text:
Little v. Hall

THIS was an appeal from the circuit court of the United States, for the northern district of New York.

The case is stated in the opinion of the court.

It was argued by Mr. Seward, for the plaintiffs in error, and Mr. Haven, for the defendants.

Mr. Seward made the following points:--

1. Comstock, by accepting the office of state reporter, and acting under it, and by uniting with the secretary of state and comptroller in the contract with the appellants of April 20, 1850, must be deemed to have accepted the terms and conditions of the act of April 11, 1848, and of April 9, 1850. And those statutes operated, by reason of such acquiescence on his part, to vest in the State of New York, all the interest and right which he might have, as author, in any reports of decisions of the court of appeals, which should be prepared by him as reporter; and the State became the absolute owner thereof.

2. By the contract made by the state reporter, the secretary of state, and the comptroller, on behalf of the State, with the appellants, the interest of the State in all matter constituting the reports to be made by Comstock, as reporter, was equitably and legally vested in the appellants, for the purpose of being published exclusively by them during the term specified in the contract.

3. The appellants, by the operation of the contract, and of the laws of the State in pursuance of which it was made, became the legal assignees and proprietors of the manuscript matter prepared by Comstock as state reporter, under the ninth section of the law of congress of 1831, which right was exclusive of all others during the continuance of the contract. The exclusive copyright was the exclusive right to publish the manuscripts.

This proposition is a legal deduction from the two former propositions already established.

4. Volume 4 of Comstock's Reports, was covered by the contract, as to all the matter that it contained, and so was subject to the exclusive right of the appellants to the manuscript matter prepared by the reporter, and incorporated into the work.

The expiration of Comstock's term of office did not alter his liability in this respect. True, he could not be required to prepare the decisions for publication, and to furnish notes and references; but,

1. If he did not do this, he must hold the materials subject to the order of his successor, who must do the labor; or, if he did use them, and prepare them for publication with notes and references, then the materials and additional matter, being incorporated together, and so prepared according to the contract, must pass, under the contract, to the appellants.

Had Comstock died during his term of office, the trust and bailment would have remained attached to the materials in the hands of his executors. A trust would have resulted to the State a right of action, legal or equitable, to the appellants, when the purpose for which he received the materials failed to take effect. (2 Fonblanque, 118.)

It is wholly unimportant that Comstock might, either while in office, or after going out of office, have acquired similar materials by other means.

1st. As he would in that case have used similar materials, as the basis for labor to be performed for the appellants under the contract, and as he had received an equivalent in advance for that labor, either the labor must be done for their benefit or not at all.

2d. But in point of fact, he received these specified materials as a trustee and bailee, and he must be held to the obligations they created.

These are principles so familiar, and they so fully pervade every branch of jurisprudence, equally the law and equity, that references to authorities would seem superfluous. But for convenience, refer to Hill on Trustees, 172, 282, 509, 2 Vesey, 498; Taylor v. Plumer, 3 Maule & Selwyn, 562, 567, 574; Adair v. Shew, 1 Schoale & Lefroy, 262; Story on Equity Jurisprudence, § 533, &c., 1,257, 1,258, 1,261; Kane v. Bloodgood, 7 Johnson's Ch. Reports. 110, where it is held that every deposit is a trust, and that every person who receives money to be paid to another, or to be applied to a particular purpose to which he does not apply it, is a trustee. So the principle adopted in the case of a tenant, that he cannot deny the title of his landlord so long as he retains possession, but must surrender the premises, and place himself in hostility to his landlord, before he can set up a title in himself, is founded on the very contract of tenancy itself. (Nelson, Ch. J.; Phelan and wife v. Kelly, 25 Wend. 392. See also Massey v. Davis, 2 Vesey, Jr., 318, 320; East India Co. v. Hinchman, 1 Vesey, Jr., 289.)

5. It is in evidence, that Mr. Comstock has commenced, and still has pending, an action to establish his right to the office of state reporter, at this time. This claim of continuance in office is utterly inconsistent with the position of individual and private right, action, and interest, in regard to volume 4, set up by the respondents, and is conclusive against him and them, that volume 4 was prepared by him as state reporter, and subject to the operation of the contract, Exhibit A.-(Lord Chancellor, in 2 Vesey, Jr., 696; 1 Swanston, Note (a) to p. 381; Comyn's Digest, Election, C. I.)

Comstock has made his election to claim and hold the office of state reporter, with full knowledge of his rights, and he is bound by it.

6. There is no proof of any acquiescence by the appellants in the claim of Mr. Comstock, by which he was misled or induced to incur expense.

Mr. Haven, for defendants in error, made the following points:--

1. There is no question of copyright or of property in manuscripts involved in the case, and the plaintiffs' claim does not fall within the provisions of any of the acts of congress, and this is fatal to the plaintiffs' case.

I. The laws of the United States afford remedies, and the federal courts have jurisdiction only in favor of the 'author' of a book or 'his legal assigns,' or the 'author or legal proprietor' of a manuscript. Of course, a book or manuscript belongs primarily under the copyright laws to the author. The plaintiffs not being the 'author,' must therefore deduce from him a 'legal' right and title to the book or manuscript, or else they cannot sustain their bill in the federal courts. If they can allege any other rights which have been violated, these must be asserted in the state courts, and on some general principle of equity or of law. See the opinion of the circuit court, which proceeds very much on this ground. See also laws of the United States, 2 sess. 21 Cong. 1831, p. 11, §§ 1, 9; 2 Kent, Comm. (6th ed.) 379. Clark v. Price, 2 Wilson, Ch. R. 157. Jollie v. Jaques, 1 Blatch. 618, 627.

II. But the strongest manner in which the plaintiffs can state their case is to allege that the notes, references, and manuscript matter composed by Mr. Comstock, and contained in the book in question, fall within the purview of their contract for the publication of the State Reports to be composed by the state reporter. We say the strongest, because this assumes the precise fact controverted, to wit, that Mr. Comstock's labors upon this book were official and not private. It is not pretended of course that the plaintiffs, under their contract with the state officers, could have any interest in the labors of Mr. C., or any one else as a private reporter.

III. Assuming then this, the best statement of the plaintiffs' case, to be true, it only follows that the contract with the plaintiffs has been violated, affording perhaps a just ground of action or claim against the State of New York, or its agents who made the contract. But it by no means follows that the plaintiffs have the 'legal' title to, or are 'the legal proprietors' of the book or of the manuscript in question. At the time of the contract, no part of the work was composed. The agreement, therefore, was simply executory, and could vest no title or actual property in that which had no existence.

2. But the case is not such as has been thus far assumed. In fact, Mr. Comstock was not in the service of the State. He was a private citizen, and another person held the office of state reporter, and received the salary annexed thereto. In fact, also, Mr. Comstock, at no period of his labors on this book, pretended to be acting for the State, or the plaintiffs. Being a private citizen, in fact, before he began, he distinctly announced that he should not prepare the work for the State or the plaintiffs, but should do it in his private character, and would sell it as his own property. After he began, he employed the stereotype printer on his private account. Still later, he invited proposals to buy the work as his own, and, among others, invited the plaintiffs; and finally he sold it as his own, thus maintaining from the beginning to the end an open consistency of conduct, a course of conduct at the time called in question by no one, not even the plaintiffs, who now seek to appropriate the result of his labors as their property.

3. What has been thus far said, it is believed, shows that the plaintiffs, in the most favorable views which can be taken of their case, have no such title as will sustain their bill, nor indeed any title at all, whatever may be said of the defendants, their position, and that of their vendor, Mr. Comstock. We shall now speak of them and of him, especially of his position and relations to the subject, placing the facts and circumstances of the case in the light in which we regard them, and demonstrating, if we can, that, upon every principle of law and justice, the copyright of the book in question is with the defendants.

4. The complainants are equitably estopped from claiming the relief asked for in their bill.

Mr. Justice McLEAN delivered the opinion of the court.

title: Little v. Hall


text: Talk:Little v. Hall

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

title: Talk:Little v. Hall


text:
Little v. Hall/Opinion of the Court

This is an appeal from the decree of the circuit court of the United States for the northern district of New York.

A want of jurisdiction to sustain this appeal was alleged by counsel, as it does not appear from the record that the amount in controversy exceeds the sum of two thousand dollars; but this objection was obviated by an affidavit, which stated that the amount claimed by the plaintiffs exceeds that sum.

This bill was filed under the copyright act, to enjoin the defendants from publishing and selling the fourth volume of Comstock's Reports.

The plaintiffs, who are publishers and booksellers at Albany, New York, represent that, on the 20th of April, 1850, they entered into an agreement with Washington Hunt, comptroller, Christopher Morgan, secretary, and George F. Comstock, reporter, of the State of New York, as required by statute, that they should have the publication, for the term of five years, of the decisions of the court of appeals, and the exclusive benefit of the copyright, to be taken out in behalf of the State, of the notes and references, and other matter furnished by the reporter, connected with said decisions; and that instrument was declared to be an assignment and transfer of the copyright of the matter so published, which should consist of volumes of not less than five hundred pages each.

