tions are of no avail, it is equally well settled rise to any liability. But I cannot read the
that by the law of England, and of some, if act so. All that it says is, that he shall not
not all, of the maritime nations of continent-be answerable in damages for any greater
al Europe, they are held to be valid and amount. It does not make his acts right if
they were previously wrongful.
seems to me that he would have no such
right" (that is, to salvage on the cargo), "for
the statute does not destroy the effect of all
that had been done, as it simply diminishes
or limits the liability in damages. If that is
so, of course that is an end of the case."

In the case of The Carron Park, L. R. 15 Prob. Div. 403, a charter party contained a stipulation that the shipowners were not to be responsible "for any act, negligence, or default whatsoever of their servants during the said voyage." The cargo having been damaged by water pouring through a valve, In the case of The Carron Park the stipunegligently left open by one of the engineers,lation exempted the ship from the consequenthe owners brought suit against the vessel, ces of all negligence in her navigation. In and the owners of the ship counterclaimed The Ettrick the act simply limited the liafor a general average contribution. It was bility of the owner in damages to a certain[199] held by the admiralty division that the shipsum per ton. The operation of the merwas exonerated in the suit against her by the chants' shipping act was evidently intended owners of the cargo, and was also entitled to to be merely defensive. The Ettrick, though her contribution. In delivering the opinion, cited by counsel, was not referred to by the Sir James Hannen, President, observed: court in The Curron Park, and was evi"The claim for contribution as general aver-lently regarded as standing upon a different age cannot be maintained where it arises out footing. of any negligence for which the shipowner The French law in this particular is the is responsible; but negligence for which he is same: The case of Le Normand v. Compagnot responsible is as foreign to him as to the nie Generale Transatlantique, 1 Dalloz. Juperson who has suffered by it. The loss risprudence Générale, 479, before the French would not have fallen upon the shipowner, court of cassation, was an appeal from the and the expenditure of sacrifice made by hin court of Rouen, which had treated as general is not made to avert loss from himself alone, average the expenses of salvage and towage but from the cargo owner." The case of of the steamer Amerique, after having found Strang v. Scott, L. R. 14 App. Cas. 601, was that the abandonment of the ship was imcited to the proposition that the conditions putable only to the master and crew, and had ordinarily existing between parties standing held that a contract exempting the ship from in the relation of ship and cargo owners may the consequences of negligence permitted the be varied by special contract. owners of the ship to recover from the own[198] *It is true that the case of The Carron Parkers of the cargo their share in contribution was not one arising upon a statute but upon a of the expenses of salvage. In the opinion of stipulation in a charter party; but I think it the court of cassation upon appeal it was can make no possible difference in the legal said that in this bill of lading the defendant aspect of the case whether the exemption be company, the owner of the Amerique, had conceded by contract or granted by statute. formally excepted the acts of God, of enemies, The case of The Ettrick, L. R. 6 Prob Div. pirates, fire by land or sea, accidents proceed127, is not in point. In that case the owner ing from the engine, boilers, steam, and all of a ship, sunk by a collision in the Thames, other accidents of the sea caused or not admitted the collision to be his fault, and caused by the negligence, fault, or error of paid into court £8 a ton in a suit to his lia-the captain, crew, or engineers, of whatever bility. The ship having been subsequently nature these accidents were, or whatever raised at the expense of the owner, he sought were their consequences. It was further said to recover in general average against the car that no law forbade the owners of ships from go its contributory portion of such expenses. stipulating that they would not answer for It was held that this could not be done, the the faults of the captain or crew; that such court basing its opinion upon the language of an agreement is no more contrary to public the merchants' shipping act, § 54, which mere-policy than to fair dealing; that in upholding ly declared that the owners of the ship should this clause in the bill of lading by which the not be answerable for damages in respect of defendant company declined responsibility losses to ships or goods to a greater amount for the faults of the crew, the decree appealed than £8 per ton of the ship's tonnage. In from violated no law. It was thereby estabdelivering the opinion of the court, Sirished that the ship had been abandoned at George Jessel observed: "That is merely the sea, after consultation with the crew; that it limit of the liability for damages. It does had afterwards been picked up by three Eng not in any way alter the property. lish vessels, which had towed it to Plymouth Now, property not being altered, the ground where it was voluntarily stranded, and that upon which the shipowner puts his claim is the defendant company had reclaimed it from this: He says that the payment of eight the salvors by paying the expenses of salvage pounds per ton not only prevents his being and towage; and thereupon the court held answerable in damages for any more, but is that this was a damage voluntarily suffered, equivalent to saying that he shall be in ex- that the expenses were incurred *for the com-[200] actly the same position as if no negligence mon safety of the ship and cargo, and with had been committed, and nothing had been out the payment of which the salvors would done by him or by his agents that would givel not have been obliged to deliver over the ves


