Lapas attēli
PDF
ePub

losing party desires to make the writ of error a supersedeas, and to stay execution, he must sue out the writ and serve the same by lodging a copy thereof for the adverse party in the clerk's office within ten days, Sundays exclusive, after the judgment is rendered or the decree is passed and give the security required by the prior section in a sum sufficient to secure the whole amount of the judgment, except in certain special cases, as provided in the 29th Rule of this court. Within that period it is the absolute right of the party to adopt the necessary measures to stay execution pending the writ of error or appeal, and in order that he may not be prejudiced in the enjoyment of that right, the same section of the Judiciary Act provides that until the expiration of ten days no execution shall issue in any case where a writ of error may be a supersedeas, and also makes provision, in case the judgment or decree is affirmed, that the court affirming it may adjudge just damages to the respondent in the writ of error for his delay, and single or double costs, at their discretion. Repeated decisions of this court have established the rule that neither a writ of error nor an appeal is a supersedeas under the Judiciary Act unless the required security be given within the 430*] ten days mentioned in the 23d *section of the Act. Stafford v. Bk., supra; Same Case, 17 How., 275, 15 L. ed. 101; Green v. Van Buskerk, 3 Wall., 448, 18 L. ed. 245; Silsby v. Foote, 20 How., 290, 15 L. ed. 822; Adams v. Law, 16 How., 144; Hudgins v. Kemp, 18 How., 531, 15 L. ed. 511. Compliance with the conditions specified in the 23d section of the Judiciary Act must be shown in order that the writ of error or appeal may operate as a supersedeas and stay execution; and the rule is also we settled that if the writ of error be not sued out in time to operate as a supersedeas this court cannot award a stay of execution. Saltmersh Tuthill, 12 How., 387; Wallen v. Williams, 7 Cranch, 278; Hogan v. Ross, 11 How., 294. En less the requirements of the Act of Congress are complied with, within the ten days allowed for the purpose, no court can make a writ of error or appeal operate as a stay of execution under the Judiciary Act. The Roanoke, 3 Blatchf., 390, Grant all that, when the question is tested by the Judiciary Act, still it is insisted that the 23d section of the Judiciary Act is repealed by the 11th section of the Act entitled "An Act to Further the Administration of Justice," so as to substitute sixty days in the place of ten days as provided in the former Act. 17 Stat. at L., 198. By that Act it is provided that the plaintiff in error or appellant in such a case "may give the security required by law therefor within sixty days after the rendition of such judgment, decree, or order, or afterwards, with the permission of a justice or judge of the said appellate court." Undoubtedly the security required by the 22d section of the Judiciary Act to be given to prosecute the appeal with effect may be given within sixty days from the date of the judgment or decree, but the Act to further the administration of justice contains no provision whatever making writs of error or appeals a supersedeas, or giving them the effect to stay execution under any circumstances. They have that operation and effect by virtue of the 23d section of the Judiciary Act "in cases only where the writ of error is served by a copy

|

thereof being lodged for the *adverse [*431 party in the clerk's office within ten ⚫ days, Sundays exclusive," from the date of the judgment or decree. No provision of a different character upon that subject is enacted in the new Act, nor does it contain a word repugnant to the language or the requirements of the former provision. Execution is required to be stayed by the former provision for the term of ten days, but the new law does not contain any regulation upon that subject.

None of these suggestions can be controverted, but the argument is that inasmuch as Congress has extended the time for giving the security to prosecute the appeal to sixty days, it follows that the writ of error may be served within that time and still have the effect of a supersedeas, although the only section of the Act of Congress which gives it that effect provides that it shall have such an operation in cases only where the service is made by lodging a copy of it in the clerk's office for the adverse party within ten days.

Ten days from the date of the judgment or decree is allowed by the former law to serve the writ of error, but the new Act allows to a party desiring to stay proceedings sixty days to give the required security, and it even goes further and permits it to be given afterwards, with the permission of a justice or judge of the appellate court.