On the 27th of December, 1847, George F. Comstock was appointed state reporter for three years, and until his successor was appointed and qualified, at a salary of $2,000 per annum. He was to have, under the law, no interest in the reports, but the copyright of his notes, references, and abstracts of arguments, was to be taken in the name of the secretary of state, for the benefit of the people of New York. The law forbade the reporter and all other persons from acquiring a copyright in the reports, but declared they might be republished by any person.

Mr. Comstock's term of office expired on the 27th of December, 1850, and his successor, Henry R. Selden, Esq., was appointed to succeed him on the 17th of January, 1851. Mr. Comstock questioned the validity of his appointment, and the matter was referred to the judges of the court of appeals, then in session at Albany, who decided that Mr. Selden was duly appointed. He took the oath on the 21st of January, 1851, and immediately entered upon the duties of his office.

Mr. Comstock published three volumes of his reports; and having in his hands, at the expiration of his office, opinions of the court to make half or more of another volume, on the suggestion of the judges, and with the consent of Mr. Selden, the opinions of the January term were delivered to him, that he might complete his fourth volume. At the time of this arrangement, he had made no preparation, by notes, &c., for this volume, and did not commence the work until some months afterwards.

After he had made considereable advance in the preparation of this volume, he invited proposals for the purchase of the copy-right; and although the plaintiffs, in conversation with him, said they would give as much as any other persons; yet they made no proposal, as they were apprehensive it might affect the contract for the publication of the reports, as above stated. The defendants purchased the copyright, for which they paid $2,500. At a large expense, they prepared stereotypes for the work, and printed it.

The plaintiffs, so soon as the volume was published, commenced a republication of it, and filed this bill to enjoin the defendants from selling their edition. Previous to the publication of the third volume of Comstock's Reports, the secretary of state had the copyright of the head-notes, references, &c., entered by the clerk of the district court of the United States, for the benefit of the State; and the complainants had a similar entry made, to secure the copyright to the State, of the fourth volume. This was not done by the secretary of state, as the law directed, and it seems it was not sanctioned by him, as he was doubtful whether he had the power to do so.

The 9th section of the copyright act of the 3d of February, 1831, provides 'that any one who shall print or publish any manuscript whatever without the consent of the author or legal proprietor first obtained as aforesaid,' 'shall be liable to suffer and pay to the author or proprietor all damages occasioned by such injury,' &c.

At common law, an author has a right to his unpublished manuscripts the same as to any other property he may possess, and this statute gives him a remedy by injunction to protect this right.

A formal transfer of a copyright by the supplementary act of the 30th of June, 1834, is required to be proved and recorded as deeds for the conveyance of land, and such record operates as notice.

After the expiration of his official term, Comstock did not and could not act as reporter. His successor, having been appointed and qualified, discharged the duties of the office and received the salary. As many of the opinions of the court were in the hands of Comstock when his office expired, it might have been made a question whether he could not publish the fourth volume as reporter. This would have given to the State a continuous report of the decisions of the court of appeals, as the law contemplated, with the copyright of the notes, & c., secured for the benefit of the people of the State. If the opinions of the court came into his hands during his continuance in office, there would seem to be no impropriety in his publishing them, as filling up the measure of his term.

But it seems a different view was taken by the late reporter. As his term of office had expired, he was unwilling to publish the fourth volume without compensation for his labor. This changed his relations with the plaintiffs, as that contract was made as reporter, and on the supposition that he would be continued in that office. Under that contract, the complainants had the advantage of publishing the reports for the price stipulated, but any one was at liberty to republish them.

The fourth volume was published by Mr. Comstock as an individual, he having secured to himself the copyright. This probably insured to the purchaser of the right the republication of the work for the term of twenty-eight years. Under the agreements made with the plaintiffs, they had only the profit of their contract.

Whether the plaintiffs may not have a remedy on their contract with Mr. Comstock in the local tribunals of the State, is not a question before us. Our only inquiry is, whether any relief can be given by this court under the copyright act. Where a case arises under that act, we have jurisdiction, though both the parties, as in this case, are citizens of the same State. But if the act do not give the remedy sought, we can only take jurisdiction on the ground that the controversy is between citizens of different States.

Were the plaintiffs the legal proprietors of the manuscript from which the fourth volume of Comstock's Reports was published? The plaintiffs rely upon their contract with the comptroller, the secretary of state, and Mr. Comstock, the reporter. In that contract it is said, 'this instrument is declared to be an assignment and transfer of the copyright of the matter so published to the parties of the second part.'

This contract was made with Mr. Comstock as reporter, and the plaintiffs agreed to publish the work in volumes containing five hundred pages each, to have them well bound in calf, the types, paper, and the entire execution, to be equal to Denio's Reports; the work to be done under the superintendence of the reporter; copies to be furnished to certain officers of the State, and the publishers were to keep the volumes for sale at two dollars and fifty cents per copy; and in all things they were bound to comply with the statutes of the State.

Comstock could not have published the work as reporter without the consent of the court of appeals, and also the secretary of state, who was required to secure the copyright to the State; and for his labor in preparing the notes, references, &c., and superintending the printing, he could have received no compensation.

Without saying what effect might have been given to the contract had the relation of the parties remained unchanged, we are unable to say, as the case now stands before us, that the plaintiffs were the legal owners of the manuscript within the copyright law. The contract was made by Comstock as reporter, whose duties were regulated by law; and the obligations of the complainants as publishers were embodied in the contract, and were incompatible with any publication on private account.

The entire labor of the work was performed by Comstock, not as reporter, but on his own account. It is, we think, not a case for a specific execution of the contract; and, in effect, that is the object of the bill. This result has not been brought about by the acts of Comstock. He may have been imprudent in extending his contract unconditionally beyond the term of his office. But in doing so he has an apology, if not an excuse, by being associated in making the contract with two high functionaries of the State. Under the changed relation of the parties, the plaintiffs cannot be considered as the legal owners of the manuscript for the purposes of the contract under the copyright law.

Whatever obligation may arise from the contract under the circumstances as against Comstock must be founded on his failure to furnish the manuscripts to the plaintiffs, and of such a case we can take no jurisdiction as between the parties on the record.

The decree of the circuit court is affirmed.

title: Little v. Hall/Opinion of the Court


text: Talk:Little v. Hall/Opinion of the Court


text:
Cooper v. Roberts

THIS case was brought up, by writ of error, from the circuit court of the United States for the district of Michigan.

It is stated in the opinion of the court.

It was argued by Mr. Buel and Mr. Vinton, for the plaintiff in error, and Mr. Truman Smith, for the defendant.

Such of the points only as were included within the decision of the court will be noticed.

The counsel for the plaintiff in error first considered the questions which arose relative to the act of 23d June, 1836, granting school lands to Michigan.

1. Is it simply a law in the ordinary meaning of the term, and, as such, repealable at the will of the law-making power, or does it belong to that class of laws which are legislative compacts?

The counsel contended that it was a compact. 5 Stats. at Large, 59, 60.

2. If it be of the latter class, when did it take effect as a compact, and become obligatory on the parties to it?

It became obligatory on 25th July, 1836, that being the day on which the legislature of Michigan passed the act of acceptance. Revised Code of Michigan for 1846, 748; 2 Wheat. 196; 4 Harrington, 479; 9 Wheat. 469.

3. Does either possess the power to annul or change any of the essential terms of it, without the assent of the other?

Whether the grant of section 16 operated as a present grant, or was only a promise that it should be granted in futuro, makes no difference in the obligation of the United States.

4. Viewed as a compact, what are the rules and principles that govern it? And what are the obligations which the article respecting section 16 imposes on the United States?

The rules and principles which govern it are those which regulate contracts generally. 1 Pet. Cond. R. 453; 1 Tenn. 319; 3 Ohio, 572.

That the government cannot resume its grant, and that a grant is a contract executed, see New Orleans v. De Armas, 9 Pet. 236. There the court say: 'It is a principle applicable to every grant, that it cannot affect pre existing titles.' In Terrett v. Taylor, 9 Cranch, 43, (same case, 2 Pet. Cond. R. 321,) held, that where the legislature had the authority to make a grant of lands, such grant, when made, vests an indefeasible and irrevocable title. And in Fletcher v. Peck, 6 Cranch, 87, Chief Justice Marshall said: 'A grant in its own nature amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right; a party, therefore, is always estopped by his own grant.' Pollard's Lessee v. Hogan, 3 How. 212.

Whether a contract be executed or executory, it is equally binding on the parties to it. Fletcher v. Peck, 2 Pet. Cond. R. 321.

5. What is the meaning and effect of that clause in the article which provides, that where section sixteen has been sold or otherwise disposed of, other lands equivalent thereto and as contiguous as may be, shall be granted to the State?

This was to provide for prior and not subsequent sales. Assuming that the act of 1836 was only a promise, and that the act of March 1, 1847, embraced section sixteen, still, Michigan has the better right to it. But that act did not dispose of the mineral lands without reference to the school reservation.

1. Instead of the mineral lands being reserved by the act in pursuance to an established policy, it was a primary object of that act to put an end to the policy that had theretofore prevailed of reserving mineral lands from sale, and to dispose of them by sale as soon as practicable, and for the best price that could be obtained.

2. By the true interpretation of the second section of the act, section sixteen in every township of the district is expressly reserved from sale; and also such reservations as the President shall deem necessary for public uses, whether the same are mineral lands or not.