curred through negligence, but where by the bills of lading the owners of the ship were not responsible for that negligence."

These are all the cases I have been able to find directly upon the question under considThe case of Crowley v. Saint Freres, 10 eration, but there is a class of analogous Revue Internationale du Droit Maritime, 147 cases which, I think, have a strong bearing also came before the French court of cassa- in the same direction. It is well known that tion in 1894. In this case, an English ship, by the law of England a ship is not responthe Alexander Lawrence, on a voyage from sible to another for a collision brought about Calcutta to Boulogne, with a cargo of jute, by the negligence of a compulsory pilot. Of took fire through the carelessness of a sailor. course where such ship is solely to blame the The ship put into Port Louis, an intermedi- rule is easy of application. No recovery can ate port, with the cargo still burning, and ex-be had against her. But where the faults of tinguished it, subsequently arriving at her the two vessels are mutual, a different quesport of destination. By a clause in the char- tion arises; and in the case of The Hector, L ter party the ship was exonerated from re- R. 8 Prob. Div. 218, it was held that, where a sponsibility for negligence. It was held that collision occurred by the mutual fault of two the expenses of putting into the port of ref- vessels, and one of such vessels had on board uge should be classed as general average, and a compulsory pilot, whose fault contributed not as particular average, as it had been held to the accident, the owner of that vessel was by the court below. The decree of that court entitled to recover a moiety of the damages (of Douai) was therefore reversed. sustained by her without any deduction on A case arising from the same disaster to account of the damage sustained by the the Alexander Lawrence, between the owners other; in other words, she was not responand the underwriters (11 Revue Inter-sible for any portion of the damage done to nationale, 41), subsequently came before the the other vessel, but might recover the half court of appeals of Orleans, on appeal from of her damages from such other vessel. Said the tribunal of commerce of Boulogne, where the master of the rolls, in delivering the opina similar ruling was made, and the expenses ion: of putting into port classed as general average under the stipulation in the charter party, although in the absence of such stipulation they would have been chargeable to the ship.

sel,and that such expenses constituted a claim for general average, notwithstanding the abandonment of the ship was not attributed to a peril of the sea, but to the fault of the master and crew. The decree was affirmed.

