Volume 63 — United States Reports

Held: and enjoyed, by them and their heirs; In May, 1854, the plaintiff, upon affidavits filed, moved to set aside the order of confirmation : I. Because the commissioners appointed herein have not *4 designated the several shares and portions of the different parties, by posts, stones; or othet permanent monument. 2.

This case was brought up from the Supreme Court, of Louisiana by a, writ of error issued under the twenty-fifth section of the judiciary act. It originated in the Fourth District Court of New Orleans, upon the petition of Hamilton W. Wright, who stated, that he was the sole assignee of the rights and interests of the late commercial firm of Wright, Williams, & Co: The petition then stated that J. J. B.

<p>This was an appeal from the Supreme Court of the Territory of Minnesota.</p> <p>The action was commeneed in the District Court, second district, county of Ramsey, by Claflin and the other defendants in error, against Lawler and thirty-two other persons, who were claimants under Lawler. .</p> <p>The statutes of Minnesota abolished the distinction between the forms of action at law, and declared that there should be in the Territory but one form of action at law, to be called a civil action, for the enforcement and protection of private rights and the redress of private wrongs, except as otherwise expressly provided by statute. The only pleadings allowed on the part of the plaintiff were: 1, the complaint; 2, the reply or demurrer; and on the part of the defendant, the demurrer and answer. All equity and chancery jurisdiction, authorized by the original act of the Territory, shall be exercised, and all suits or proceedings to be instituted for that purpose are to be commenced, prosecuted, and conducted to a final decision and judgment, by the like process, pleadings, trial, and proceedings, as in civil actions, and shall be called civil actions.</p> <p>Under this mode of practice, .Claflin and the other defendints in error, who were merchants of the city of New York, lied a complaint against Lawler, as mortgagor, to foreclose a mortgage given by him to them, upon property in St. Paul. The complaint claimed that the premises might be sold according to law.</p> <p>It is not necessary to follow the proceedings under this new mode of practice. Suffice it to say that Lawler answered, and the plaintiffs replied. A jury trial was waived in open court by_ the attorneys for the plaintiffs and defendants, and the cause was tried before the judge. The defendants then moved to dismiss the action for certain reasons, but the motion was overruled. They then offered depositions which were objected to, but allowed to be read for certain purposes; after which, the plaiutiffs offered some depositioñs which were objected to. but allowed to be read. Other evidence was offered by the plaintiffs, which was objected to, but received; upon which state of the case, the judge decreed that Lawler executed the note and mortgage, and was indebted to the plaintiffs in the amount claimed.</p> <p>No bill of exception was taken during the progress of the trial, but the whole case went up to the Supreme Court of the Territory. That court. made the following remarks in the course of its opinion:</p> <p>“A jury trial was waived, and the cause was tried by the court.</p> <p>'“ The court rendered a judgment of foreclosure in favor ol the plaintiffs, and made the usual'order directing a sale of the mortgaged premises.</p> <p>“ Prom the judgment, an appeal has been taken to.this court.</p> <p>“The paper books furnished to the court contain not only the judgment roll, including properly the decision of the court below, but also the evidence in the case. The cause has boon argued as though the evidence was properly before this court; but this is a mistake.</p> <p>-•“In this case, it is true that the evidence consisted wholly, or nearly so, oft depositions; but there is no more propriety in sending up written than oral testimony, and we have no right to lov>k beyond the record in the case.</p> <p>“ The record consists of the pleadings, the decision of the judge, and the judgment.. The question, then, is, does the record show any error of law ?</p> <p>“No error has been assigned, and none appears in the recoi’d, unless it appears in the decision of the court below.</p> <p>“The decision is something more than a general verdict. Perhaps any error disclosed by the decision, although such decision may contain more matter than is required by the statute, may be noticed. The true course, I apprehend, however, is for the party to take his exceptions to every ruling, in the same manner as in a jury trial, unless such ruling will form a legitimate part of the decision, or the error, if any exist, will appear in the pleadings.”</p> <p>It was stated in the outset of this report that the case was brought up to this court by appeal, and not by writ of error.</p>

Held: that the refusal of the circuit judge to instruct the jury, as prayed by the defendant, that the plaintiff could not recover on the special counts without showing that the work was completed by the day stipulated in the contract, was error.! Accordingly, the judgment was reversed, and the cause remanded, with directions to issue a new venire.