3. As the interpretation of the court conflicts with prior and existing legislative grants and obligations, those grants and obligations are entitled to the benefit of every legal presumption and inference in their favor; and such effect ought not to be given to the law, unless the intent to produce this conflict be expressed in manifest and undoubted language.

4. If the act had, in general terms, directed the sale of all the lands in the district, but was silent as to the lands previously dedicated and granted to schools, it would not have the effect to divert them from this special use.

Mr. Smith, for the defendants in error, contended:--

1. That the article in the act of 1836 was conceived in words of the future tense; and that the plaintiff below could not make out a title without a patent. 13 Pet. 516; 15 How. 433; 1 Op. Att. Gen. 273; 12 How. 76; 14 ibid. 274.

But if we assume that the first article of this compact operated to vest in the State of Michigan the fee, or a good and perfect title to these lands, then the next question is, whether that title has, through Williams, been transferred to the plaintiff? To answer which we must, as already mentioned, turn our attention both to the laws of the United States and of the State of Michigan.

Michigan had no power to sell this section without the assent of congress. The income of each section is to be applied to the support of schools in the township where it is situated, and the State has no power, without the consent of congress, to sell it for the purpose of creating a general fund. 14 How. 274.

This is shown by the numerous acts of congress granting permission to sell. 4 Stats. at Large, 237, 298; 5 ibid. 600; 10 ibid. 6.

The United States, in granting these lands, are the founders of a charity; 9 Cranch, 292; and their assent is necessary for a sale. 4 Wheat. 518.

But, assuming that the State of Michigan has the entire control of the lands, and can sell them without consulting either the United States or the inhabitants of the townships where situated; then the question arises, whether these lands were sold in conformity with the laws of the State?

The argument upon this point is omitted.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Cooper v. Roberts


text: Talk:Cooper v. Roberts

title: Talk:Cooper v. Roberts


text:
Cooper v. Roberts/Opinion of the Court

The plaintiff sued in ejectment, to recover a portion of section No. 16, in township No. 50 north, of range 39 west, lying within the mineral district south of Lake Superior, in Michigan.

His case affirms that this section had been appropriated by the United States to the State of Michigan for the use of schools, in their compact, by which that State became a member of the Union; that the governor of Michigan issued, in November, 1851, to Alfred Williams, a patent, evincing a sale of that section under the laws of Michigan, in February, 1851; that he has a conveyance from the patentee, and that the defendant is a tenant in possession, withholding the locus in quo from him. The defendant, to support his issue, relies upon a license given in 1844, by the mineral agent of the United States for that district, empowering the donee to examine and dig for lead, and other ores, for the term of one year, and within that term to mark out and define a specific tract of land, not to exceed three miles square, for mining purposes; and, if he should fulfil this and other conditions, he was to become entitled to a lease for three years, with a privilege of one or two renewals, under restrictions. The secretary of war, in September, 1845, executed a lease for a tract three miles square, which the donee of the license had selected, and which included the locus in quo, and stipulated to renew it, if congress shall not have passed a law 'directing the sale, or other disposition, of these lands,' and if the lessee shall have complied with all the conditions of the present lease, and tendered a bond for the fulfilment of the conditions of the new lease, as described in the act. This lease came to the Minnesota Mining Company by assignment, and that company in 1847, and from thence till 1851, held possession of the land described in the declaration, erected valuable improvements, and made successful explorations for copper upon it. In November, 1850, the company applied to the proper officers of the land-office to enter the land comprised in the lease, and from thence, till the date of their patent in 1852, the right of the company to secure the locus in quo by entry was in dispute in the land-office of the United States. In September, 1851, the secretary of the interior determined adversely to the claim of the company, and in favor of the claim of Michigan; and in 1852, upon proofs that the company had complied with the lease, while he reaffirmed his conclusions in favor of Michigan, allowed the entry of the company, but with a reservation of the rights of Michigan. The section No. 16, aforesaid, was surveyed in the summer of 1847, and the portion in controversy, in the report of the geological survey of the district, was returned to the land-office as containing mines of copper. There was no application to the department of public lands to renew the lease held by the company, for the reason (it is said) that the system of letting mineral lands of this kind had been abandoned, upon the doubts expressed by the attorney-general, in 1846, of the legality of such leases. Upon the trial of the cause in the circuit court, the plaintiff moved the court for instructions to the jury, that, upon the facts, he was entitled to a verdict, and that the defendant's patent was invalid. The court refused the prayer, and told the jury, 'that by the act of congress of 1st March, 1847, all the mining lands within the district, reported, were taken out of the operation of the general law for the disposal of the public lands, in pursuance of an established policy to reserve from the ordinary mode of disposing of public lands those that contained valuable salt springs, lead mines, &c., that that they might be leased or disposed of to purchasers having full knowledge of their value, by reason of the salt springs or mineral ores they contained, at their full value, for the public benefit. That, by the above act, all the mineral lands reported by the geologist within the district, in pursuance of this settled policy of the government, were appropriated and disposed of without reference to the school reservation, the appropriation of the land being made before the surveys were executed, and before the locality of section 16 could be known. And as it appears from the report of the geologist that the land in controversy contains valuable minerals, and was within the boundaries of the lease under which the Minnesota Company claim, and that they had made large expenditures thereon for mining, were entitled to the right of purchase, as provided in the third section of the above law; and having paid for the same, it was a disposition of the land which congress had a right to make, and was an exercise of power within the grant. That the setting apart of another section adjacent will satisfy the grant to the State.'

Our first inquiry will be into the nature of the right of the State of Michigan to section No. 16 in the townships of that State, and the effect of the discovery of minerals in such a section upon that right. The practice of setting apart section No. 16 of every township of public lands, for the maintenance of public schools, is traceable to the ordinance of 1785, being the first enactment for the disposal by sale of the public lands in the western territory. The appropriation of public lands for that object became a fundamental principle, by the ordinance of 1787, which settled terms of compact between the people and States of the northwestern territory, and the original States, unalterable except by consent. One of the articles affirmed that 'religion, morality, and knowledge, being necessary for good government and the happiness of mankind;' and ordained that 'schools, and the means of education, should be forever encouraged.' This principle was extended, first, by congressional enactment, (1 Stats. at Large, 550, § 6,) and afterwards, in 1802, by compact between the United States and Georgia to the southwestern territory. The earliest development of this article, in practical legislation, is to be found in the organization of the State of Ohio, and the adjustment of its civil polity, according to the ordinance, preparatory to its admission to the Union. Proposals were made to the inhabitants of the incipient State to become a sovereign community, and to accept certain articles as the conditions of union, which, being accepted, were to become obligatory upon the United States. The first of these articles is, 'that the section No. 16 in every township, and where such section has been sold, granted, or disposed of, other lands equivalent thereto and most contiguous to the same, shall be granted to the inhabitants of such township, for the use of schools.'

A portion of this territory had been encumbered in the articles of cession by the States, and another portion by congress for the fulfilment of public obligations, prior to the ordinance of 1785, and without reference to the school reservations; therefore, uniformity in the appropriation of the section No. 16 was partially defeated. The southwestern territory was similarly burdened in the compact of cession by Georgia, with the fulfilment of antecedent obligations, and similar paramount obligations have arisen in treaties with the Indian tribes who inhabited it. The rights of private property vested in the inhabitants, ceded with Louisiana and Florida, and guaranteed to them in the treaties of cession, created an obstruction to the same policy within them. But the constancy with which the United States have adhered to the policy in the various compacts with the people of the newly-formed States, and the care which congress has manifested to prevent the accumulation of prior obligations which might interrupt it, fully display their estimate of its value and importance. There is, obviously, a definite purpose declared to consecrate the same central section of every township of every State which might be added to the federal system, to the promotion 'of good government and the happiness of mankind,' by the spread of 'religion, morality, and knowledge,' and thus, by a uniformity of local association, to plant in the heart of every community the same sentiments of grateful reverence for the wisdom, forecast, and magnanimous statesmanship of those who framed the institutions for these new States, before the constitution for the old had yet been modelled. Has the discovery of minerals of value upon this section been deemed a sufficient cause for its withdrawal from the operation of this policy, and the compacts which develop it?

The ordinance of 1785 dedicated the section No. 16 for the maintenance of public schools, and in each sale of the public lands there was by the same ordinance a reservation of one-third part of all gold, silver, lead, and copper mines within the township or lot sold. No reservations were afterwards made of gold, silver, or copper mines until the acts of March, 1847. By the act of March 26, 1804, and the act of March, 1807, every 'grant of a salt spring or a lead-mine thereafter to be made, which had been discovered previously to the purchase from the United States, was to be considered as null and void.' (2 Stats. at Large, 279, § 6; 449, § 6.) These statutes indicate a policy to withdraw from sale lands containing these minerals. But the compacts have been made without such a reservation, nor has the usage of the land-office interpolated such an exception to the general grant of the section No. 16 for the use of schools.