"With regard to the Augustus, she was[202] found to blame for the collision, therefore she is, in the first instance, liable to pay all the damage which the Hector has suffered. With regard to the Hector, it is found that her The same question came before the tri- owners are not to blame, but that her navibunal of commerce of Antwerp, Belgium, in gation was to blame; but that was the fault the case of The Steamer Alacrity, 11 Revue of the pilot. The owners are not liable for Internationale, 123, where the cargo was held this default, therefore they are not liable for to contribute to the expenses of putting into anything to the owners of the Augustus. a port of refuge, in consequence of a colli- What is the result? That the liability of the sion due to the fault of the captain, the ship-owners of the Augustus is declared to have owner being exonerated by his contract from been proved, but the liability of the owners of the consequences of this fault. In this case the Hector is disproved, and they are disthe parties had stipulated that general aver- missed from the suit. Therefore no balance is age expenses should be payable under the to be calculated; the owners of the Hector York-Antwerp rules, and that the ship are not liable for a single pennyworth of the should not be responsible for the faults of damage done to the Augustus. The owners [201]the captain or crew. It was held that, by of the Augustus must go against the pilot and the Belgium law, parties might contract with get what they can out of him; but the Hecreference to these rules, which declared the tor is entitled to succeed." expenses of putting into a port of refuge general average; that there was no difference between such expenses when occasioned by an inevitable accident or in consequence of the It seems to me that the cases above cited fault of the captain; that the parties having show an almost uniform trend of opinion stipulated that the ship should be exonerated against the principle laid down by the court from the consequences of such fault, the own-in this case. I do not contend that the deers of the cargo were bound for their contrib-cisions of the English, French, and Belgian utory shares. courts should be recognized by us any furFrom the case of The Mary Thomas ther than their course of reasoning com[1894] P. 108, it would seem that the Dutch mends itself to our sense of justice; but upon law is different; but it was said by Mr.Justice questions of maritime law, which is but a Barnes in this case (p. 116) that if the ques- branch of international law, I think the opintion had arisen in this country (England) ions of the learned and experienced judges of "the point could hardly have occurred, as it these courts are entitled to something more has done, because it has already been decided than respectful consideration. It is for the by Lord Hannen, in the case of The Carron interest of merchants and shipowners, whose Park, that the cargo owners would be liable relations and dealings are international in for the contribution in general average under their character, that the same construction circumstances where the accident had oc- I should, so far as possible, be placed upon the

See also Dudman v. Dublin Port and Docks Board, Ir. Pep. 7 C. L. 518; Spaight v. Tedcastle, L. R. 6 App. Cas. 217.

or may have observed in the employees of the treasury of the department.

"76. The minutes of the board shall be spread on the proper book, which shall be signed by all the members thereof, and ar authenticated copy transmitted to the superior chief of the treasury to enable him to make a report to the supreme government, when the case requires it."

By a law of December 7, 1837, it was made the duty of the governors, among other things, "to preside over the boards of sale and of the treasury, with power to defer the resolutions of these latter until, in the first or second session thereafter, the matter under consideration is more carefully examined into." 3 Mex. Laws, 443.

Hy article 140 of a decree of June 13, 1843, 1856]it was made the duty of the governor of each department to publish the decrees of the president and cause them to be complied with; and by subdivision 10 of article 142, the governor was made the chief of the public treasury of the department with general supervision of the same. 4 Mex. Laws, 428. And in passing it may be remarked that there is absolutely nothing in this record to indicate that the governor participated in any way in the act of sale, while the terms of the testimonio clearly show that the departmental treasurer proceeded and assumed to proceed upon his own sole authority.


December 16, 1841, the office of the superior chief of the treasury created by the decree of April 17, 1837, was abolished, and it was provided that the departmental treasur- | ers should continue for the present to perform the functions of their office as established by the law creating them, and also to perform those of the discontinued chiefs of the treasury, except such as were assigned to the commandants general, who were to be inspectors and visitors of the treasury offices, and to see that the public revenues were well and faithfully collected, administered, and disbursed; and to make timely reports to the supreme government of what they observed, which should be brought to its attention. 4 Mex. Laws, 75.

On February 10, 1842, the following decree was issued:

under other pretext shall, in any manner, embarrass the proceedings of the board of sale in making the sales, but the right of parties in interest to apply to the supreme government, or to the proper authorities, shall remain intact.

"Therefore I order this to be printed, published, and circulated, and demand that it be complied with." 4 Mex. Laws, 114.

