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But these rules have never been applied to matured obligations. Purchasers of notes or bonds past due take nothing but the actual right and title of the vendors.
The bonds in question were dated Jan. 1, 1851, and were redeemable after the 31st of December, 1864. In strictness, it is true they were not payable on the day when they became redeemable ; but the known usage of the United States to pay all bonds as soon as the right of payment accrues, except where a distinction between redeemability and payability is made by law, and shown on the face of the bonds, requires the application of the rule respecting over-due obligations to bonds of the United States which have become redeemable, and in respect to which no such distinction has been made.
Now, all the bonds in controversy had become redeemable before the date of the contract with White and Chiles ; and all bonds of the same issue which have the indorsement of a governor of Texas made before the date of the Secession Ordinance, and there were no others indorsed by any governor, — had been paid in coin on presentation at the Treasury Department; while, on the contrary, applications for the payment of bonds, without the required indorsement, and of coupons detached from such bonds, made to that department, had been denied.
As a necessary consequence, the negotiation of these bonds became difficult. They sold much below the rates they would have commanded had the title to them been unquestioned. They were bought in fact, and under the circumstances could only have been bought, upon speculation. The purchasers took the risk of a bad title, hoping, doubtless, that through the action of the National Government, or of the government of Texas, it might be converted into a good one.
And it is true that the first provisional governor of Texas encouraged the expectation that these bonds would be ultimately paid to the holders. But he was not authorized to make any engagement in behalf of the State, and in fact made none. It is true, also, that the Treasury Department, influenced perhaps by these representations, departed to some extent from its original rule, and paid bonds held by some of the defendants without the required indorsement. But it is clear that this change in the action of the department could not affect the rights of Texas as a State of the Union, having a government acknowledging her obligations to the national Constitu. tion.
It is impossible, upon this evidence, to hold the defendants protected by absence of notice of the want of title in White and Chiles. As these persons acquired no right to payment of these bonds as against the State, purchasers could acquire none through them.
On the whole case, therefore, our conclusion is that the State of Texas is entitled to the relief sought by her bill, and a decree must be made accordingly.
GRIER, J., dissented as to the jurisdiction and merits.
Among other cases decided by the Supreme Court at the last term, are the following:
Ward v. Smith (2 Balt. Law Trans. 265). A., residing within the Union lines, owed bonds bearing interest to B., who resided without those lines, but the bonds were payable at a bank within the lines. A. did not pay these bonds when due; held, that he was liable to pay interest on them, notwithstanding the continuance of the war.
Pacific Insurance Co. v. Soule (2 Balt. Law Trans. 459). The tax laid on the
1 Brown v. Davies, 3 T. R. 80; Goodman v. Simonds, 20 How. 343, 366.
amount insured, renewed, or continued by insurance companies, upon the gross amounts of premiums received and assessments, and upon dividends, undistributed sums and income, is not a direct tax, but a duty or excise.
In White's Bank v. Proceeds of the Robert Emmett, the court held that mortgages of vessels should be recorded in the home port. This is contrary to the cases of Potter v. Irish, 10 Gray, 416, and Chadwick v. Baker, 54 Me. 9, in which it was held that the record must be made in the port of the last registry and enrolment.
The Siren (2 L. T. (U.S. Courts Reps.) 71). A ship captured as prize while on her way to the port of adjudication in charge of the prize master and crew, came into collision with another vessel and sank her, through the fault of the prize vessel. The ship was libelled and sold as prize, and the proceeds paid into the registry. The owners of the sunken vessel and of her cargo then intervened, and claimed to be allowed damages for the collision out of the proceeds. The claim was allowed. Mr. Justice Nelson dissented in a vigorous opinion, denying that the Government was responsible for the torts of its agents. • No decision was announced at the last term of the Supreme Court on the constitutionality of the Legal Tender Acts.
LEGISLATION. — The text of the act appointing circuit judges, which was passed by the last Congress, is as follows:
Be it enacted, gc., That the Supreme Court of the United States shall hereafter consist of the Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum, and for the purposes of this act there shall be appointed an additional associate justice of said court.