The grant of the section No. 16 for the use of schools can be executed without violating the spirit of the legislation upon salt springs or lead mines, and, as we have seen, no statute prior to the admission of Michigan to the Union contains an appropriation or reservation of other mineral lands. The State of Michigan was admitted to the Union, with the unalterable condition 'that every section No. 16, in every township of the public lands, and where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the State for the use of schools.' We agree, that until the survey of the township and the designation of the specific section, the right of the State rests in compact-binding, it is true, the public faith, and dependent for execution upon the political authorities. Courts of justice have no authority to mark out and define the land which shall be subject to the grant. But when the political authorities have performed this duty, the compact has an object, upon which it can attach, and if there is no legal impediment the title of the State becomes a legal title. The jus ad rem by the performance of that executive act becomes a jus in re, judicial in its nature, and under the cognizance and protection of the judicial in its nature, and as well as the others. Gaines v. Nicholson, 9 How. 356.

The question now arises whether the act of March 1, 1847, created a legal impediment to the operation of this principle, either by the reservation of the land for public uses, or by its appropriation to superior claims. In March, 1847, congress established a land district in this region for the disposal of the public lands. It directed a geological survey for the ascertainment of those containing valuable ores, whether of lead or copper, and a report to the land-office. It provided for the advertisement and sale of such lands, departing in a measure from that usual mode, as to the length of the notice and the amount of price; and in reference to the remainder of the lands, it applied the usual regulations. To the section containing these directions, (9 Stats. at Large, 146, § 2,) there is added an exception from such sales, section No. 16, 'for the use of schools, and such reservations as the President shall deem necessary for public uses.' It has been argued, that this exception is only applicable to the lands not contained in the geological report, and that the mineral lands 'were appropriated and disposed of without reference to the school reservation by this section of the act.' But it does no violence to the language to embrace within the exception all the sales, for which the section provides, and we cannot suppose that congress could be tempted, with the hope of a small additional price, which is imposed upon the purchasers of the mineral lands, to raise a question upon its compact with Michigan, or to disturb its ancient and honored policy. We think the interpretation which claims this as an exception in favor of Michigan, is to be preferred to that which excludes her from the mineral lands under this compact. And this conclusion is strengthened by the fact that the power of the President to make useful public reservations is connected in the exception with the school reservations. There could be no reason for limiting the power of the President to a single class of the public lands, and to exclude him from another in the same district. We conclude that this act does not withdraw the mineral lands from the compact with Michigan.

Did the execution of the lease by the secretary of war, in 1845, before the survey of the lands, dispose of these lands so as to defeat the claim of the State? The Minnestoa Mining Company, at the date of the act of March 1, 1847, held the unexpired lease by assignment, and continued to perform its conditions until their patent was issued. The 3d section of that act authorized the persons in possession under such a lease, who had fulfilled it conditions, to enter in one tract all the lands included in it, at a diminished price, 'during the continuance of the lease.' The 4th section directed the sale of the mineral lands contained in the report, but with a proviso, that none of the lands contained in any outstanding lease, whose conditions had been fulfilled, should be sold till the expiration of the lease, either 'by efflux of time, voluntary surrender, or other legal extinguishment.' The act of congress of September, 1850, (9 Stats. at Large, 472,) abrogated such of the clauses of the act of 1847, which distinguished the mineral from other public lands, and placed them alike, under the ordinary system for the disposal of the public domain, but reserved to lessees and occupants the privileges conferred by the act of 1847. From that time, therefore, the argument 'that the mining lands within the district were taken out of the general law for the disposal of the public lands, by the act of March, 1847,' lost all its cogency, and the rights of the Minnesota Company depended entirely upon the validity of the lease and the protection accorded to the lessee. The lease expired by 'efflux of time,' in September, 1848. There was no renewal of the lease, for the double reason, that its original validity was doubted by the highest executive authority, and those doubts were submitted to by the lessee, and because congress had passed the law for the disposal of the mineral lands, which determined the covenant for renewal, by the terms of the lease itself.

Hence, had there been a legal impediment to the execution of the compact with Michigan, erected either by the second section of the act of 1847, which separated for some purposes the mineral from other public lands, or by the privileges granted to lessees or their assigns, in the 3d section of that act, it was removed by the repealing clause of the act of 1850, and the non-compliance with the conditions on which the privileges depended. The section No. 16 was, at that date, disencumbered, and subject to the operation of the compact, whatever might have been its pre existing state.

That compact had not been fulfilled by an assignment to the State 'of equivalent lands, contiguous as may be,' under the act of May 20, 1826. (4 Stats. at Large, 179.) Shortly after the passage of the act of 1850, we find Michigan asserting her claim to this section, advertising it for sale, and selling it to the vendor of the plaintiff. We also find the officers of the land-office of the United States denying the right of the Minnesota Mining Company to enter the land, and admitting the superior title of the State of Michigan, and finally reserving those rights in the patent issued to the company. We entirely concur with these officers in their decision on the subject of contest, for the reasons we have given. We think that the jury should have been instructed, that the section No. 16 was vested in the State of Michigan at the date of the entry by the Minnesota Mining Company, and that the company did not acquire title by its patent.

The defendant insists that the title of the plaintiff is invalid, for the reason that the State of Michigan was not empowered by congress to sell the school reservations. Where such grants have been made to the State, or to the inhabitants of the township for the use of schools, it has been usual for congress to authorize the sale of the lands, if the State should desire it. (4 Stats. at Large, 138, 237, 298; 5 Ib. 600.) But this consent was not, perhaps, incessary, and the application for it is but evidence of the strong desire of the the state authorities to act in good faith, and to keep within the pale of the law. 4 Ala. R. 622.

The trusts created by these compacts relate to a subject certainly of universal interest, but of municipal concern, over which the power of the State is plenary and exclusive. In the present instance, the grant is to the State directly, without limitation of its power, though there is a sacred obligation imposed on its public faith. We think it was competent to Michigan to sell the school reservations without the consent of congress.

The defendant further objects, that the officers of the State violated the statutes of Michigan in selling these lands, after they were known, or might have been known, to contain minerals. Without a nice inquiry into these statutes, to ascertain whether they reserve such lands from sale, or into the disputed fact whether they were known, or might have been known, to contain minerals, we are of the opinion that the defendant is not in a condition to raise the question on this issue. The officers of the State of Michigan, embracing the chief magistrate of the State, and who have the charge and superintendence of this property, certify this sale to have been made pursuant to law, and have clothed the purchaser with the most solemn evidence of title. The defendant does not claim in privity with Michigan, but holds an adverse right, and is a trespasser upon the land, to which her title is attached.

Michigan has not complained of the sale, and retains, so far as the case shows, the price paid for it. Under these circumstances, we must regard the patent as conclusive of the fact of a valid and regular sale on this issue.

Upon the whole record, we think the jury should have been instructed, that if they found the facts thus given in evidence to be true, the plaintiff was entitled to recover the premises in question.

Judgment reversed; cause remanded-a venire to issue.

title: Cooper v. Roberts/Opinion of the Court


text: Talk:Cooper v. Roberts/Opinion of the Court


text:
Schooner Freeman v. Buckingham

THIS was an appeal from the circuit court of the United States for the northern district of New York.

The case is stated in the opinion of the court. would be estopped, in favor of a bon a fide for the appellant, and Mr. Ganson, for the appellee.

Mr. Haven made the following points:--

1. Hickox, the claimant, was the owner of the schooner Freeman. He agreed to sell her to John Holmes for $4,500, payable in five instalments, at various times from June, 1851, to December, 1853. And on such payments being made, and other conditions complied with, he agreed to give John Holmes a good and sufficient bill of sale of her, &c. By this agreement, the property of the claimant in the schooner was not devested. Hilliard on Sales, title 'Conditional Sales,' pp. 18-23; Barrett v. Pritchard, 2 Pick. 512; Ayer v. Bartlett, 9 Pick. 156; West v. Bolton, 4 Verm. Rep. 558; Herring v. Willard, 2 Sandf. Sup. Ct. Rep. 418.

Mem.-Kent, in his Commentaries, (vol. ii. p. 497,) says: 'When there is a condition precedent attached to a contract of sale and delivery, the property does not vest in the vendee on delivery, until the performance of the condition, or the seller waives it; and the right continues in the vendor, even against the creditors of the vendee.'

He cites Strong v. Taylor, 2 Hill, 326, which is in point, and was decided by Justice Nelson.

title: Schooner Freeman v. Buckingham


text: Talk:Schooner Freeman v. Buckingham

title: Talk:Schooner Freeman v. Buckingham


text:
Schooner Freeman v. Buckingham/Opinion of the Court

3. If Hickox, the owner, had directed the master to sign the bills of lading, or given him authority to do so, without having the flour on board, the schooner would have been bound, or the owner would have been estopped from denying the shipment had been made; but in a case where there is no fraud, and the master has only general authority as such, he cannot sign a bill of lading for goods not delivered so as to charge the owner or vessel, even when the bill of lading has been assigned or indorsed for value. Grant and others v. Norway and others, 70 Eng. Com. Law Rep. 664, fully in point.

4. The signatures of Ramsdell, the master, to the bills of lading, were procured by S. Holmes by fruad, by false representations, and by substitution of false papers, amounting to a felony, or were forged. And as between Holmes and Hickox, the bills were void and of no validity. This being so, the libellants, if they had been indorsees of the bills for value, would take nothing under them, as they make title to the pretended flour only by showing Holmes shipped it; and bills of lading procured by a felony, by fraud, or forgery, are no evidence of that fact, nor do they estop any one. And this case must stand as though S. Holmes forged the bills. King v. Richards, 6 Whart. Penn. Rep. 418; Berkley v. Wattling, &c., 7 Ad. & El. 29, and 34 Eng. Com. Law Rep. 22; Bates v. Todd, 1 Moody & Robinson, 106; Angell on Carriers, §§ 231-337; Abbott on Shipping, 324, 325, original paging; Bates v. Stanton, 1 Duer Sup. Ct. Rep. 79, and cases cited.