Questions not without difficulty, says Mr. Phillips, are suggested by a comparison of these two Acts, as the time within which the security is to be given is alone acted on by the new Act. Based on that suggestion the author inquires, very pertinently, as it seems to me: does this alteration carry along with it a change of all the other provisions of the old Act as to the lodging of the writ of error in the clerk's office within ten days, and the provision that no execution shall issue within the ten days? The answer to the question, as given by the author, is directly opposed to the opinion just read, which appears to proceed upon the ground that inasmuch as a change has been made in one of the conditions essential to a valid supersedeas it follows that the same change must be considered as made in all the other conditions, even though the new Act contains no other language to express any such intention, which, as [*432 it seems to me, reverses the standard rule of construction as expressed in a valuable maxim often quoted and applied in such discussionsExpressio unius est exclusio alterius. If Congress had intended to make other alterations in the prior regulations upon the subject, it is fairly to be presumed they would have said so, as it is always to be presumed that the Legislature, when it entertains an intention will express it in clear and explicit terms. Pott. Dwarris, 219. If the Legislature intended more, said Lord Denman, in Haworth v. Ormerod, 6 Q. B., 307, we can only say, that, according to our opinion they have not expressed it; to which it may be added that the better rule of construction is to hold that the Legislature meant what they have actually expressed, unless some manifest incongruity would result from doing so, or unless the context clearly shows that such a construction would be erroneous. King v. Banbury, 1 Ad. & E., 142. Words may sometimes be transposed, but they cannot be inserted. Lamond v.

Eiffe, 3 Q. B., 910. Intention, it is true, should govern, but it must be such an intention as the Legislature have used fit words to express. Pott. Dwarris, 182; Brewer v. Blougher, 14 Pet., 178. Repeals by implication are not favored. Wood v. U. S., 16 Pet., 342. On the contrary, the leaning of the courts, says Mr. Justice Swayne, is against the doctrine, if it be possible to reconcile the two Acts of the Legislature together. McCool v. Smith, 1 Black, 470, 17 L. ed. 222. Our best judgment is, says Mr. Phillips, that while the law has secured the right to stay proceedings by giving security in sixty days, the party is still bound to lodge his writ, as required by the Judiciary Act, within ten days, and that in the absence of a supersedeas bond filed within that period the execution may issue; and in that view I concur, and consequently dissent from the direction and opinion of the court. Service of the writ of error by lodging a copy thereof in the clerk's office for the adverse party within ten days, without

writ of certiorari is not a proper remedy for the alleged defect. Nothing is omitted from the transcript which is a part of the record in the court below. On the contrary, the only complaint is that the clerk has not appended to the transcript his certificate that it contains the full record. Such a defect, in a case of contumacy, might be remedied by a mandamus, but no application of that sort is made, nor is it suggested that there are any grounds for such an application. Under the circumstances the motion for certiorari is denied, and leave is granted to the plaintiff in error to withdraw the transcript to enable him to apply to the clerk of the court below to append thereto the necessary certificate.

FREDERICK Z. SALOMON, Appt.,

บ.

UNITED STATES.

(See S. C., 19 Wall., 17-20.)

tract.

433*] more, will not *effect a stay of execution, Contracts for military supplies—implied conbut if the security required is given within sixty days the supersedeas becomes effectual from the time the required security is given.

I am authorized to say that Mr. Justice Davis concurs in this dissent.

ASA HODGES, Plff. in Err.,

v.

MILTON VAUGHAN.

(See S. C., 19 Wall., 12, 13.)

Certiorari to correct record-when not proper remedy-withdrawing transcript.

1. A motion for certiorari is founded upon a suggestion of diminution and is designed to bring up some part of the record left back and not included in the transcript.

2. A certiorari is not a proper remedy, when the only complaint is that the clerk has not appended to the transcript his certificate that it contains the full record. Such a defect in a case of contumacy, might be remedied by a mandamus.

3. In such case the motion for certiorari is denied, and leave is granted to the plaintiff in error to withdraw the transcript, to enable him to apply to the clerk of the court below to append thereto the necessary certificate.

[blocks in formation]

Mr. Justice Clifford delivered the opinion of the court:

Such a motion is founded upon a suggestion of diminution, and is designed to bring up some part of the record left back and not included in the transcript.