Sect. 2. That for each of the nine existing judicial circuits there shall be appointed a circuit judge, who shall reside in his circuit, and shall possess the same power and jurisdiction therein as the justice of the Supreme Court allotted to the circuit. The circuit courts in each circuit shall be held by the justice of the Supreme Court allotted to the circuit, or by the circuit judge of the circuit, or by the district judge of the district sitting alone, or by the justice of the Supreme Court and circuit judge sitting together, in which case the justice of the Supreme Court shall preside, or in the absence of either of them, by the other (who shall preside) and the district judge. And such courts may be held at the same time in the different districts of the same circuit, and cases may be heard and tried by each of the judges holding any such court sitting apart by direction of the presiding justice or judge, who shall designate the business to be done by each. The circuit judges shall each receive an annual salary of $5,000.
Sect. 3. That nothing in this act shall affect the powers of the justices of the Supreme Court as judges of the circuit courts, except in the appointment of cierks of the circuit courts, who in each circuit shall be appointed by the circuit judge of that circuit, and the clerks of the district courts shall be appointed by the judges thereof respectively: Provided, That the present clerks of said courts shall continue in office till other appointments be made in their place or they be otherwise removed.
Sect. 4. That it shall be the duty of the Chief Justice, and of each justice of the Supreme Court, to attend at least one term of the circuit court in each district of his circuit during every period of two years.
Sect. 5. That any judge of any court of the United States who shall, after having attained to the age of seventy years, resign his office, shall thereafter, during the residue of his natural life, receive the same salary which was by law payable to him at the time of his resignation. Sect. 6. That this act shall take effect on the first Monday of December, 1869.
CALIFORNIA. UNITED STATES District Court. — United States v. J. H. Makins. A practice has prevailed in California, as in many other States, of giving naturalized citizens what is called a certificate of citizenship to the effect that the party therein named was on a certain day by judgment of the court admitted to be a citizen of the United States. This certificate is under the seal of the United States Court, and is signed by the clerk. At the time of the late election, forged certificates were issued in great numbers. And the defendant Makins was indicted for making and selling one of them under the Act of Congress of March 3, 1813. On demurrer to the indictment, which set forth the forged certificate at length, Hoffman, J., held, that the only certificate which the clerk had authority to make was the certified copy of the record of the court, and that he bad no right to certify the substance or effect of the judgment as the forged certificate purported to do, and that the only certificate, forgery of which was punishable under the statute, was a certified copy of the act by which the party was naturalized. The demurrer was therefore sustained.
This case calls attention to the urgent necessity of altering the law, or of giving up the practice of issuing certificates of naturalization in their present form.
LOUISIANA. Seiler v. Western Union Telegraph Co. The following interesting case has been decided in the Seventh District Court of New Orleans:
The plaintiff telegraphed to his agent at Louisville, inquiring what offer he could make for five thousand bushels Turk Island salt, and the agent replied, by telegraph: “We are offered 55 cents per bushel delivered at our City wharf. Answer if you accept.” By electric disturbances the despatch, when it reached New Orleans, read “at rour City Wharf," and the operator there supposing rour to be a mistake for your, changed the despatch accordingly. The plaintiff accepted the offer, supposing the price named was for the salt delivered in New Orleans. If the price of fifty-five cents had been the price for the salt delivered in New Orleans, the plaintiff would have made money; as it was, he lost it, and sued the telegraph company. The court held the company liable for the error, and that its liability was not discharged by the stipulation made in the printed headings of the despatches sent by the company, that they would not be held for mistakes in the transmission of non-repeated messages.
MARYLAND. UNITED STATES CIRCUIT COURT. — Kimberly v. Benjamin F. Butler. In 3 Am. Law Rev. p 376, we noticed this case when it made its appearance in the Superior Court of the City of Baltimore. It has since been removed into the Circuit Court, and came on for hearing before the Chief Justice of the United States in April last, on the demurrer to the plea of privilege set up by the
defendant, who it will be remembered claimed to be exempt from the service of summons in a civil suit, while on his way from Washington to his home. The Chief Justice gave an oral opinion sustaining the demurrer, on the ground that service of summons was not an arrest within the meaning of the Constitution.
The action is assumpsit, to recover money alleged to have been illegally exacted from the plaintiff as rent by the defendant, when the latter was in command of Fortress Monroe during the war. We have seen no report of the pleadings which will enable us to state the exact course of the proceedings after the demurrer was sustained; but the result seems to have been that the bill of particulars annexed to the declaration was adjudged insufficient, as not stating explicitly that the money was received by the defendant. The plaintiff had leeve to amend, and the case was continued to next term.