5. But the pretended flour was consigned to the libellants as factors of S. Holmes & Co., and not as owners. By the bills, they were not interested in it; the consignment was 'for account of S. Holmes & Co.' This would have given the libellants no right or title to the flour had it been on board the schooner, and Holmes could have sold it or given a good title to a stranger at any time before it actually reached the libellants. Patten v. Thompson, 5 Maule & Selw. 350; Russell on Factors and Brokers, 202, 203, republished in Law Library, vol. 48; Grove v. Brien, 8 How. 429, 438; Conrad v. Atlantic Ins. Co. 1 Pet. 345, 386; Kinloch v. Craig, 3 Term Rep. 119.

Mr. Ganson made the following points:--

1. The appellees were the consignees of the property, acknowledged in the contracts of affreightment to have been shipped on the schooner, and, as such, had advanced money upon the faith of the shipment therein declared, and the contract therein contained.

2. By such consignment and advance, the appellees acquired a property in the flour mentioned and referred to in those contracts. The delivery of the bills of lading to the appellees, by which the flour was to be delivered to them, and the advancement of money upon the faith thereof, was equivalent to an actual delivery of the property to them, as a security for the advance. Gibson v. Stevens, 8 How. 384; Conard v. Atlantic Insurance Co. 1 Pet. 445; Bank of Rochester v. Jones, 4 Comstock, 497.

3. It is a well-established rule of the maritime law of this country, that the ship is bound to the merchandise, and the wellestablished practice of our admiralty courts to entertain proceedings in rem for the non-performance of contracts of affreightment. The Rebecca, Ware's Rep. 188; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344; The Volunteer, 1 Sumn. R. 551.

4. If the two contracts in question were made under such circumstances as to bind the vessel, it must answer for their non-performance. The question then arises, were they so made?

5. Had the master of The Freeman any authority to sign these bills of lading? He was acting under the employment of Sylvanus Holmes. The vessel was in the possession of Holmes. He was running her at his own expense and risk, and for his own benefit. The appellant had not any interest in her earnings, and was not liable for her debts. Sylvanus Holmes, therefore, and not the appellant, was the owner of the vessel, within the signification of that term as used by the maritime law, with reference to determining who is responsible personally for the master's contracts. Reynolds v. Toppan, 15 Mass. 370; Hallet v. Columbian Insurance Co. 8 John. 272; The Phebe, Ware's R. 263; Cutler v. Windsor, 6 Pick. 335.

A person in possession of a vessel, under a conditional contract of purchase, is the owner within the rule referred to. Leonard v. Huntington, 15 John. 298; Hinton v. Hogeboon, 7 John. 308; Thorn v. Hicks, 7 Cowen, 797.

It is upon this rule that the courts hold that a mortgagee out of possession is not liable for supplies; but, if in possession, is liable. McIntyre v. Scott, 8 John. 159; Phillips v. Ledley, 1 W. C. C. R. 226; Miln v. Spinola, 4 Hill, 177; Champlin v. Butler, 18 John. 169.

Hence, also, a person running a vessel under a charter-party, is liable for its debts, and the general owner is not; and the vessel is liable for the contracts of the charterer's master. Drinkwater v. The Brig Spartan, Ware's R. 149; The Phebe, Ib. 263.

If, under the contract for a conditional sale, there be a forfeiture, and the property reverts, and in case of a charter-party, at its expiration, the vessel goes back to the general owner, subject to the admiralty liens created in the hands of the conditional vendee or charterer.

6. The appellant was a mere mortgagee out of possession, holding, as a mortgagee does, the legal title as a security for the payment of the purchase-money; he, therefore, is not personally responsible for the master's contracts, nor is the vessel liable for the appellant's contracts.

7. The master, therefore, was not the agent of the appellant, but derived all his authority over the vessel, and to make contracts binding upon her, from his employer, Sylvanus Holmes. The master derived his authority from Sylvanus Holmes, in his character as owner, within the signification of that term as used by the maritime law.

8. The contracts of affreightment are such as bind the vessel to answer in specie for their non-performance. If they were made by the master under such circumstances as to render the person who was pro tempore the owner personally responsible for their performance, then it follows the vessel is liable also; for the liability of each proceeds upon the basis that the contracts are made by one having authority to make them as the agent of the owner of the vessel. The Druid, 1 W. Rob. 399.

9. Sylvanus Holmes would be liable personally upon the contracts, and the master had authority to make them; for they were executed by the procurement of, and used by the owner of the vessel, Sylvanus Holmes, himself.

10. The owner, Sylvanus Holmes, is, therefore, estopped from denying the master's authority to execute the contracts of affreightment; and if the master did execute them with the sanction of the owner of the vessel, his authority to do so cannot be questioned.

11. The master and the owner, Sylvanus Holmes, as against these appellees, cannot deny even the receipt of the property on board, for it would be bad faith in them to do so; much less can they deny the contract to carry the flour, upon the faith of which contract, as well as upon the shipment and receipts declared in the bills of lading, the appellees parted with their money. Niles v. Culver, 8 Barb. S.C.. R. 205; Abbot on Shipping, 323, (margin;) Foster v. Newland, 21 Wend. 94.

12. The appellant cannot impeach these contracts as between him and the appellees,--

I. Because he was not the owner of the schooner, at the time the contracts were made and broken, in the eye of the maritime law. That law only recognizes the person who employed the vessel, and was pro hac vice the owner, to determine the liability of the vessel; and if the contracts presented hold good as against such owner, then the vessel is held to be bound to answer, in specie, for the non-performance of the contracts, and the rights of the general owner are subject to the lien and operation of the contracts so made.

II. Because he, by the contract with Holmes for the sale of the vessel, and the delivery of the vessel to him under and in pursuance of the provisions of that contract, is, in law, deemed to have taken the risks of its becoming hypothecated, to answer for the breach of any and all maritime contracts, as well as damages sustained by collision and all other marine torts. If it became so hypothecated, it would, in case of a forfeiture of the conditional contract, revert to him cum onere.

III. Because he allowed Holmes to hold himself out to the world as the owner of the vessel. He will not, therefore, be permitted to gainsay his acts, especially as against these appellees, who are innocent parties, and have no power to prevent his wrongful doings. If any one is to suffer, it should be the appellant. The liens of the maritime law should not be in this way avoided when contracted by third parties, in the ordinary course of business, with the master of the vessel, relative to her ordinary employment, under the sanction of the ostensible owner. The rights of parties would be far better guarded, and the interests of commerce be far better subserved, by protecting persons who deal with the ostensible owner of a vessel, than by favoring those who seek to reap the rewards of the business, but avoid its risks and responsibilities under the cover of a contract like that set up in this case.

13. The provisions of the decree, relative to the securities given to Mr. Morrison, are right. This court cannot marshal these assets, and the decree gives the appellant all the rights to the securities that the appellees have, and this is all he can claim in equity.

14. The appellant should be required to pay the costs personally, because the fund realized from the sale of the vessel is insufficient to pay the appellee's claim; and if their costs were decreed to be paid from that fund, it would be in effect to decree that they pay their own costs, which would be manifestly inequitable.

15. The decree should be affirmed, with costs to be paid by the appellant personally.

Mr. Justice CURTIS delivered the opinion of the court.

This is an appeal from a decree of the circuit court of the United States for the northern district of New York.

The appellees filed their libel in the district court, alleging that they are the consignees named in two bills of lading, signed by the master of the Schooner Freeman, which certify that certain quantities of flour had been shipped on board the schooner by S. Holmes and Company, at Cleveland, in the State of Ohio, to be carrried to Buffalo, in the State of New York, and there safely delivered-dangers of navigation excepted-to an agent named in the bills of lading, to be by him forwarded to the libellants, in the city of New York. That though this merchandise was thus consigned to the libellants for account of the shipper, yet, on receipt of the bills of lading, and on the faith thereof, the libellants made advances to the shippers. That thirteen hundred and sixty barrels of the flour mentioned in the bills of lading were not delivered at Buffalo, though the delivery was not prevented by any danger of navigation.

In accordance with the prayer of the libel, the schooner was arrested, and the appellant intervened as claimant.

It appeared that, a short time before these bills of lading were signed, the claimant, being the sole owner of the schooner, contracted with John Holmes to sell it to him for the sum of $4,000, payable by installments of $500, at different dates; that, by the contract, John Holmes was to take possession of the vessel, and if he should make all the agreed payments, the claimant was to convey to him; that only one instalment had become payable, and had been paid, when the vessel was arrested; that the vessel was delivered to John Holmes, under this contract, and he allowed his son, Sylvanus Holmes, to have the entire control and management of the schooner, which was in his employment, and victualled and manned by him, and commanded by a master whom he apponted, at the time the bills of lading in question were signed.

