on the Kentucky side, while it is four or five feet higher than the land on the Missouri side opposite the island and above it. In this state of the case, it would seem clear that this second bottom and island were once parts of the same table of land, and, at some remote period, were separated by the formation of the east channel. In the nature of things, it is impossible to tell when this occurred, nor is it necessary to decide that question, for, by the memory of living witnesses, we are enabled to determine that the east channel, or cut-off, as it should be called, was not the main channel down to 1820.

If the testimony already noticed be not enough to prove this, there is the additional evidence furnished by the changes which the river has accomplished in the neighborhood of the island, within the recollection of many intelligent persons. These changes are important, and are shown on the map of H. G. Black (on the opposite page), which is proved to be a correct representation both of the present and original position of the island, the river, and its banks. The effect of the evidence on this subject is, that the filling up at the mouth of Town Creek, the washing away of the point above on the Missouri side, the abrasion of the Iron Banks, and the partial destruction of Toney's Point, have operated to straighten the banks above the island on the Kentucky side, to bring the water closer to them, and, as a consequence, to cast it into the east channel. And that, before these projecting points were removed, and the accretions made at Town Creek, the water was thrown towards the Missouri side. This was necessarily so, as can readily be seen by an inspection of the map. In the original condition of the river the current must have been carried from the Missouri point to the Iron Banks opposite, and rebounded from them across to the Missouri side, so as to carry the channel west of Wolf Island. And it is equally clear that the changes which have occurred within this century have straightened the river and turned the channel to the east of the island. Can there be any need of further evidence to sustain the long-continued possession of Kentucky to the island, and are not the witnesses, who swear that in their time the main channel of the Mississippi River ran west of Wolf Island, abundantly fortified?

But it is said, the maps of the early explorers of the river and the reports of travellers, prove the channel always to have been east of the island. The answer to this is, that evidence of this character is mere hearsay as to facts within the memory of witnesses, and if this consideration does not exclude all the books and maps since 1800, it certainly renders them of little value in the determination of the question in dispute. If such evidence differs from that of living witnesses, based on facts, the latter is to be preferred. Can there be a doubt that it would be wrong in principle, to dispossess a party of property on the mere statements-not sworn to-of travellers and exporers, when living witnesses, testifying under oath and subject to cross-examination, and the physical facts of the case, contradict them?

But, it is claimed the books and maps which antedate human testimony, establish the right of Missouri to this island. If this be so, there is recent authority for saying they are unreliable. In 1861 Captain Humphreys and Lieutenant Abbott, of the corps of Topographical Engineers, submitted to the proper bureau of the War Department, a report based on actual surveys and investigations, upon the physics and hydraulics of the Mississippi River, which they were directed to make by Congress. In speaking on the subject of the changes in the river, they say: 'These changes have been constantly going on since the settlement of the country, but the old maps and records are so defective, that it is impossible to determine much about those which occurred prior to 1800.' In the face of this report, authorized by the government, and prepared with great learning and industry, how can we allow the books and maps published prior to this century, to have any weight in the decision of this controversy?

Without pursuing the investigation further, on full consideration of all the evidence in the case, we are satisfied the State of Missouri has no just claim to the possession of Wolf Island.

DISMISSED.


text: Talk:Missouri v. Kentucky/Opinion of the Court


text:
The Montello

APPEAL from the Circuit Court for the District of Wisconsin.

This case was heard on the libel of information, as amended, filed by the United States against the steamer Montello, and the exception to it taken by the claimants. The object of the proceeding was to recover two penalties alleged to have been forfeited to the United States; one by the neglect of the owners or captain of the vessel to procure her enrolment and license whilst she was engaged in navigating Fox River, in the State of Wisconsin, between Oshkosh and Portage City, and in transporting passengers and merchandise between those places; and the other, by their failure to put upon the boilers of the steamer an additional safety-valve prescribed by the board of supervising inspectors, and to provide a good and reliable water-gauge for the boilers.

For the first penalty claimed the libel alleged in its first article in substance, that the owners of the vessel, which was propeled in whole or part by steam, and was of twenty tons burden and upwards, on the 1st of October, 1867, transported in her, passengers and merchandise on the bays, rivers, and other navigable waters of the United States; and that, in carrying passengers, they navigated Fox River, in the State of Wisconsin, between the ports of Oshkosh and Portage City, and that prior to that period they were engaged in transporting between those places merchandise consisting of the products of Wisconsin, which were destined for use and consumption in other States of the Union and in foreign countries, and also in transporting merchandise consisting of the products of other States, brought from those States to Wisconsin, and destined to different places within her limits, without having the steamer enrolled and licensed, as required by the act of Congress of July 7th, 1838, and the amendatory act of August 30th, 1852.

For the second penalty claimed the libel alleged in its second article that an additional safety-valve, of such dimensions and arrangement as had been prescribed by the board of supervising inspectors, had not been placed upon the boilers of the steamer as required by law, and that a good and reliable water-gauge had not been provided for the boilers.

The act of July 7th, 1838, above referred to, provides, in its second section, that it shall not be lawful for the owner, master, or captain of any vessel, propelled in whole or in part by steam, to transport any merchandise or passengers upon 'the bays, lakes, rivers, or other navigable waters of the United States,' after the 1st of October of that year, without having first obtained from the proper officer a license under existing laws; that for every violation of this enactment the owner or owners of the vessel shall forfeit and pay to the United States the sum of five hundred dollars; and that for this sum the vessel engaged shall be liable, and may be seized and proceeded against summarily by libel in the District Court of the United States.

The act of August 30, 1852, which is amendatory of the act of July 7th, 1838, provides for the inspection of vessels propelled in whole or in part by steam and carrying passengers, and the delivery to the collector of the district of a certificate of such inspection, before a license, register, or enrolment, under either of the acts, can be granted, and declares that if any vessel of this kind is navigated with passengers on board, without complying with the terms of the act, the owners and the vessel shall be subject to the penalties prescribed by the second section of the act of 1838.

The act requires, among other things, that the supervising inspectors, appointed under its provisions, shall satisfy themselves that the safety-valves of the boilers on the steamers are of suitable dimensions, sufficient in number, well arranged and in good working order, and that there is a suitable number of gauge-cocks properly inserted, and a suitable water-gauge and steam-gauge indicating the height of the water and the pressure of the steam, before giving their certificate to the collector.

The exception of the claimants to the libel was, that the court had no jurisdiction of the matters contained in the articles, on the ground that they were not matters of admiralty and maritime jurisdiction, in this, that the steamer Montello was employed wholly on the inland waters of the State of Wisconsin at the time of the seizure and previously, and was not engaged in the coasting trade, or in foreign commerce, or in commerce between the States.

The District Court sustained the exception, and dismissed the libel. The Circuit Court affirmed the decision, and the United States brought the case here on appeal.

Mr. Akerman, Attorney-General, for the United States, cited the case of The Daniel Ball. No one appeared for the claimants in this court.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

title: The Montello


text: Talk:The Montello

title: Talk:The Montello