When first presented, and without explanation, the court was inclined to grant the motion, but upon further consideration, we are all of the opinion that it must be denied, as the

1. The Act of 1862, requiring contracts for milltary supplies to be in writing, is not infringed by the proper officer having charge of such matter, accepting delivery of such supplies after the day stipulated, nor is a verbal agreement to extend the time of performance, invalid.

2. When the quartermaster in charge receives corn for the Government, and gives a receipt and vouches for the amount and the price, and the Government uses such part of it as it wants and suffers the remainder to decay by exposure and neglect, there is an implied contract to pay the value of such corn.

[No. 165.]

Argued Dec. 18, 1873. Decided Dec. 22, 1873.

APPEAL from the Court of Claims.

The case is stated by the court. Mr. T. J. D. Fuller, for appellant. Mr. C. H. Hill, Asst. Atty-Ĝen., for appellee.

Mr. Justice Miller delivered the opinion of the court:

The appellant entered into a written contract on the 28th of July, 1864, with the Quartermaster's Department, to deliver at Fort Fillmore 12,000 bushels of corn, at such times and in such quantities, of not less than 1,000 bushels per month, as the assistant quartermaster should direct; 9,000 bushels before the 1st of January, and the whole amount by the first day of May, 1865.

The 9,000 bushels were delivered and paid for before the first day of May, and about this there is no dispute.

Some negotiations took place afterwards between appellant and the quartermaster of that military department, concerning the delivery of the remainder, the finding in regard to which, is not very clear.

The appellants did, however, deliver the remainder of the corn at Fort Fillmore, October 15, 1865, by depositing it in the military storehouse at that place.

The Chief Quartermaster's clerk afterwards examined this corn, weighed some of the sacks, counted the remainder and gave the claimant a receipt for the amount, stating that it completed his contract. The court finds that this clerk then and there accepted and took actual

possession of the corn, and the Chief Quarter- | dan, promising to pay, Dec. 25, 1867, an amount master gave the claimant the usual voucher for the sum due.

The court also finds that the corn was sound when delivered, but was injured by reason of the defective and leaky condition of the storehouse at Fillmore.

Whether we regard this last delivery, made in October, as made under a verbal extension of the time stipulated in the original contract, or consider it as a new transaction in which the government received and took possession of the corn, and used part of it and permitted the remainder to be injured in its hands, we think the claimant is equally entitled to pay for it. That Act of 1862, 1 Stat. at L., 411, requiring contracts for military supplies to be in writing, is not infringed by the proper officer having charge of such matter, accepting deliv20*] ery of such supplies *after the day stipulated, nor is a verbal agreement to extend the time of performance invalid.

And if this were not so, when the quartermaster in charge receives of a person, corn for the Government, gives a receipt and voucher for the amount and the price, and the Government uses such part of it as it wants, and suffers the remainder to decay by exposure and neglect, there is an implied contract to pay the value of such corn, which value may, in the absence of other testimony, be presumed to be the price fixed in the voucher by the quartermaster. The judgment of the Court of Claims is, therefore, reversed, with directions to enter a judgment for claimant for the amount of the said voucher.

271*] *H. R. HALL et al., Plffs. in Err.,

v.

WILLIAM JORDAN.

(See S. C., 19 Wall., 271-273.) Stamps required on deed-when ten per cent. damages will be given on affirmance. Under the Stamp Act, the amount of stamps to be put upon a deed is according to the amount of dollars of its consideration, whether the consideration is to be paid in gold or in currency, although a gold dollar is worth more than one in currency. Where a writ of error is prosecuted for delay, ten per cent. damages in addition to interest will be given on affirmance.

[blocks in formation]

The

This action was brought by Jordan, the defendant in error, in the Court of Chancery for Lauderdale Co., Tennessee, to enforce an alleged vendor's lien upon certain land sold by Jordan to the defendants, now plaintiffs in error. consideration stated in the deed was $13,000, and stamps to the amount of $13 were affixed thereto. In the state courts, the defendants there alleged that they had no title to the land, because the deed purporting to convey it was not stamped according to the provisions of the Acts of Congress. It appears that, at the time of the purchase, i. e., Nov. 1, 1866, or soon after, the vendees paid to the vendor the sum of $6,500 in gold, and executed their note to Jor