It further appeared that Sylvanus Holmes transacted business under the style of S. Holmes and Company; that the flour mentioned in these bills of lading as having been shipped by him, and which the master failed to deliver, never was in fact shipped-nor, so far as appeared, had Sylvanus Holmes any such flour; and that he induced the master to sign the bills of lading by fraud and imposition, intending to use them-as he did use them-as instruments to impose on the libellants, and obtain advances on the faith thereof.

To state succinctly the legal relations of these parties, it may be said, that the claimant was the general owner of the vessel; that Sylvanus Holmes was owner pro hac vice; that the libellants are holders of the bills of lading, for a valuable consideration parted with, in good faith, on the credit of the bills of lading; but that the bills of lading themselves are not real contracts of affreightment, but only false pretences of such contracts; and the question is, whether they can operate, under the maritime law, to create a lien, binding the interest of the claimant in the vessel.

Under the maritime law of the United States the vessel is bound to the cargo, and the cargo to the vessel, for the performance of a contract of affreightment; but the law creates no lien on a vessel as a security for the performance of a contract to transport cargo, until some lawful contract of affreightment is made, and a cargo shipped under it.

In this case there was no cargo to which the ship could be bound, and there was no contract made, for the performance of which the ship could stand as security.

But the real question is, whether, in favor of a bon a fide holder of such bills of lading procured from the master by the fraud of an owner pro hac vice, the general owner is estopped to show the truth, as undoubtedly the special owner would be. This question does not appear to have been made in the court below, the distinction between the special and general owner not having been insisted on. So large a part of the carrying trade of this country is carried on in vessels of which the masters, or other persons, are owners pro hac vice, and the practice of taking security by way of mortgage of vessels has become so common, while, at the same time, the confidence placed in bills of lading as the representatives of property is so great and so important to commerce, that the relative rights of the holders of such documents, and of the general owners and mortgagees of vessels, which are involved in this case, are subjects of magnitude; and the case has received the attentive consideration of the court.

The first and most obvious view which presents itself is, that the claimant in this case is not personally liable on these bills of lading. The master who signed them was not his agent, and they created no contract between him and the consignor or consignee, or any third person who might become their holder. Abbot on Shipping, 42 and note, 57 and note. And it has been laid down by the high court of admiralty in England, (The Druid, 1 Wm. Rob. 399,) that 'in all causes of action which may arise during the ownership of the persons whose ship is proceeded against, I apprehend that no suit could ever be maintained against a ship, where the owners were not themselves personally liable, or where their personal liability had not been given up, as in bottomry bonds by taking a lien on the vessel. The liability of the ship, and the responsibility of the owners in such cases, are convertible terms; the ship is not liable if the owners are not responsible; and, vice vers a, no responsibility can attach on the owners if the ship is exempt and not liable to be proceeded against.' See also The Bold Buccleugh, 2 Eng. Law and Eq. 537.

Though this language is broad enough to cover all cases, whether of contract or tort, it should be observed that the case before the court was one of wilful tort by the master, and that there was no occasion to advert to any distinction between a general and special owner, or to consider whether the interest of the former in the vessel could be bound by the act of the latter, or of the master appointed by him.

We are of opinion that, under our admiralty law, contracts of affreightment, entered into with the master, in good faith, and within the scope of his apparent authority as master, bind the vessel to the merchandise for the performance of such contracts, wholly irrespective of the ownership of the vessel, and whether the master be the agent of the general or the special owner.

In the case of The Phebe, Ware's R. 263, Judge Ware has traced the power of the master to bind the vessel by contracts of affreightment to the maritime usages of the middle ages. So far as respects such contracts made by the master in the usual course of the employment of the vessel, and entered into with a party who has no notice of any restriction upon that apparent authority, those maritime usages may safely be considered to make part of our law; though we should hesitate to declare that their effect has not been modified by our own commercial law, which has recognized interests and rights unknown to the commercial world when those usages obtained. And we desire to be understood as not intending to say that all contracts made by a master within the usual scope of his employment, which, by the ancient maritime law, would have created liens on the vessel, will now do so, in such manner as to bind the interests in the vessel of parties whom he does not represent as agent. For the ground on which we rest the authority of a master, who is either special owner or agent of the special owner, is, that when the general owner intrusts the special owner with the entire control and employment of the ship, it is a just and reasonable implication of law that the general owner assents to the creation of liens binding upon his interest in the vessel, as security for the performance of contracts of affreightment made in the course of the lawful employment of the vessel. The general owner must be taken to know that the purpose for which the vessel is hired, when not employed to carry cargo belonging to the hirer, is to carry cargo of third persons; and that bills of lading, or charterparties, must, in the invariable regular course of that business, be made, for the performance of which the law confers a lien on the vessel.

He should be considered as contemplating and consenting that what is uniformly done may be done effectually; and he should not be allowed to say that he did not expect, or agree, that third persons, who have shipped merchandise and taken bills of lading therefor, would thereby acquire a lien on the vessel which he has placed under the control of another, for the very purpose of enabling him to make such contracts to which the law attaches the lien. See The Cassius, 2 Story, 93; Webb v. Pierce, 1 Curtis, 107.

But if this be the ground upon which the interest of the general owner is subjected to liens, by the act of those who are not so his agents as to bind him personally, this ground wholly fails in the case at bar.

There can be no implication that the general owner consented that false pretences of cotracts, having the semblance of bills of lading, should be created as instruments of fraud; or that, if so created, they should in any manner affect him or his property. They do not grow out of any employment of the vessel; and there is as little privity or connection between him, or his vessel, and such simulated bills of lading, as there would be between him and any other fraud or forgery which the master or special owner might commit.

Nor can the general owner be estopped from showing the real character of the transaction, by the fact that the libellants advanced money on the faith of the bills of lading; because this change in the libellant's condition was not induced by the act of the claimant, or of any one acting within the scope of an authority which the claimant had conferred. Even if the master had been appointed by the claimant, a wilful fraud committed by him on a third person, by signing false bills of lading, would not be within his agency. If the signer of a bill of lading was not the master of the vessel, no one would suppose the vessel bound; and the reason is, because the bill is signed by one not in privity with the owner. But the same reason applies to a signature made by a master out of the course of his employment. The taker assumes the risk, not only of the genuineness of the signature, and of the fact that the signer was master of the vessel, but also of the apparent authority of the master to issue the bill of lading. We say the apparent authority, because any secret instructions by the owner, inconsistent with the authority with which the master appears to be clothed, would not affect third persons. But the master of a vessel has no more an apparent unlimited authority to sign bills of lading, than he has to sign bills of sale of the ship. He has an apparent authority, if the ship be a general one, to sign bills of lading for cargo actually shipped; and he has also authority to sign a bill of sale of the ship, when, in case of disaster, his power of sale arises. But the authority, in each case, arises out of, and depends upon, a particular state of facts. It is not an unlimited authority in the one case more than in the other; and his act, in either case, does not bind the owner, even in favor of an innocent purchaser, if the facts upon which his power depended did not exist; and it is incumbent upon those who are about to change their condition, upon the faith of his authority, to ascertain the existence of all the facts upon which his authority depends.

Though the law on this point seems to have been considered in Westminster Hall not to have been settled, when the eighth edition of Abbot on Shipping was published, in 1849, (Ab. on Sh. 325,) we take it to be now settled, by the cases of Grant v. Norway, 2 Eng. Law and Eq. 337; Hubbersty v. Ward, 18 ibid. 551; and Coleman v. Riches, 29 ibid. 323.

The same law was much earlier laid down in Walter v. Brewer, 11 Mass. 99.

But the case at bar is much stronger in favor of the claimant, because the master was not appointed by him, and the signature of the bills of lading was obtained by the fraud of the special owner.

In Gracie v. Palmer, 8 Wheat. 605, the question came before this court, whether the charterer and the master could, by a contract made with a shipper who acted in good faith, destroy the lien of the owner on the goods shipped, for the freight due under the charter-party. It was held they could not; and the decision is placed upon the ground of want of authority to do the act. It was admitted by the court that the charterer and master might impose on a shipper in a foreign part, by making him believe the charterer was owner, and the master his agent. But it was considered that so far as respected the owner, the risk of loss from such imposition lay on the shipper. So, in this case, even if the special owner and the master had combined to issue these simulated bills of lading, they could not create a lien on the interest of the general owner of the vessel. Upon the actual posture of the facts, the master having been defrauded by the special owner into signing the bills of lading, it would be difficult to distinguish them, so far as respects the rights of the claimant, from bills forged by the special owner. On these grounds, we are of opinion that, upon the facts as they appear from the evidence in the record, the maritime law gives no lien on the schooner; that the claimant is not estopped from alleging and proving those facts; and, consequently, that the decree of the court below must be reversed, and the cause remanded, with directions to dismiss the libel, with costs.


text: Talk:Schooner Freeman v. Buckingham/Opinion of the Court


text:
Widow and Heirs of De La Lande v. Louisiana

THIS case was brought up from the supreme court of Louisiana, by a writ of error issued under the 25th section of the judiciary act.

The case is stated in the opinion of the court.

It was argued by Mr. Janin, for the plaintiffs in error, and Mr. Benjamin, for defendant.

Mr. Janin made the following points:--

It is important to ascertain what points the supreme court of Louisiana really decied, for upon this depends the jurisdiction of this court. The decision turned principally upon the construction of the statutes of 1842 and 1850, and sums up a review of these statutes in the following words: 'From this view of the statute, we conclude that the tax attaches not only to property falling to alien heirs, who are non-residents, but also to the property falling to citizens of our own State who reside abroad.'

