« ForrigeFortsett »
losing party desires to make the writ of error a thereof being lodged for the *adverse [*431
1 supersedeas, and to stay execution, he must sue party in the clerk's office
within ten out the writ and serve the same by lodging a days, Sundays exclusive," from the date of the copy thereof for the adverse party in the clerk's judgment or decree. No provision of a differoffice within ten days, Sundays exclusive, after ent character upon that subject is enacted in the judgment is rendered or the decree is passed the new Act, nor does it contain a word repug. and give the security required by the prior sec- nant to the language or the requirements of the tion in a sum sufficient to secure the whole former provision. Execution is required to be amount of the judgment, except in certain spe stayed by the former provision for the term of cial cases, as provided in the 29th Rule of this ten days, but the new law does not contain any court. Within that period it is the absolute regulation upon that subject. right of the party to adopt the necessary meas- None of these suggestions can be controverted, ures to stay execution pending the writ of error but the argument is that inasmuch as Congress or appeal, and in order that he may not be prej. has extended the time for giving the security to udiced in the enjoyment of that right, the same prosecute the appeal to sixty days, it follows section of the Judiciary Act provides that until that the writ of error may be served within that the expiration of ten days no execution shall is time and still have the effect of a supersedeas, sue in any case where a writ of error may be a although the only section of the Act of Consupersedeas, and also makes provision, in case gress which gives it that effect provides that it the judgment or decree is affirmed, that the shall have such an operation in cases only where court affirming it may adjudge just damages to the service is made by lodging a copy of it in the respondent in the writ of error for his delay, the clerk's office for the adverse party within and single or double costs, at their discretion. ten days. Repeated decisions of this court have established Ten days from the date of the judgment or the rule that neither a writ of error nor an ap- decree is allowed by the former law to serve the peal is a supersedeas under the Judiciary Act writ of error, but the new Act allows to a party unless the required security be given within the desiring to stay proceedings sixty days to give 430*] ten days mentioned in the 23d * section of the required security, and it even goes further the Act. Stafford v. Bk., supra; Same Case, 17 and permits it to be given afterwards, with the How., 275, 15 L. ed. 101; Green v. Van Buskerk, permission of a justice or judge of the appellate 3 Wall., 448, 18 L. ed. 245; Silsby v. Foote, 20 court. How., 290, 15 L. ed. 822; Adams v. Law, 16 Questions not without difficulty, says Mr. How., 144; Hudgins v. Kemp, 18 How., 531, 15 Phillips, are suggested by a comparison of these L. ed. 511. Compliance with the conditions spe- two Acts, as the time within which the security cified in the 23d section of the Judiciary Act is to be given is alone acted on by the new Act. must be shown in order that the writ of error or Based on that suggestion the author inquires, appeal may operate as a superserleas and stay very pertinently, as it seems to me: does this execution; and the rule is also wel settled that alteration carry along with it a change of all if the writ of error be not sued out in time to the other provisions of the old Act as to the operate as a supersedeas this court cannot lodging of the writ of error in the clerk's office award a stay of execution. Saltmursh Tut within ten days, and the provision that no exhill, 12 How., 387; Wallen v. Willianes, 7ecution shall issue within the ten days? The Cranch, 278; Hogan v. Ross, 11 How., 294. (!n. answer to the question, as given by the author, less the requirements of the Act of Congress are is directly opposed to the opinion just read, complied with, within the ten days allowed for which appears to proceed upon the ground that the purpose, no court can make a writ of error inasmuch as a change has been made in one of or appeal operate as a stay of execution under the conditions essential to a valid supersedeas the Judiciary Act. The Roanoke, 3 Blatchf., 390, it follows that the same change must be consid
Grant all that, when the question is tested by ered as made in all the other conditions, even the Judiciary Act, still it is insisted that the though the new Act contains no other language 23d section of the Judiciary Act is repealed by *to express any such intention, which, as (*432 the 11th section of the Act entitled “An Act to it seems to me, reverses the standard rule of Further the Administration of Justice," so as to construction as expressed in a valuable maxim substitute sixty days in the place of ten days as often quoted and applied in such discussionsprovided in the former Act. 17 Stat. at L., 198. | Expressio unius est exclusio alterius. If Con
By that Act it is provided that the plaintiff gress had intended to make other alterations in in error or appellant in such a case “may give the prior regulations upon the subject, it is fairthe security quired by law therefor within ly to be presumed they would have said so, as it sixty days after the rendition of such judgment, is always to be presumed that the Legislature, decree, or order, or afterwards, with the per- when it entertains an intention will express it mission of a justice or judge of the said appel- in clear and explicit terms. Pott. Dwarris, 219. late court.” Undoubtedly the security required | If the Legislature intended more, said Lord Denby the 22d section of the Judiciary Act to be man, in Haworth v. Ormerod, 6 Q. B., 307, we given to prosecute the appeal with effect may can only say, that, according to our opinion they be given within sixty days from the date of the have not expressed it; to which it may be added judgment or decree, but the Act to further the that the better rule of construction is to hold administration of justice contains no provision that the Legislature meant what they have acwhatever making writs of error or appeals a su- tually expressed, unless some manifest inconpersedeas, or giving them the effect to stay exe-gruity would result from doing so, or unless cution under any circumstances. They have the context clearly shows that such a constructhat operation and effect by virtue of the 23d tion would be erroneous. King v. Banbury, 1 section of the Judiciary Act "in cases only' Ad. E., 142. Words may sometimes be transwhere the writ of error is served by a copy posed, but they cannot be inserted. Lamond v.