in the legal currency of the United States sufficient to purchase at that time $6,890 in the gold coin of the United States. Judgment was rendered in the Chancery Court for Jordan. The Supreme Court of the State also rendered udgment for him. Neither of the state courts directly passed upon the defense that the deed was not properly stamped, and that defense is not mentioned in the decrees. At the last term motion was made by the defendants in error in this court to dismiss the writ of error. motion was denied. 15 Wall. 393, 21 L. ed. 72. Mr. Reverdy Johnson, for plaintiff in error: The contract was for an amount in currency which would buy the nominal amount agreed to be paid in gold. As the value of the currency was much less than the value of gold, the true consideration for the deed exceeded $13,000; and consequently the stamps on the deed were less than the law required.

This

Mr. Fred. P. Stanton, for defendant in error: There has never been any law requiring the stamps on deeds to be regulated by the currency values, where the transactions were for gold coin. The 9th section of the Act of July 13, 1866, 14 Stat. at L., 147, applies only to returns of income and taxable products, which were to be made to the assessors and reduced to currency values. That no such requirement was made as to stamp taxes, see 13 Stat. at L., p. 291, in schedule B, p. 299.

This writ of error was sued out for delay and comes within the 23d Rule. The stamp affixed to the deed was exactly what the law required. If the plaintiffs in error honestly doubted this, they had it in their power to correct the supposed error by applying to the collector. By the practice in Tennessee a vendee must furnish deeds and stamps. The plaintiffs in error are, therefore, endeavoring to take advantage of their own wrong.

No opinion was read; the following was the order entered.

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Tennessee, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged and decreed by this court, that the decree of the said Supreme Court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of ten per cent. in addition to interest from the date of the decree below, until paid, at the same rate per annum that similar decrees bear in the courts of Tennessee.-Per Mr. Justice Clifford.

[blocks in formation]

LITTLETON J. OMOHUNDRO.

(See S. C., 19 Wall., 65-70.) Trial by the court-questions open for review.

1. Where a jury is waived and issues of fact are submitted to the circuit court and the finding is general and there is no statement of facts, nothing is open to review by the losing party under a writ of error, except the rulings of the circuit court in the progress of the trial.

2. In such case there can be no review of the

finding of the circuit court where the finding is general, nor of the conclusions of the circuit court embodied in the general finding. [No. 173.]

Submitted Dec. 24, 1873. Decided Jan. 5, 1874.

contrary, the defendant immediately proceeded to introduce evidence responsive to that introduced by the plaintiff, and evidence to show that the decedent never promised the plaintiff as alleged in the declaration, and at the close of IN ERROR to the Circuit Court of the United his evidence *requested the circuit court [*68 States for the Eastern District of Virginia. to decide substantially as follows: The case is stated by the court.

Messrs. J. M. Carlisle, J. D. McPherson and James Lyon, for plaintiff in error. Mr. Wm. W. Crump, for defendant in

error.

Mr. Justice Clifford delivered the opinion of the court:

Advances were made by the plaintiff to Silas Omohundro in the sum of $4,390, as alleged in the bill of particulars filed in the case. None of that amount, as the plaintiff alleges, was ever paid by the decedent, and the defendant, as his executor, having neglected and refused to pay the same, the plaintiff brought an action of assumpsit against the defendant, as such executor, to recover the amount. Service being made the defendant ultimately appeared and pleaded the general issue. Both parties being present they waived a jury, and agreed that the issues of fact should be tried and determined by the court without the intervention of a jury.

Subsequently the defendant filed a special plea, that the plaintiff ought not to have and maintain his action aforesaid against 67*] *him because, he says, that at the time of making the supposed contract and promise in the declaration mentioned, war existed between the United States and the Confederate States, and that the plaintiff and the testator of the defendant were alien enemies, concluding with a verification and a prayer for judgment. Responsive to that special plea the plaintiff filed a replication denying the allegations thereof, and prayed that the same might be inquired of by the country.

Three depositions were introduced by the plaintiff to sustain the issue on his part, and he also introduced certain receipts, four of which were signed by the reputed wife of the decedent, and two by the contractor employed to build a dwelling-house for his reputed wife and children. Taken together, these proofs tend strongly to prove that the decedent was indebted to the plaintiff in the sum of $4,390, as found by the circuit court.