(Mr. Janin contended that under the 911, 912, 913, and 914th articles of the Code of Practice, a decision upon a petition for rehearing could be reviewed by this court.)

The Louisiana statutes, as expounded by the supreme court of the State, are contrary to two provisions of the constitution of the United States, namely:--

'Art. IV. sect. 2. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.'

'Art. I. sect. 8. The congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.' 4 Wash. C. C. R. 380; Story on the Constitution, § 1806; 9 Wheat. 190.

Mr. Benjamin contended that the record did not show that the questions stated in the 25th section arose in the case, much less that they were decided as that section requires. A petition for rehearing can bring up no new question. 6 La. R. 193; 19 La. R. 48; 1 Rob. R. 330; 1 Annual, 406.

The defence in the state court assumed the position, that the state law, properly construed, applies only to heirs alien and nonresident, and alleged that the defendants were citizens of Louisiana and residents. The court, without determining whether defendants were citizens of Louisiana or not, held, that the proper construction of the law embraced them as non-residents, whether they were citizens of Louisiana or of France.

The alleged error is that, if the defendants are citizens of Louisiana, and if the court construed the statute aright, then the statute is unconstitutional. But the court below did not decide the defendants to be citizens of Louisiana, and this court therefore cannot examine the first question suggested, and it is equally without power to examine the second question, being without jurisdiction to revise a decision of a state court for error in the construction of a state statute.

The question of the jurisdiction of this court, in cases similar to the present, was again very recently passed on by the court, and its former decisions reviewed and affirmed, in a case from Louisiana, which cannot be distinguished in principle from the one now under consideration.

Grand Gulf Co. v. Marshall, 12 How. 166, and other cases still later, affirm the previous jurisprudence. Lawler et al. v. Walker et al. 14 How. 153; Robertson v. Coulter, 16 How. 106.

Mr. Justice McLEAN delivered the opinion of the court.


text: Talk:Widow and Heirs of De La Lande v. Louisiana


text:
Widow and Heirs of De La Lande v. Louisiana/Opinion of the Court

This is a writ of error to the supreme court of Louisiana.

The treasurer of the State of Louisiana instituted a suit in the second district of New Orleans, claiming, in behalf of the State, a tax of ten per cent. on the amount of the succession of Benjamin Poydras de la Lande, inherited by persons alleged to be citizens and residents of France.

This tax was claimed by virtue of two acts of the legislature of Louisiana, one passed on the 26th of March, 1842, which provided 'that each and every person, not being domiciliated in this State, and not being a citizen of any State or Territory of the Union, who shall be entitled-whether as heir, legatee, or donee-to the whole or any part of the succession deceased, whether such person shall have died in this State or elsewhere, shall pay a tax of ten per cent. on all sums, or on the value of all property which he may actually receive, or so much thereof as is situated in this State.'

The 76th section of the act of March 21, 1850, provides, that 'every executor, curator, tutor or administrator, having the charge or administration of succession property belonging in whole or in part to a person residing out of this State, and not being a citizen of any other State or Territory of the United States, shall be bound to retain in his hands the amount of the tax imposed by law, and to pay over the same to the state treasurer.'

Benjamin Poydras, an old and wealthy naturalized citizen of Louisiana, having died in 1851, in France, leaving a widow and three minor children in that country, the treasure of the State of Louisiana filed, on the 27th of February, 1852, a petition in the second district court of New Orleans against the widow, as tutrix of her minor children, claiming ten per cent. on the amount of the property left by the deceased in Louisiana. The grounds for this claim, as alleged in the petition, are, 'that the said tutrix, as well as her said minor children, are all citizens of France, and reside in that country.' The answer of the defendants denied their liability for the payment of the tax, alleging that they were citizens of the State of Louisiana, legally domiciliated therein. The lower court gave judgment for the State, which judgment, on appeal, was affirmed by the supreme court of the State.

This being a writ of error, under the 25th section of the judiciary act of 1789, the defendant in error insists that there is no jurisdiction. That section provides, that on 'a final judgment or decree in any suit in the highest court of law or equity in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, any State, on the ground of their being repugnant to the constitution or laws of the United States, and the decision is in favor of such their validity, may be re examined, and reversed or affirmed in the supreme court of the United States, upon a writ of error.'

In the petition, the respondents are alleged to be citizens and residents of France. In their answer, they allege, that the deceased, in the year 1804, settled in Louisiana, and became a citizen of the United States, and maintained his residence and citizenship in Louisiana; that his last visit to France was intended to be temporary, but he was involved in lawsuits in that country for years, though he intended to return to Louisiana, and would have done so, had he not died. During his absence he acquired a large amount of property in Louisiana, and he continued to express his determination to return to that country during his life. And they alleged that they were citizens of the State of Louisiana.

In the final judgment in the lower court, the judge says:--

'The deceased was a French subject, who was born and did in France; and his heirs, now residents and natives of France, who have never been in this State, claim his estate. It appears to me that they came within the purview of the act of 1842.' A judgment for $45,208.80 and costs of suit was entered against the defendants. An appeal was taken to the supreme court of the State, where the judgment of the inferior court was affirmed.

It does not appear from the pleadings, and procedure in the inferior or in the supreme court, that the question was made whether the acts of 1842 and 1850 were in conflict with any provision of the constitution of the United States.

The supreme court held, that the tax in question 'attaches not only to property falling to alien heirs, who are non-residents, but also to the property falling to citizens of our own State residing abroad.' And they say the object of the law is to discourage absenteeism. The court held that neither the act of 1842 nor that of 1850 is repugnant to the 187th article of the constitution of the State, of 1845.

Up to the final judgment in this case, in the supreme court of Louisiana, no question was raised by the counsel nor decided by the court, involving the constitutionality of either of the acts before us, under the constitution of the United States. Indeed, this is not asserted by the counsel; but it is contended that such a question was raised and decided on the petition for a rehearing. If this were admitted, does it bring the case within the 25th section? It must appear from the record, that one or both the acts referred to are not only repugnant to some provision of the constitution of the United States, but that the point was presented to the court, and it decided in favor of the unconstitutional act or acts.

The points, which the defendants requested the court to review, were:--

1. That a citizen of Louisiana, whether native or naturalized, who absents himself, even for temporary purposes, from the State for more than two years, thereby loses his domicile and residence, and is bound to pay to the State ten per cent. on any inheritance, legacy, or donation to which he may be entitled as intestate or under a will, if the estate of which he is heir and legatee is opened in the State after his aforesaid absence of more than two years; but that he would not be liable to this tax, if during his absence he had become a citizen of another State or Territory of the Union.

2. That the act of March 26, 1842, which establishes the tax of ten per cent. upon foreign non-resident heirs, is not contrary to the 12th article of the constitution of 1845.

3. That Benjamin Poydras, by his prolonged residence in France, during the latter part of his life, had lost his domicile in Louisiana.

In neither of the above grounds is there an intimation of any conflict with the federal constitution in the decision. Whether there was a repugnancy between the tax acts and the state constitution, is a matter which belongs, exclusively, to the state court.

The court refused the rehearing, on what ground does not appear.

This court can exercise no appellate power over the supreme court of a State, except in a few specified cases; and the ground of jurisdiction must be stated with precision, and the ruling of the court to bring the case under the 25th section must appear, on the record, to have been against the right claimed. Any reason assigned for a rehearing or a new trial is not sufficient.

The case is dismissed for want of jurisdiction.


text: Talk:Widow and Heirs of De La Lande v. Louisiana/Opinion of the Court


text:
Heirs of General Lafayette v. Kenton

THESE cases were brought up by writ of error from the circuit court of the United States, for the eastern district of Louisiana.

They were argued by Mr. Taylor, for the plaintiffs in error, and Mr. Benjamin and Mr. Janin, for defendants.

The arguments of counsel were so connected with the maps which were produced in court, that it would be difficult to present to the reader a clear explanation of them without the map.

Mr. Justice CATRON delivered the opinion of the court.

title: Heirs of General Lafayette v. Kenton


text: Talk:Heirs of General Lafayette v. Kenton


text:
Heirs of General Lafayette v. Kenton/Opinion of the Court

By an act of 1803, congress authorized the secretary of war, to issue to Major-General Lafayette, land warrants, amounting in all, to 11,520 acres. By the act of March 2, 1805, he was authorized to locate his warrants on any lands, 'the property of the United States,' within the Orleans territory; the locations to be made with the register of a land-office established there, and the surveys were to be executed under the authority of the surveyor of the public lands south of Tennessee. Patents were directed to be issued, when surveys of the respective tracts were presented to the secretary of the treasury, 'together with a certificate of the proper register, (in each case,) stating that the land surveyed was not rightfully claimed by any other person.' And the act further provided, that no location should include any improved lands or lots.

By an act passed in 1806, entries were authorized for any quantity of land not less than five hundred acres.

On the 26th day of November, 1807, General Lafayette (by his agent) located 503 acres, calling for 'vacant land situated beyond the line of six hundred yards lately abandoned by congress to the corporation of the said city, round the fortifications of the same.'