<p>Where a writ of error was allowed in open court, in the Circuit Court, but this writ had no seal, and was not returned to this court with the transcript of the record, and two terms afterwards a paper was filed in the clerk’s office, in form of a' writ of error, but without a seal, and having no authenticated transcript annexed, the cause must be dismissed on motion.</p>

This was an appeal from the Circuit Court of the United States for the eastern district of. Louisiana, sitting in admiralty. It was a case of collision between the steamboat Brigadier General R. H. Stokes and a flat-boat called “ Clear the Track,” which occurred upon the Yazoo river, 200 miles above its mouth where it empties into the Mississippi, twelve miles above Vicksburg, and wholly within the State of Mississippi. Its waters are fresh, and there are no tides in it.

Held: 'That a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, when that jurisdiction is not surrendered or restrained by the Constitution of the United States.

This case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Louisiana. The facts are stated in the opinion of the court.

This case was brought up by writ of error from the Circuit Court-of the United States for the northern district of Illinois. It was an ejectment brought by Morrill, a citizen of New Hampshire, to recover from John Cone and Carlos J. Cone the southwest quarter of section thirty-six, township eleven north, range one west, in the county of Warren, and State of Illinois. Upon the trial, the plaintiff exhibited his title as follows, viz: ' 1.

This case .was brought up by writ of error from the Circuit Court Of the United States for the eastern district of Louisiana. In 1857, Emmerling, a resident of New Orleans, an alien subject of the Grand Duke of Hesse Darmstadt, filed his petition in the Circuit Court, alleging that Cucullu had employed him as a broker to sell an estate.

This case was brought up by writ of error from the District Court of the United States for the eastern district of Texas.

Held: “ Where a party sues on an instrument which on the face of it appears to have been altered, it is for him to show that the alteration has not been improperly made.” This the claimants did hot attempt to show in the case at bar.

Held: that either of the set of bills of exchange may he presented for acceptance, and if not accepted, that a right of action presently arises, upon due notice, against all the antecedent parties to the bill, without any others of the set being presented; for,- say the *109 court, it is by no means necessary that all tbe parts should be presented for acceptance before a right of action accrues tc the holder.

<p>This case was brought up by writ of error from the Circuit Court of the United States for'the district of South Carolina.</p> <p>The insurance company liad an agency established in Charleston, where their' business appeared to be conducted by W. M. & <7. O. Martin. The policy was not filled up or under the seal of the company, but the action was brought upon a written memorandum upon the policy, as follows:</p> <p>Messrs. Mordecai & Co. are insured in the sum of four thousand dollars on the freight of the barque Susan, hence to Rio Janeiro and back, to any port of discharge in the United States.</p> <p>$4,000 at 2 p. c., $80.</p> <p>June 11, 1855.</p> <p>The first above entry in the name of Mordecai & Co. should have been to M. C. Mordecai, and the amount insured was valued at the sum insured.</p> <p>W. M. & J. C. MARTIN, Agents.</p> <p>May 30, 1856.</p> <p>The declaration went on to- state that the barque Susan, while proceeding on her said voyage, and before her arrival at her port of destination or final delivery, was by the perils and damages of the sea, and by stormy and tempestuous weather, and the violence of the winds and waves, bulged, broken, damaged, and spoiledthat the said barque had to put back to Rio Janeiro; and was unable to proceed on her said voyage, &c., &c.</p> <p>The defendants pleaded the general issue, and upon the trial the following bill of exceptions was taken, viz :</p> <p>And on the trial of the issue aforesaid, the said M. C. Mordecai, by his counsel learned in the law, to maintain and prove the issue on his part, gave in evidence aud proved that he was the owner of the barque Susau, and that he made an offer to the agents of the defendants in Charleston for insurance of four thousand dollars on the freight of said barque from Charleston to Rio Janeiro, and from thence to a port, of discharge in the United States, at a premium of two per centum, and that the offer was accepted, and the premium paid, and that the policy, according to the usage of the said company, was in blank. But a memorandum was signed by the agent, in .the terms following, viz: “Mordecai & Co. are insured on freight of barque Susan, hence to Rio Janeiro, and from thence to a port of discharge in the United States.</p> <p>Policy No. 209. $4,000, at 2 p. c. $80.</p> <p>June 11, 1855. W. M. & J. C. MARTIN Agt’s.”</p> <p>That the vessel sailed from Charleston with a full cargo on the 11th day of June, 1855, when she was tight and strong, and arrived at the port of Rio Janeiro, where she discharged her outward lading, and took in a return cargo for the United States of thirty-eight hundred bags of coffee, at a freight of seventy-nine cents per bag, and on the 10th October, A. D. 1855, started on her' return voyage, hut t>3r her want of strength and soundness was compelled to put back to Rio Janeiro, where she was condemned as unseaworthy and sold, and the whole freight of the return voyage was lost.</p> <p>Whereupon the counsel for the defendant insisted that the policy was an opfen policy, and the insurers liable for only one thousand dollars.; but the court ruled and so instructed the jury that the agreement proved was for a valued policy; and then the defendant insisted that the tour thousand dollars having been insured on the round voyage, the insurers, from the evidence, were liable for only one-half of the sum insured, the other half being covered by the freight of the outward voyage, and prayed the court so to instruct the jury; which instruction his honor, the presiding judge, refused to give, but charged the jury that the loss of the freight on the return voyage was a total.loss, and that upon the case as above stated the plain? tiff was entitled to recover the whole amount underwritten by the defendants; to which last-mentioned instruction the defendant excepted; and the jury thereupon gave their verdict for the plaintiff as and for a total loss of .the sum underwritten. to wit, for the sum of four thousand dollars and interest. Whereupon, the counsel for the said company, because the matter aforesaid doth not appear by the record of the verdict aforesaid, did allege their exception to the opinion of the said judge, and did requite that he should put his seal to this bill of exceptions, and thereupon the said judge, at the request of the counsel of the said Insurance Company of the Valley of Virginia, did put his seal, at Columbia, this second day of December, in the year of our Lord one thousand eight hundred and fifty-seven. A.G. MAG RATH, [seal.]</p> <p>Whereupon, the jury found a verdict for the plantiff for four thousand dollars, with interest and costs.</p>