Eiffe, 3 Q. B., 910. Intention, it is true, should writ of certiorari is not a proper remedy for the
FREDERICK Z. SALOMON, Appt.,
UNITED STATES. the adverse party within ten days, without
(See 8. C., 19 Wall., 17-20.) 433*] more, will not *effect a stay of execution, but if the security required is given within sixty Contracts for military supplies—implied con
tract. days the supersedeas becomes effectual from the time the required security is given.
1. The Act of 1862, requiring contracts for millI am authorized to say that Mr. Justice tary supplies to be in writing, is not infringed by Davis concurs in this dissent.
the proper officer having charge of such matter, ac-
2. When the quartermaster in charge receives
corn for the Government, and gives a receipt and ASA HODGES, Piff. in Err.,
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
value of such corn.
(No. 165.] Certiorari to correct record-when not proper remedy-withdrawing transcript.
Argued Dec. 18, 1873. Decided Dec. 22, 1873. 1. A motion for certiorari is founded upon a sug. gestion of diminution and is designed to bring up The case is stated by the court. some part of the record left back and not included in the transcript.
Mr. T. J. D. Fuller, for appellant. 2. A certiorari is not a proper remedy, when the
Mr. C. H. Hill, Asst. Atty-Gen., for appellee. only complaint is that the clerk has not appended to the transcript his certiticate that it contains the full record. Such a defect in a case of contumacy,
Mr. Justice Miller delivered the opinion of might be remedied by a mandamus.
the court: case the motion for certiorariis The appellant entered into a written contract denied, and leave is granted to the plaintiff in error to withdraw the transcript, to enable him to
on the 28th of July, 1864, with the Quartermasapply to the clerk of the court' below to append ter's Department, to deliver at Fort Fillmore thereto the necessary certificate.
12,000 bushels of corn, at such times and in (No. 666.)
such quantities, of not less than 1,000 bushels
per month, as the assistant quartermaster Motion filed Dec. 19, 1873. Decided Dec. 22, 1879. should direct; 9,000 bushels before the 1st of
January, and the whole amount by the first day N ERROR to the Circuit Court of the United of May, 1865.
The 9,000 bushels were delivered and paid Motion for certiorari.
for before the first day of May, and about this The point in question sufficiently appears in there is no dispute. the opinion.
Some negotiations took place afterwards beMessrs. W. W. Wilshire and J. S. Robinson, tween appellant and the quartermaster of that for plaintiff in error,
military department, concerning the delivery of Mr. A. H. Garland, for defendant in error. the remainder, the finding in regard to which,
is not very clear. Mr. Justice Clifford delivered the opinion of The appellants did, however, deliver the rethe court:
mainder of the corn at Fort Fillmore, October Such a motion is founded upon a suggestion 15, 1865, by depositing it in the military storeof diminution, and is designed to bring up some house at that place. part of the record left back and not included The Chief Quartermaster's clerk afterwards in the transcript.
examined this corn, weighed some of the sacks, When first presented, and without explana-counted the remainder and gave the claimant tion, the court was inclined to grant the mo- a receipt for the amount, stating that it comtion, but upon further consideration, we are pleted his contract. The court finds that this all of the opinion that it must be denied, as the clerk then and there accepted and took actual
3. In such
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 in the legal currency of the United States suffithe sum due.
cient to purchase at that time $6,890 in the The court also finds that the corn was sound gold coin of the United States. Judgment was when delivered, but was injured by reason of rendered in the Chancery Court for Jordan. the defective and leaky condition of the store | The Supreme Court of the State also rendered house at Fillmore.
udgment for him. Neither of the state courts Whether we regard this last delivery, made in directly passed upon the defense that the deed October, as made under a verbal extension of the was not properly stamped, and that defense is time stipulated in the original contract, or con
not mentioned in the decrees. At the last term sider it as a new transaction in which the gov- ļ motion was made by the defendants in error ernment received and took possession of the in this court to dismiss the writ of error. This corn, and used part of it and permitted the re- motion was denied. 15 Wall. 393, 21 L. ed. 72. mainder to be injured in its hands, we think Mr. Reverdy Johnson, for plaintiff in error: the claimant is equally entitled to pay for it.