(1) That the alleged contract, inasmuch as war existed at the time between the United States and the Confederate States, was illegal and void.

(2) That the alleged contract, if not actually void, was an executory agreement and, as such, was terminated by the war.

(3) That the alleged contract, if otherwise valid, was too indefinite to be executed.

(4) That no interest is recoverable during the war or any portion of the war upon a contract between alien enemies.

(5) That upon the whole case, judgment should be for the defendant.

But the court refused so to decide, and ruled against the defendant upon each of the propositions, and the defendant excepted to the said ruling.

Under those circumstances the record states that "the court does find the facts in the case for the plaintiff, and gives judgment that the plaintiff recover of the defendant the sum of $4,391, with interest from the 24th day of June, 1864, at the rate of six per cent. per annum, and costs of suit."

Judgment having been rendered, the defendant moved the court to arrest the same and grant him a new trial, alleging for, cause that the judgment was contrary to the evidence and the law, and in support of the motion assigned for error the same causes as those stated in the requests submitted before judgment, but the court overruled the motion and the defendant excepted to the ruling.

Such is the state of the record which is brought here by the defendant in the subordinate court. Since the cause was removed here the losing party assigns a single cause of error, which is that the circuit court erred in refusing to rule in favor of the defendant upon the questions of law as requested, and in ruling to the contrary thereof.

Much discussion of the motion for new trial is unnecessary, as the motion is one addressed to the discretion of the court, in respect [*69 to which the ruling of the circuit court cannot be reviewed here upon a writ of error, nor in any other mode. Nor can it make any difference in this case that the motion for new trial was blended with one to arrest the judgment, as such a motion ought regularly to be made before the judgment is entered. Motions in arrest at common law were made after verdict and before judgment, and it is quite clear that the refusal to grant such a motion after judgment, in case where the finding of the circuit court is general, cannot be regarded as a ruling made in the progress of the trial.

Countervailing evidence was introduced by the defendant consisting of five depositions, a deed from the decedent to his reputed wife for her life, remainder to her six children, and the will of the testator with the probate thereof, the Virginia Ordinance of Secession, and an ordinance of the State requiring the Governor to call volunteers into the service of the State to repel invasion and to protect the citizens of the State in the emergency, and ten other ordinances passed by that State during the rebellion. All of the testimony introduced on the one side and the other being set forth at large in what is denominated in the transcript a bill of exceptions, filling thirty-seven pages of the transcript. None of the evidence introduced by the plain-before judgment. tiff was objected to at the time, nor is any part of it made the subject of an exception, nor was any request made by the defendant at the close of the plaintiff's case for a ruling adverse to the right of the plaintiff to recover. On the

Nothing remains to be considered except the requests for rulings presented by the defendant

Beyond all doubt the only effect of the exception to the refusal of the court to grant the fifth request, if the exception is admitted to be well taken, will be to require the court here to review the finding of the circuit court in a case

where the finding is general, and where it is un-
accompanied by any authorized statement of
the facts, which it is plain this court cannot do,
for the reasons given in the opinion of the court
in the case of Ins. Co. v. Folsom, 18 Wall., 237,

21 L. ed. 827, decided at the present term. Our
decision in that case was, that in a case where
issues of fact are submitted to the circuit court
and the finding is general, nothing is open to re-
view by the losing party under a writ of error
except the rulings of the circuit court in the
progress of the trial, and that the phrase "rul-
ings of the court in the progress of the trial"
does not include the general finding of the cir-
cuit court nor the conclusions of the circuit
court embodied in such general finding, which
certainly disposes of the exceptions to the re-
fusals of the circuit court to decide and rule as
requested in the first four prayers presented by
the defendant, as it is clear that those excep-
tions seek to review certain conclusions of the
eircuit court which are necessarily embodied in
the general finding of the circuit court.
70*] *Opposed to that it may be suggested
that the judgment shows that interest is al-
lowed but the answer to that is that neither the
finding nor the judgment shows anything in
regard to the principal except the amount
awarded to the plaintiff. Nothing can be in-
ferred from the declaration, to support the de-
fense of illegality, as it contains only the mon-
ey counts, nor from the bill of particulars filed
in the case, as it gives only the dates of the
payments and makes no reference to the date of
the contract. Support to the defense is entire-
ly wanting, without resorting to the evidence
as reported in the bill of exceptions, which in-
cludes all that was introduced on both sides
and is unaccompanied by any special finding of
the facts. Issues of fact cannot be found by
this court, as the Act of Congress requires that
such issues shall be found by the circuit court.
Consequently there can be no review of the
ing of the circuit court where the finding is gen-
eral, nor of the conclusions of the circuit court
embodied in the general finding.
Judgment affirmed.