Held: that where the rate of interest is not expressed in a contract, only the statute-rate can be recovered in an action on such contract.

This was au appeal from the Circuit Court of the United States for the eastern district of Louisiana, sitting in admiralty. The steamer Capitol was libelled in the District Court of the United States for the eastern district of Louisiana, by Roach & Long, residing at Louisville, in Kentucky.

<p>The patent of the Tathams, for an improvement upon the machinery used for making pipes and tubes from lead or tin, when in a set or solid state, explained and sustained.</p>

This case was brought up by writ of error from the Cireuit Court off the United States for the eastern district of Louisiana. The facts of the case are stated in the opinion of the court.

This case was brought up from the Supreme Court of the State of Arkausas, by a writ of error, issued under the twenty-fifth section of the judiciary act. It was an action of ejectment brought by "William H. Gainer and the other "clefendants in error against John C. Hale, to recover the southwest quarter of section thirty-three, in township two south, of range nineteen west, containing one hundred and sixty acres.

This was an appeal from the District Court of the United States for the northern district of California. All the title papers are set forth in the opinion of the court.

This was an application for a peremptory mandamus or for . a rule to show cause why the judges of the Circuit Court of the District of Columbia should not execute a judgment in that court, by which Henry Addison had been directed to be ousted of the mayoralty of Georgetown.

This case was brought up from the Supreme Court of the State of Arkansas by a writ of error issued under the 25tb section of the judiciary act. Maxwell and Watkins brought an ejectment against Moore and others, to recover the northeast quarter of section ten," in township seven north, range seven west, containing 160 acres of land, in the county of White, and State of Arkansas.

This was an appeal from the Supreme Court of the State of Indiana, purporting to be brought up under the twenty-fifth section of the judiciary act. It was a case of foreclosure of a mortgage brought in the Benton Circuit Court, (State court.) In the progress of the trial, there was a bill of exceptions signed and sealed by the presiding judge, and the ease then carried up by appeal to the Supreme Court of the State.

This case was brought up from the Supreme Court of the State of Arkansas by a writ of error issued under the 25th section of the judiciary act. It was a chancery case, but correctly brought up by writ of error. See preceding case of Verden v. Coleman.