The contract was for an amount in currency That Act of 1862, i Stat. at L., 411, requir- which would buy the nominal amount agreed ing contracts for military supplies to be in to be paid in gold. As the value of the curwriting, is not infringed by the proper officer rency was much less than the value of gold, having charge of such matter, accepting deliv- the true consideration for the deed exceeded 20*} ery of such supplies *after the day stipu- $13,000; and consequently the stamps on the lated, nor is a verbal agreement to extend the deed were less than the 'law required. time of performance invalid.
Mr. Fred. P. Stanton, for defendant in error: And if this were not so, when the quarter- There has never been any law requiring the master in charge receives of a person, corn for stamps on deeds to be regulated by the currency the Government, gives a receipt and voucher values, where the transactions were for gold for the amount and the price, and the Govern coin. The 9th section of the Act of July 13, ment uses such part of it as it wants, and suf-1866, 14 Stat. at L., 147, applies only to returns fers the remainder to decay by exposure and of income and taxable products, which were neglect, there is an implied contract to pay the to be made to the assessors and reduced to curvalue of such corn, which value may, in the ab- rency values. That no such requirement was sence of other testimony, be presumed to be the made as to stamp taxes, see 13 Stat. at L., p. price fixed in the voucher by the quartermaster. 291, in schedule B, p. 299.
The judgment of the Court of Claims is, there- This writ of error was sued out for delay and fore, reversed, with directions to enter a judg. comes within the 230 Rule. The stamp affixed ment for claimant for the amount of the said to the deed was exactly what the law required. poucher.
If the plaintiffs in error honestly doubted this, they had it in their power to correct the sup
posed error by applying to the collector. By 271'] *H. R. HALL et al., Plffs. in Err.,
the practice in Tennessee a vendee must furnish deeds and stamps. The plaintiffs in error are,
therefore, endeavoring to take advantage of WILLIAM JORDAN.
their own wrong. (See S. C., 19 Wall., 271-273.)
No opinion was read; the following was the Stamps required on deed—when ten per cent. order entered. damages will be given on affirmance.
This cause came on to be heard on the tranUnder the Stamp Act, the amount of stamps to script of the record from the Supreme Court of be put upon a deed is according to the amount of the State of Tennessee, and was argued by dollars of its consideration, whether the considera- counsel; on consideration whereof, it is now tion is to be paid in gold or in currency, although a here ordered, adjudged and decreed by this gold dollar is worth more than one in currency.
Where a writ of error is prosecuted for delay, court, that the decree of the said Supreme ten per cent. damages in addition to interest will Court in this cause be, and the same is hereby be given on affirmance.
affirmed, with costs and damages at the rate of (No. 154.)
ten per cent. in addition to interest from the Argued Dec. 16, 1873. Decided Dec. 22, 1873. date of the decree below, until paid, at the same
rate per annum that similar decrees bear in the
IN E RROB ste the Supreme Court of the State courts of Tennessee.- Per Mr. Justice Clifford.
of Tennessee. This action was brought by Jordan, the defendant in error, in the Court of Chancery for Lauderdale Co., Tennessee, to enforce an alleged | RICHARD COOPER, Exr. of Silas Omohundro, vendor's lien upon certain land sold by Jordan
Deceased, Piff. in Err., to the defendants, now plaintiffs in error. The consideration stated in the deed was $13,000, and stamps to the amount of $13 were affixed
LITTLETON J. OMOHUNDRO. thereto. In the state courts, the defendants
(See S. C., 19 Wall., 65-70.) there alleged that they had no title to the land, Trial by the court-questions open for reviero. because the deed purporting to convey it was not stamped according to the provisions of the submitted to the circuit court and the finding, is
1. Where a jury is waived and issues of fact are Acts of Congress. It appears that, at the time general and there is no statement of facts, nothing of the purchase, i. e., Nov. 1, 1866, or soon is open to review by the losing party under a writ after, the vendees paid to the vendor the sum of lof error, except the rulings of the circuit court in
the progress of the trial. $6,500 in gold, and executed their note to Jor
2. In such case there can be no review of tbe
finding of the circuit court where the finding is, contrary, the defendant immediately proceeded. general, nor of the conclusions of the circuit court to introduce evidence responsive to that introembodied in the general finding. [No. 173.)
duced by the plaintiff, and evidence to show Submitted Dec. 24, 1873. Decided Jan. 5, 1874. that the decedent never promised the plaintiff
as alleged in the declaration, and at the close of N States for the Eastern District of Virginia. to decide substantially as follows: The case is stated by the court.