Josephine Price et al. v. Steamer Highland Light. This was a libel brought by the widow and child of a man employed on the steamer Highland Light to recover damages for his death, which was caused by the explosion of a steam chimney on board that vessel. Chief Justice Chase held that the only remedy of the plaintiffs was against the owners of the vessel by à suit in personam, and not against the vessel by a proceeding in rem, and that the only persons in whose favor a suit in rem was given by the United States Statutes were passengers. The libel was therefore dismissed. The Chief Justice, however, said, that though it was not necessary for the decision of the case to determine the point, he was inclined to the opinion that the plaintiffs had a remedy against the owners, though the death of the deceased was caused by the negligence of a fellow-servant on the vessel, as the United States Statute of July 7, 1838, concerning the remedy to persons injured by steam on board vessels, and the Statute of Maryland, giving a remedy to the wife and children of persons killed by accidents, made no distinction for the cases where the killing happened by the negligence of a fellowservant. It is to be regretted that these last points did not receive a fuller discussion. The case is reported 2 Balt. Law Trans. 361.
COURT OF APPEALS. — W. Williams v. A. Johnson. The abolition of slavery does not defeat a pending action of trover to recover the value of a slave. — 3 Balt. Law Trans. 481.
In the cases of J. T. B. Dorsey v. J. T. W. Dorsey, 2 Balt. Law Trans. 585, and Same v. A. B. Kyle, 2 Balt. Law Trans. 583, it is held that the plea of alien enemy goes only to the disability of the plaintiff, and that therefore proceedings at law can be taken against an alien enemy with the same effect as if he were not an enemy.
MASSACHUSETTS. SUPREME COURT. — Laura A. Adams v. Samuel Adams. This was a case of novel character, being a petition for a writ of supplicavit, by a woman living apart from her husband on account of his cruel treatment of her, seeking for a separate maintenance. The petitioner alleged that she had conscientious scruples against applying for a divorce.
Besides the older authorities, which are collected in 2 Story, Eq. Jur. $$ 1423, 1476, 1477, the petitioner relied on the case of Pratten v. Pratten, 4 Dess. 40, where a writ of supplicavit was granted in South Carolina.
The old 'form of the writ was to compel the husband " that he shall well and
honestly treat and govern the aforesaid B. (his wife), and that he shall not do nor procure to be done any damage or evil to her of her body, otherwise than what reasonably belongs to her husband for the purpose of the government and chastisement of his wife lawfully."
The court held. (Chapman, C.J., giving the opinion) that separate maintenance had never been the main object of a writ of supplicavit, though temporary support was sometimes ordered as incidental to the relief sought, and also that, “ in its nature it is a criminal proceeding, and this is a good reason why it should have gone into disuse ; for it does not seem desirable that a court of chancery should retain this small modicum of criminal jurisdiction.” The petition was dismissed.
MISSISSIPPI. UNITED STATES CIRCUIT COURT. – J. F. Speed v. B. D. Smith. Commercial intercourse between Mississippi and Kentucky was not unlawful in May, 1861.
UNITED STATES DISTRICT COURT. — In re John Thomas. A paymaster's clerk is a person in the military service of the United States, and therefore liable to be tried before a military court for forging vouchers.
I NEW YORK. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK.-J.J. Gillespie v. The Leonard. This was a libel in admiralty against a vessel for breach of a contract of affreightment by negligence in carrying goods, whereby they were damaged. The voyage of the vessel was on the Hudson River from New York to Albany, and was for the whole distance within the State of New York; but, also, within the ebb and flow of the tide. The libellants and the ship-owners, who appeared as claimants, were all inhabitants of the State of New York. Hall, J., intimated that the case might be perhaps considered one of tort, in which case the jurisdiction would be undoubted; but passing over this, and regarding the case as one of contract, he held that the case was within the jurisdiction of the admiralty, though the whole voyage was on waters entirely within the State of New York. In the Massachusetts District, Judge Lowell reached the same conclusion in The Sarah Jane, 2 Am. Law Rev. 455.
The case of Gillespie v. The Leonard is reported in full in 1 Chicago Leg. News, 313.
JAMES TOPHAM BRADY. Our readers may have felt some surprise that we did not speak in our last number of the death of Mr. James T. Brady. We were silent merely because we could find no satisfactory account of his life. An article has since appeared in the Galaxy ” which gives the main facts of his life, and a few characteristic anecdotes, though we think a better selection of the latter might have been made. From this article we have taken the following summary of his life and character, referring our readers to that magazine, if they desire fuller details.
By the death of James T. Brady, the bar of New York, and perhaps of the United States, has lost its most brilliant advocate. Endowed by nature with an