<p>This was an appeal from the District Court of the United States for the eastern district of Texas, sitting in admiralty.</p> <p>The facts of the case are stated in the opinion of the court.</p> <p>The, District Court decreed that the libellants (Sherwood, McClelland, and McGinnis) should recover the sum of fifty per cent, salvage upon $5,150, which' sum was adjudged to the libellants against said steamboat Kate, and against George Bondies, the owner thereof; the money to be raised by a sale of the steamboat, and, in case of a deficiency, execution was to issue against Bondies, to be levied and collected on the estate, real and personal, credits and effects, of the said Bondies, wherever the same may be found.</p> <p>From this decree Bondies appealed to this court.</p>

This case was brought up by writ of error from the Circuit Court of the United States for the district of Massachusetts. It was an action of trespass on the case brought by Chaffee against the Boston Belting Company, for an infringement upon a patent granted for the manufacture of India-rubber, granted to Chaffee in 1886, and extended for seven years from the 81st day of August, 1850.

This was an appeal from the District Court of the United States for the northern district of California. The facts of the case are stated in the opinion of the court.

This case was brought up from the Supreme Court of the State of Alabama by a writ of error issued under the 25th section of the judiciary act. The facts of the case are stated in the opinion of the court.

This was a writ of error to the Supreme Court of Alabama. The case was similar to the preceding one of Sinnot and others v. Davenport, except that the steamboat Swan was employed as a lighter and towboat upon waters within the State of Alabama. It was therefore insisted that she was engaged exclusively in the domestic tra’de and commerce, and consequently could be distinguished from the preceding case. Both were argued together by the same counsel.

Held: that upon the pleadings and proofs, the aUegations are not sustained ; on the contrary, the transactions in both respects referred to' were fair, open, and unexceptionable. This was an appeal from the Circuit Court of the United States for the southern district of Alabama.

Held: in Hawkin v. Bourne, (8 Mee. and Wels., 710,) that one partner, by virtue of the relation he bears to the firm, is constituted a general agent for another, as to all matters within the scope of the partnership dealings, and has con ferred upon him, by virtue of that relation, all authorities necessary for carrying on the partnership, and all such as are usually exercised in the business in which they are engaged.

This case was brought up by writ of error from the District Court of the United States for the district of Wisconsin. The facts were these: In 1854; the defendants in error were merchants in New Pork, trading under the name of Bowen & McNamee, and the plaintiffs in error, merchants in Wisconsin, trading under the name óf H. O. Clark & Co. In. July, 1854, H. O. Clark & Co. had notes outstanding, due to the firm of Bowen & McNamee, to the amount of $7,950.75.

Tins was an appeal from the District Court of the United States for the northern district of California. The case is stated in the opinion of the court.

This was an appeal from the Circuit Court of +he United States for the eastern district of Louisiana. The case was twice before this court, and is reported in 18 Howard, 507, and 20 Howard, 133. The facts of the present case are stated in the opinion of the court.

<p>Tks law of Mexico, passed in 1824, directs that it shall not be permitted to unite in one hand, as property, more than one league of irrigable land, four leagues of farming land, and six for stock raising.</p> <p>Therefore, where a person had obtained a grant of five leagues in Lower California, and another grant of eleven leagues in Upper California, and the Departmental Assembly held the law to be, that the' Governor could not unite in the same hand more than eleven leagues, although it might be in different tracts,'the grant in Upper California must be restricted to six leagues.</p> <p>It was necessary to its being definitively voted, that the grant of the Governor should have the concurrence of the Departmental Assembly; and as they re duced it, taking off five leagues, this was the state of the title, as respected quantity, when the treaty with Mexico was made.</p>

This was an appeal from the District Court of the United States for the northern district of California. The facts of the case are stated in the opinion of the court.

United States v. The Heirs of Francisco De Haro, 63 U.S. (22 How.) 293 (1860), was a case in which the Supreme Court of the United States held that a plat made in 1853 of land adjudged to be covered by a Mexican grant, and confirmed in 1862, is sustained as the correct designation of the property covered by the grant.

These three cases were brought up by writ of error from the Circuit Court of the United States for the southern district of Alabama. They were suits brought by the United States upon a collector’s bond; that against Walker being a suit against the collector himself, as collector of customs for the port of Mobile,- and the other two being suits against his sureties.

This was an appeal from the District Court of the'United States for the northern district of California. The case is stated in the opinion of the court.