(1) That the alleged contract, inasmuch as Messrs. J. M. Carlisle, J. D. McPherson
war existed at the time between the United and James Lyon, for plaintiff in error. States and the Confederate States, was illegal Mr. Wm. w. Cramp, for defendant in and void.
(2) That the alleged contract, if not actually Mr. Justice Clifford delivered the opinion void, was an executory agreement and, as such, of the court:
was terminated by the war. Advances were made by the plaintiff to Silas (3) That the alleged contract, if otherwise Omohundro in the sum of $4,390, as alleged in valid, was too indefinite to be executed. the bill of particulars filed in the case. None (4) That no interest is recoverable during of that amount, as the plaintiff alleges, was ever the war or any portion of the war upon a conpaid by the decedent, and the defendant, as his tract between alien enemies. executor, having neglected and refused to pay (5) That upon the whole case, judgment the same, the plaintiff brought an action of as. should be for the defendant. sumpsit against the defendant, as such executor, But the court refused so to decide, and ruled to recover the amount. Service being made the against the defendant upon each of the propodefendant ultimately appeared and pleaded the sitions, and the defendant excepted to the said general issue. Both parties being present they ruling. waived a jury, and agreed that the issues of Under those circumstances the record states fact should be tried and determined by the court that “the court does find the facts in the case without the intervention of a jury.
for the plaintiff, and gives judgment that the Subsequently the defendant filed a special plaintiff recover of the defendant the sum of plea, that the plaintiff ought not to have and $4,391, with interest from the 24th day of June, maintain his action aforesaid against 1864, at the rate of six per cent. per annum, 67*] *him because, he says, that at the time of and costs of suit.” making the supposed contract and promise in Judgment having been rendered, the defendthe declaration mentioned, war existed between ant moved the court to arrest the same and the United States and the Confederate States, grant him a new trial, alleging for, cause that and that the plaintiff and the testator of the the judgment was contrary to the evidence and defendant were alien enemies, concluding with a the law, and in support of the motion assigned verification and a prayer for judgment. Re- for error the same causes as those stated in the sponsive to that special plea the plaintiff filed requests submitted before judgment, but the a replication denying the allegations thereof, court overruled the motion and the defendant and prayed that the same might be inquired of excepted to the ruling. by the country.
Such is the state of the record which is Three depositions were introduced by the brought here by the defendant in the subordiplaintiff to sustain the issue on his part, and he nate court. Since the cause was removed here also introduced certain receipts, four of which the losing party assigns a single cause of error, were signed by the reputed wife of the dece- which is that the circuit court erred in refusing dent, and two by the contractor employed to to rule in favor of the defendant upon the quesbuild a dwelling-house for his reputed wife and tions of law as requested, and in ruling to the children. Taken together, these proofs tend contrary thereof. strongly to prove that the decedent was indebt- Much discussion of the motion for new trial ed to the plaintiff in the sum of $4,390, as | is unnecessary, as the motion is one addressed found by the circuit court.