Owing to the unsettled state of private land claims near the city of New Orleans, the location was not surveyed until March, 1825, when the principal surveyor certified to the register that he had surveyed for General Lafayette, 'a tract of land situate in the parish of Orleans, beyond the line of six hundred yards abandoned by congress to the corporation of the city of New Orleans, having such courses, distances, boundaries, and contents, as are represented in the annexed plat of survey.'

Pursuant to the act of March 2, 1805, the register certified that 'the lands contained in the survey returned to his office were vacant, with the exception of the parts designated as private claims.'

On the 4th day of July, 1825, a patent issued, which, by its recitals, describes the out-boundaries of the 503 acres, and then the granting clause declares that there is 'granted to said General Lafayette, and to his heirs, all such PARTS or PARCELS of the tract of land above described as are 'not legally claimed' by any other person or persons whomsoever.'

From the recitals in the patent, it might be inferred that General Lafayette's entry had the same boundaries as described in the patent; the fact, however, is, that the description contained in the patent is the first description, in words, of the land claimed under the entry; the patent being, in fact, founded on the figurative plan, which is attached to and forms an essential part of the patent, and to this plan we are forced to look for a certificate of the register, 'stating that the land is not rightfully claimed by any other person.'

Until the certificate was made, the secretary was not authorized to issue the patent, and, to enable the register to make the proper certificate, he was compelled to delay till congress, either directly or indirectly, through commissioners, ascertained the rightful claims of others lying within the limits supposed to be covered by General Lafayette's location; and as the location, in the form it was surveyed, (and no doubt as claimed to exist when it was made,) notoriously interfered with claims of different private individuals, and covered possessions protected by the act of March 3, 1807, no reason could be urged, on behalf of the locator, why a survey and certificate should be made and returned to the secretary of the treasury before the private claims were duly ascertained; it being the obvious object of the locator to obtain 'the parts or parcels of land,' within his out-boundaries, that should chance to be found vacant, after the private claims had been acted on and confirmed, or rejected.

As respected these private rights and pretensions, congress reserved to itself the power to deal with them by such means as were deemed appropriate; and by the course of action it prescribed, General Lafayette was compelled to abide. The case of West v. Cochran (17 How. 403,) lays down the governing rule on the subject.

The courts of justice have no power to revise what congress, or commissioners acting by its authority, have done in their confirmations of the titles here assailed. Against the United States these confirmations are conclusive, and they are equally so against General Lafayette; this being a condition imposed on his location by the act of 1805, above quoted, and which is affirmed in his patent. Titles, covering the lands sought to be recovered by the petitioners below, were confirmed to others before the patent to General Lafayette was issued, which appears by documents found in the record. But, if these documents were wanting, we are of opinion that the patent, and the figurative plan, with the designations on it, where the private confirmed titles and the vacant lands are laid down on the plot, and noted as private property or as vacant, furnish evidence that nothing passed by the grant but the lands noted as being vacant. It is, therefore, ordered that the judgment in the circuit court be affirmed in the respective cases cited in the caption.


text: Talk:Heirs of General Lafayette v. Kenton/Opinion of the Court


text:
Craighead v. Wilson

THIS was an appeal from the circuit court of the United States, for the eastern district of Louisiana.

There were briefs filed in this case by Mr. Robertson and Mr. Taylor, for the appellants, and by Mr. Benjamin and Mr. Janin, for the appellees; but the question of jurisdiction was not raised.

Mr. Justice McLEAN delivered the opinion of the court.

title: Craighead v. Wilson


text: Talk:Craighead v. Wilson

title: Talk:Craighead v. Wilson


text:
Craighead v. Wilson/Opinion of the Court

This is an appeal from the circuit court of the United States, for the eastern district of Louisiana.

During the opening argument of this case, doubts were suggested whether the decree of the circuit court was final within the act of congress, and the attention of the court was directed to that question.

The complainants filed their bill in the circuit court, claiming as heirs a part of the property of Joseph and Lavinia Erwin, deceased. Erwin died in 1829, in the parish of Iberville, having made his will in 1828. His property, real and personal, was much embarrassed; the persons claiming an interest in the succession were numerous; and, from the loose manner in which the property was managed by the testator in his lifetime, and by those who succeeded him, great difficulty was found in the distribution of the estate.

The circuit court, having ascertained the heirship of the claimants and their relative rights in the succession, referred the matter to a special master, 'to take an account of the successions of the said Joseph Erwin, sen., Joseph Erwin, jr., and Lavinia Erwin, in so far as it may be necessary to state the accounts between the plaintiffs and the heirs at law, defendants in this suit, to ascertain the property in kind that remains in the possession and control of either of the defendants, except Adams and Whiteall, as aforesaid-what has been sold, and the prices of the same and the profits thereof; and he will report all the encumbrances that have been discharged by either of the defendants on the same, and make to them all just allowances for payments, and permanent and useful improvements, and just expenses, and to ascertain what may be due to the said plaintiffs from either defendant; and the said master may make a special report of any matters that may be requisite to a full adjustment of the questions in the cause.'

By the 22d section of the judiciary act of 1789, it is provided, that final decrees of the circuit court, where the amount in controversy exceeds two thousand dollars, may be brought before this court by an appeal. The law intended that one appeal should settle the matter in controversy between the parties; and this would be the result in all cases where the appeal is taken on a final decree, unless it should be reversed or modified by this court.

The cases are numerous which have been dismissed on the ground that the appeals were taken from interlocutory decrees. In Perkins v. Fourniquet, 6 How. 206, it was held, 'where the circuit court decreed that the complainants were entitled to two sevenths of certain property, and referred the matter to a master in chancery, to take and report an account of it, and then reserved all other matters in controversy between the parties until the coming in of the master's report,' was not a final decree on which an appeal could be taken. And, in the same volume, 209, Pulliam et al. v. Christian, where 'a decree of the circuit court, setting aside a deed made by a bankrupt before his bankruptcy; directing the trustees under the deed to deliver over to the assignee in bankruptcy all the property remaining undisposed of in their hands, but without deciding how far the trustees might be liable to the assignee for the proceeds of sales previously made and paid away to the creditors; directing an account to be taken of these last-mentioned sums in order to a final decree,' was held not to be a final decree, and the appeal was dismissed.

The above cases are sufficient to show the grounds on which appeals in chancery are dismissed. To authorize an appeal, the decree must be final in all matters within the pleadings, so that an affirmance of the decree will end the suit. To apply this test, in all cases, cannot be difficult.

In no legal sense of the term, is the decree now before us a final one. The basis of the decree, embracing the equities in the bill, is found, but the distribution among the parties in interest depends upon the facts to be reported by the master. It is his duty, under the interlocutory decree, to balance the equities by ascertaining what has been expended on the property, and what has been received by each of the claimants; and also every other matter which should have a bearing and influence in the distribution of the property. Until the court shall have acted upon this report and sanctioned it, giving to each of the devisees his share of the estate under the will, the decree is not final.

There may be cases in which the attention of the court has not been drawn to the character of the decree appealed from; but such an inadvertence cannot constitute an exception to the rule. The decision of the court, under the law, establishes the rule which must govern in appeals from the circuit courts.

The case of Whiting v. Bank of the United States, 13 Peters, 6, is supposed to conflict with the above rule; but that was a decree of foreclosure and sale of the mortgaged premises. This was held to be a final decree, the order for sale having an effect similar to that of an execution on a judgment.

The case of Michaud et al. v. Girod et al. 4 How. 503, was an interlocutory decree in the circuit court, and which case, being appealed, was heard and decided by this court. But, from the report, there appears to have been no exception taken to the appeal, and it may be presumed to have escaped the notice of the court.

The case of Forgay et al. v. Conrad, 6 How. 201, was an appeal from an interlocutory decree, which was sustained, though objected to. But this decision was made under the peculiar circumstances of that case. The decree was, that certain deeds should be set aside as fraudulent and void; that certain lands and slaves should be delivered up to the complainant; that one of the defendants should pay a certain sum of money to the complainant; that the complainant should have execution for these several matters; that the master should take an account of the profits of the lands and slaves, and also an account of certain money and notes, and then said decree concluded as follows, viz.: 'And so much of said bill as contains or relates to matters hereby referred to the master for a report, is retained for further decree in the premises,' &c.

It will be observed, that two deeds for lots in New Orleans were declared to be null and void, and certain slaves owned by Forgay, one of the appellants, were directed to be sold on execution, as also the real estate and the proceeds distributed among the bankrupt's creditors; and if the defendants principally interested could not take an appeal until the return of the master, their property, under the decree, would have been disposed of beyond the reach of the appellate court, so that an appeal would be useless. This was the principal ground on which the appeal was sustained, although it was stated that this part of the decree was final.

The court say: 'The decree upon these matters might and ought to have awaited the master's report; and when the accounts were before the court, then every matter in dispute might have been adjudicated in one final decree; and if either party thought himself aggrieved, the whole matter would be brought here and decided in one appeal, and the object and policy of the acts of congress upon this subject carried into effect.'

The decree before us is not final, consequently it must be dismissed.


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


text: Abbott v. Essex Company Tenants

title: Abbott v. Essex Company Tenants


text: Talk:Abbott v. Essex Company Tenants

title: Talk:Abbott v. Essex Company Tenants