This was an appeal from the Circuit Coart of the United States for the district of Arkansas. The case is fully stated m the opinion of the court.

This was an appeal from the Circuit Court of the United States, sitting in admiralty, for the district of Michigan. It was a libel filed by Eber B. Ward against Charles Thompson, in the District Court of. the United States, in a cause of contract, civil and maritime. The ground of the libel was the agreement which will presently be reported. The District Court dismissed the libel, which decree was affirmed by the Circuit Court upon an appeal.

<p>Where the decision of the Supreme Court of a State was against the validity of a title to land derived from a confirmation by the board of commissioners sitting under the act of March 3, 1807, this court has jurisdiction, under the 25th section of the judiciary act, to review that decision.</p> <p>Where the controversy was between two claimants to land, both of whom held equitable titles only under confirmation by the board of commissioners above mentioned, the court had a right to go behind the prima facie title resulting from the confirmation, and to instruct the jury as to such facts as would tend to establish the superior equity of one of the claimants.</p>

This case was brought up by writ of error from the Supreme Court of the Territory of Minnesota. It was an action brought by Simpson in the District Court of the second judicial district, Ramsey county, in the Territory ' of Minnesota, upon a promissory note giyen under the following circumstances: $3,517.07J. St. Paul, June 14,1855.

Tins case was brought up. by writ of error from the Circuit Court of the United States for the eastern district of Louisiana. It was an action brought by John P. Jeter, a citizen of Louisiana, resident • in New Orleans, against James Hewitt and David Heron, citizens of the State of Kentucky, temporarily within the jurisdiction of the Circuit Court for the district of Louisiana. The nature and history of the case are stated in the opinion of the court.

Held: that the first charter was not violated within the meaning of the United States Constitution touching the obligation of contracts. That was certainly a much stronger case than the one now under discussion; and as long as it stands for law, surely the defendant in this case is safe. The case of Covington and Lexington Railroad Company v. Kenton County Court,. 12 B. Munroe, 144, is in point on this question.

This was an appeal from the Circuit Court of the United States for the district of Indiana. It was a bill filed on the equity side of the court, by Ogilvie, Angle, & Co., traders in partnership in Iowa, together with twelve other persons, citizens of Missouri, Ohio, and. Michigan, against the Knox Insurance Company, and against Levi Sparks and thirty-six other persons, subscribers to the capital stock of the company.

This was an appeal from the District Court of the United States for the northern district of California. The state of the title and a brief summary of the evidence are given in the opinion of the court.

This was an appeal from the District Court of the United States for the northern district of California. The state of Pico’s title is mentioned in the opinion of the court, and need- not be repeated.

This was an appeal from the District Court of the United States for the northern district of California. It was similar, in many of its circumstances, to the two preceding cases. The state of the title is set forth in the argument of the Attorney General.

Held: in effect, that if A, owning fifty lots, and having them all assessed to him, sell and convey forty-nine of them, but the whole fifty remain assessed to him, one lot (and it may be the only one belonging to him) must be sold for the taxes on the whole.

This was an appeal from the District Court of the United States for the southern district of California. The title of Dalton to the land which he claimed is set forth in the opinion of the court.

This was an appeal from the District Court of the United States for the northern district of California. The nature of the title, and evidence in support of it, are stated and commented on in the opinion of the court, and •need not be repeated.

This was an appeal from the Circuit Court of the United States for the eastern district of Pennsylvania. It was a case of collision between the steamship Keystone State and a barge called the A. Groves, jun., which took place on the river Delaware, whereby the barge was sunk in the river, and her cargo greatly damaged. The facts of the case are fully stated in the opinion of the court.

Held: pursuant to the order of the court, Christopher Adams, jun., president of the Union Bank, filed a paper in the court, acknowledging himself to be fully cognizant of all the proceedings of the meeting; that he was present at| it; that the bank was a creditor; that Hullen had been ¡unanimously elected by the creditors sole syndic, in - place of the former syndics, on the same terms and conditions that they had been,…

This was an appeal from the Circuit Court of the United States for the southern district of New York. It was' a libel filed in the District Court, sitting in admiralty, against the barque Griffin and her owners, by Greenway and Dickson, on a contract of affreightment. The circumstances are stated in the opinion of the court.

This case was brought up by writ of error from the District Court of the United States for the district of Iowa.