Lopez certified that it was in virtue of this decree that he had sold the lands in question as belonging to the class of temporalities, and as being of a value not exceeding $500, in which case he assumed that he was authorized to sell irrespective of the board of sales in view of article 73 of the decree of April 17, 1837. The argument is that as that article provided that all purchases and sales exceeding $500 should be made necessarily by the board of sales, therefore all property under that value could be sold by the departmental treasurer alone; but the difficulty is, as pointed out by the court of private land claims, that even if that provision operated in the manner contended for, it had no application to a sale under the decree of February 10, 1842, which specifically directed that the sales should be made by the board, and contained nothing to suggest that the value of the property affected the power and duty of the board in any way.

The decree recognized the existence of the boards of sale as the only proper official or gans to accomplish the results desired, and it was this decree that was relied on as justifying the proceedings. If these lands were not of the temporalities, then the basis of the sale utterly failed, as the decree applied only to property of that class, and if of the temporalities the sales were to be made by the board.

In relation to article 73 of the law of 1837, some further observations may be added.

The regulations of July 20, 1831, and the law of April 17, 1837, treated of the same subject-matter, and must be read together; and prior laws, so far as not conflicting, were expressly saved from repeal by article 92 of the latter act.

*By § 73, the board of sales was necessarily 258, to make sales exceeding $500, but nothing was said as to sales for less than that sum. This would seem to have left the law of 1831

"Antonio Lopez de Santa Ana, etc. "Article 1. The boards of sale in the several departments will proceed to sell, at pub-in lic auction, to the highest bidder, the properties (fincas) situated therein that pertain to the department of temporalities.

"2. No bid will be admitted that does not cover the amount considered to be the value of the property (fincas), computed from the amount of the leases, which shall be considered as the interest thereof, at the rate of five per cent.

"3. The bids shall be made for cash, which shall be paid when the sale is approved, less the amount of the burden imposed on each property (fincas), which the buyers shall continue to recognize with a mortgage thereof. "4. No action or claim, which the actual lessors of the property (fincas), in question, [257]may intend to set up for *improvements or

force in respect of the making and the conduct of sales of property having a value be low that amount, and whether the board of sales consisted of the membership prescribed by § 73, or was composed in some respects of a different membership, is not material. While these various laws are rather confusing in their number and minuteness, nothing is clearer than that the power to make sales and grants was vested in the treasury department of the nation and governed by strict rules and regulations, none of which contemplated that any single officer could make the sales. It is enough that the departmental treasurer did not possess the power, acting singly and on his own respon sibility, to conclusively determine to what class lands belonged, and their value, and

aving decided these points, thereupon to | tion, the lands of this pueblo and mission exercise the sole power of sale.

Tumacacori, Calabazas, and Huebabi are said to have been originally separate and distinct pueblos and missions, of which the two latter were abandoned as early as December, 1806, when the native Indians of Tumacacori and the governor of said Indians presented petitions to the governor and intendente conde to give them title in accordance with the royal instructions of October 15, 1754, and of article 81 of the royal ordinances of December 4, 1786 (alleging the loss or destruction of their old title papers), of the lands embraced in the fundo legal and the estancia of each pueblo and mission, whereupon the grant of 1807 was made.

were abandoned, it would seem that they thus became a part of the public domain of the nation, and that as such the only laws applicable to their disposal were the laws of the nation in relation to its vacant public lands, to which the proceedings in this instance do not purport to have conformed or to have been made under them.

We concur with the court of private land claims that in either *view there was a fatal[200] want of power in the departmental treasurer to make the sale, and it is not asserted in the petition, nor was any evidence introduced to show that his action was participated in or ratified by the governor, or by the national government in any manner. And this is not The titulo refers to some lands acquired by a case in which the sale and grant can be purchase, though the record leaves that mat-treated as validated by presumption. ter entirely vague and uncertain, and declares Decree affirmed.

the grant to be made to the pueblo and na

tives of Tumacacori, that they may "enjoy

the use and freely possess at will and for their NORTHERN PACIFIC RAILROAD COM.