WILLIAM M. McCARTHY, Appt.,

v.

CHARLES A. MANN et al.

(See S. C., 19 Wall., 20-32.)

[No. 542.]

Submitted Dec. 22, 1873. Decided Jan. 12, 1874.

Aed States for the District of Minnesota.

PPEAL from the Circuit Court of the Unit

The case is stated by the court. Mr. W. P. Clough, for appellant: The ordinary legal effect of the covenants of warranty which Pepin and French respectively held the former by his deed from Poncin, and the latter by his deed from Pepin, at the time of acquirement of title by Poncin, cannot be open to dispute. The nature of the obligations of each covenantor to each covenantee was that, in accordance with the tenor of the covenant, the former should maintain the latter in quiet enjoyment of the premises to which the covenant related, free from molestation by any claiming under title paramount; that if the covenantor should be unable to perform his covenant specifically, then he should compensate the covenantee in damages; and if the covenantor should at any time afterward acquire any title to the premises not in him at the date of the covenant, that such title should at once, by legal operation, inure to the covenantee, and become vested in him.

Irvine v. Irvine, 9 Wall., 617, 19 L. ed. 800; Rawle, Cov., 4th ed., 390, and cases cited; Bk. v. Mersereau, 3 Barb. Ch., 528; notes to Duchess of Kingston's Case, 2 Sm. L. Cas.

By virtue of the operation of the latter branch of the covenantor's obligation, in order to satisfy Poncin's covenant to Pepin, Poncin's estate in the one hundred acres at once inured to, and vested in, Pepin; and, in order to satisfy Pepin's covenant to French, Pepin's estate so received from Poncin, at once inured to, and vested, in French.

But when the title had thus arrived in French, it remained in him, for want of any refind-lations to the Elfelts, upon which the law could operate to carry it to them. As has been before remarked, French was under no obligation as to the Elfelts' title in the land. He had not covenanted to protect their title, and he had not professed in his deed to them, either to have or transfer any interest whatever in the land. The bargain, therefore, between them was confined, in law as well as in fact, to the estate, if any which French had at the date of his quitclaim deed to the Elfelts. As to all future estates or interest, he and they were strangers.

No rule of law is better settled than that subsequently acquired interests are wholly un

Void entry for land-re-instatement of rights affected by deeds of mere release without cove

of grantees.

1. Where au entry for land was void and was set

aside by the Commissioners of the Land Office, the

United States held the land as if no entry had been made. Being the absolute owner, it could grant it upon such terms and conditions as Congress

might prescribe.

2. Where the Act of Congress declared, that the entry should be re-instated as of its original date, and a patent should issue to the person who entered the land, and that the title should inure to the benefit of his grantees as he should have conveyed the land; by his grantees was meant those claiming title under him.

3. When he paid his money and procured a certificate of entry pursuant to the Act, an equity vested in each of those who would have held it if the original entry had been valid, and when the patent issued the legal title vested in the same parties.

nants, or without recitals of estate in the gran tor. Van Rensselaer v. Kearney, 11 How., 297; Rawle, Cov., 4th ed., 390, and cases cited.

Since, then, the operation of ordinary legal principles failed to carry the title to the one hundred acres any further than to French, it must have remained in him until he granted it away by sufficient deed of conveyance, which he' did to Furber afterwards, in 1856.

We are now brought to consider whether the ordinary rules of law did, in fact, govern in this case, or to what extent, if to any, the passage of title from Poncin to the party or parties in whom it ultimately vested, was controlled and guided by force of the Act of Congress itself. Appellant's position upon this point is, that

« iepriekšējāTurpināt »