PANY et al., Plffs. in Err.,



own benefit in community and individually, and for the decent support of the church of said mission, but under the condition that in no case and in no manner shall they alienate at any time any part of said lands which are adjudicated and assigned to them, since they Grant to railroad company-extent of occu (259Jare all to be considered as belonging to the Republic and community of natives alone, for

(See S. C. Reporter's ed. 260-276.)


their proper use, as well for sowing purposes 1. The occupation and survey of lands with in-
as for stockraising and the increased pros-
perity of the same."

This was in accordance with the general rule that the missionaries and Indians only acquired a usufruct or occupancy at the will of the sovereign. United States v. Cervantes, 18 How. 553 [15: 484].

Prior to 1829, the tribunal of the inquisition had been abolished by the Cortes, and the monastic and other religious orders suppressed, and on the 10th of May of that year it was ordered, through the department of the treasury, that "the property in which consist the funds of the temporalities of the ex-Jesuits and monastics and the rural and urban estates belonging to the inquisition" be sold at public sale to the best and highest bidder. 2 Mex. Laws, 108. May 31, 1829, the commissary general of Mexico published


tent to locate a town site thereon, but with-
out filing a plat or obtaining the adoption of
the town site or a patent therefor until after
a railroad is located thereon, does not prevent
the land from being a part of the public do-
main for the purposes of a grant to the rail-
road company.

The fact that only 25 feet in width of its
right of way has been occupied for railroad
purposes, under a grant of 200 feet on each
side of the track, does not prevent a railroad
company from claiming the full width of the
grant as against persons who had occupied
the premises for the purpose of making a
town site location thereof, but had not ac-
quired a right thereto as against the railroad
company when the road was built.

[No. 93.]

Argued November 4, 5, 1897. Ordered for

Reargument January 10, 1898. Reargued
March 21, 1898. Decided May 31, 1898.

IN ERROR to the United States Circuit

a "list of the urban and rural estates relat-
ing to the temporalities of the ex-Jesuits and
suppressed monastics with a statement of
their values, the burdens they carry, and an-
nual revenue" (Ibid. 117), which did not in- Court of Appeals for the Eighth Circuit to re-
clude the lands in question. The depart-view a judgment of that court affirming the
mental treasurer did not claim, and manifest-
ly did not acquire, the power to sell these
lands under the order of May 10, 1829, or the
regulations of July 7, 1831, bearing on that

By a decree of April 16, 1834 (2 Mex. Laws, 689), the missions of the Republic were secularized, that is to say, converted from sacred to secular uses, and so far as these lands could have been regarded as temporalities, that is, profane property belonging to the its ecclesiastics, that decree

church or
changed their condition.
And, as many years before the sale in ques-

judgment of the Circuit Court of the United
States for the District of North Dakota, in
favor of the plaintiff, Patrick R. Smith, in an
action brought by him against the Northern
Pacific Railroad Company to recover the pos-

NOTE. As to pre-emption rights, see note to
United States v. Fitzgerald, 10: 785.

That patents for land may be set aside for
fraud, see note to Miller v. Kerr, 5:381.

As to errors in surveys and descriptions in

patents for lande; how construed, see note to
Watts v. Lindsey, 5: 423.

As to land grants to railroads, see note to
Kansas P. R. Co. v. Atchison, T. & S. F. R. Co.
28: 794.

missed upon an opinion filed and certain findings of fact, it will be presumed to have been dismissed upon the merits (Loudenback v. Collins, 4 Ohio St. 251); and that such dismissal covered every question put in issue by the pleadings, including the validity of the patent and its use by the defendants. [208] *But if there were any doubt with regard to this point, it would be resolved by an inspection of the opinion of the court (which may be examined for the purposes of identification), as it is published in 20 Court of Claims, 354, wherein it not only appears that the case was considered and disposed of upon the merits, but the court concludes its opinion (p. 370) in the following language:

"Upon our construction of the patent in issue the government cartridges do not in fringe the claimant's; but if we are in error as to this, still the claimant cannot recover, as the essential characteristics of his inven tion now found in the government cartridge were developed by officers of the army in 1864. That is, if the relative position of the vents and the wall of the fulminate chamber is a material part of the claimant's patent, the government has not infringed, this feat ure not appearing in its cartridges; but if this position is not material, still the claimant cannot recover, as the other characteristics of his invention, found in the cartridge now used by the defendants, were introduced by them prior to the use of the patent or the filing of the application for it, and even prior to the application of 1865."

Whether the reasons given by the court of claims for the dismissal of this petition are correct or not; whether, indeed, this judgment were right or wrong upon the tacts presented, is of no importance here. If such judgment were based upon an erroneous view of the claimant s patent, it was his duty to have promptly taken an appeal to this court, where the whole case would have been reopened and the error of the court of claims. if such there was, would have been rectified. It is insisted by the claimant that in the former action the main contention arose upon the manufacture and use of what was known as the "cup-anvil cartridge," together with a certain reloading cartridge, which had been experimentally manufactured, and that no claims for the "cup-anvil cartridge" or for the reloading cartridge in that suit are in issue in the case at bar. The suit, how ever, was upon the same patent, and it was found by the court of claims to have been upon the same facts, and we think the estop209]pel operates upon everything which was, if not upon everything which might have been put in issue in the former case. The presumption is that the issues were the same, and if they were in fact different, it was incumbent upon the claimant to show that the prior case was decided upon questions not involved herein. We have before us only a decision upon the merits, and upon the same state of facts, of a claim identical with this, and we perceive no reason why it should not operate as an estoppel.

But there seems to be nothing upon which

to base claimant's argument that the issues were not the same. The findings show that the manufacture of the reloading cartridge with the grooved anvil disk, referred to in finding 6, commenced at the Frankfort Arsenal in the month of July, 1879, and that from February, 1879, to March 31, 1883, being the period covered by the first suit, the United States manufactured 3,866,352 reloading cartridges. We see nothing to indicate that these reloading cartridges were manufactured experimentally, or that the issue as to these cartridges was not presented and decided in the former case. The claim in the present suit is also for reloading cartridges. But, even if a somewhat different theory or state of facts were developed upon the trial of the second case, the former judgment would not operate the less as an estoppel, since the patentee cannot bring suit against an infringer upon a certain state of facts, and after a dismissal of his action, bring another suit against the same party upon the same state of facts, and recover upon a different theory. The judgment in the first action is a complete estoppel in favor of the successful party in the subsequent action upon the same state of facts. Walker, Patents, § 468; Dubois v. Philadelphia, W. & B. Railroad Co. 5 Fish. Pat. Cas. 208; David Bradley Mfg. Co. v. Eagle Mfg. Co. 18 U. S. App. 349, 57 Fed. Rep. 989, 6 C. C. A. 661.

2. It only remains to consider, then, whether any proceedings taken in the court of claims since the dismissal of such petition deprived its judgment of its character as an estoppel. A motion for a new trial was made August 14, 1885, but as this motion was overruled in the following December, clearly this would not deprive the judgment of its efficacy as a plea *in bar. Indeed, it may well[210] be doubted whether the pendency of a motion for a new trial would interfere in any way with the operation of the judgment as an estoppel. Harris v. Barnhart, 97 Cal. 546; Chase v. Jefferson, 1 Houst. (Del.) 257; Young v. Brehe, 19 Nev. 379.

3. It further appears that on August 21, 1885, an application for an appeal was filed by the claimant, but as this appeal was never allowed or perfected, and as it does not appear that a transcript of the record was ever filed in this court, it is obvious that the authorities which hold that an appeal perfected to a superior court vacates the judgment of the court below have no application to this

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