to the discretion of the *court, in respect [*69 Countervailing evidence was introduced by to which the ruling of the circuit court cannot the defendant consisting of five depositions, å be reviewed here upon a writ of error, nor in deed from the decedent to his reputed wife for any other mode. Nor can it make any differher life, remainder to her six children, and the ence in this case that the motion for new trial will of the testator with the probate thereof, the was blended with one to arrest the judgment, Virginia Ordinance of Secession, and an ordi- as such a motion ought regularly to be made benance of the State requiring the Governor to fore the judgment is entered. Motions in arrest call volunteers into the service of the State to at common law were made after verdict and berepel invasion and to protect the citizens of the fore judgment, and it is quite clear that the reState in the emergency, and ten other ordinan- fusal to grant such a motion after judgment, in ces passed by that State during the rebellion. case where the finding of the circuit court is All of the testimony introduced on the one side general, cannot be regarded as a ruling made in and the other being set forth at large in what is the progress of the trial. denominated in the transcript a bill of excep- Nothing remains to be considered except the tions, filling thirty-seven pages of the transcript. requests for rulings presented by the defendant
None of the evidence introduced by the plain before judgment. tiff was objected to at the time, nor is any part Beyond all doubt the only effect of the exof it made the subject of an exception, nor was ception to the refusal of the court to grant the any request made by the defendant at the close fifth request, if the exception is admitted to be of the plaintiff's case for a ruling adverse to well taken, will be to require the court here to the right of the plaintiff to recover. On the review the finding of the circuit court in a case
where the finding is general, and where it is un
[No. 542.] accompanied by any authorized statement of the facts, which it is plain this court cannot do, Submitted Dec. 22, 1873. Decided Jan. 12, 1874. for the reasons given in the opinion of the court in the case of Ins. Co. v. Folsom, 18 Wall., 237,
A o 21 L. ed. 827, decided at the present term. Our ed States for the District of Minnesota. decision in that case was, that in a case where The case is stated by the court. issues of fact are submitted to the circuit court Mr. W. P. Clough, for appellant: and the finding is general, nothing is open to re- The ordinary legal effect of the covenants of view by the losing party under a writ of error warranty which Pepin and French respectively except the rulings of the circuit court in the held—the former by his deed from Poncin, and progress of the trial, and that the phrase "rul the latter by his deed from Pepin, at the time ings of the court in the progress of the trial” of acquirement of title by Poncin, cannot be does not include the general finding of the cir- open to dispute. The nature of the obligations cuit court nor the conclusions of the circuit of each covenantor to each covenantee was that, court embodied in such general finding, which in accordance with the tenor of the covenant, certainly disposes of the exceptions to the re- the former should maintain the latter in quiet fusals of the circuit court to decide and rule as enjoyment of the premises to which the coverequested in the first four prayers presented by nant related, free from molestation by any the defendant, as it is clear that those excep- claiming under title paramount; that if the tions seek to review certain conclusions of the covenantor should be unable to perform his circuit court which are necessarily embodied in covenant specifically, then he should compenthe general finding of the circuit court.
sate the covenantee in damages; and if the cove70*] *Opposed to that it may be suggested nantor should at any time afterward acquire that the judgment shows that interest is al. | any title to the premises not in him at the date lowed but the answer to that is that neither the of the covenant, that such title should at once, finding nor the judgment shows anything in by legal operation, inure to the covenantee, and regard to the principal except the amount become vested in him. awarded to the plaintiff. Nothing can be in- Irvine v. Irvine, 9 Wall., 617, 19 L. ed. 800; ferred from the declaration, to support the de- Rawle, Cov., 4th ed., 390, and cases cited; Bk. fense of illegality, as it contains only the mon- v. Mersereau, 3 Barb. Ch., 528; notes to Duchey counts, nor from the bill of particulars filed ess of Kingston's Case, 2 Sm. L. Cas. in the case, as it gives only the dates of the By virtue of the operation of the latter branch payments and makes no reference to the date of of the covenantor's obligation, in order to sat. the contract. Support to the defense is entire isfy Poncin's covenant to Pepin, Poncin's esly wanting, without resorting to the evidence tate in the one hundred acres at once inured to, as reported in the bill of exceptions, which in- and vested in, Pepin; and, in order to satisfy eludes all that was introduced on both sides Pepin's covenant to French, Pepin's estate so and is unaccompanied by any special finding of received from Poncin, at once inured to, and the facts. Issues of fact cannot be found by vested, in French. this court, as the Act of Congress requires that But when the title had thus arrived in such issues shall be found by the circuit court. French, it remained in him, for want of any reConsequently there can be no review of the find. lations to the Elfelts, upon which the law could ing of the circuit court where the finding is gen-operate to carry it to them. As has been before eral, nor of the conclusions of the circuit court remarked, French was under no obligation as to embodied in the general finding.
the Elfelts' title in the land. He had not coveJudgment affirmed.
nanted 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, WILLIAM M. MCCARTHY, Appt., in law as well as in fact, to the estate, if any
which French had at the date of his quitclaim CHARLES A. MANN et al.
deed to the Elfelts. As to all future estates or
! | interest, he and they were strangers. (See S. C., 19 Wall., 20-32.)
No rule of law is better settled than that
subsequently acquired interests are wholly unVoid entry for land—re-instatement of_rights affected by deeds of mere release without cove. of grantees.
nants, or without recitals of estate in the gran:
tor. Van Rensselaer v. Kearney, 11 How., 297; 1. Where an entry for land was void and was set aside by the Commissioners of the Land Office, the Rawle, Cov., 4th ed., 390, and cases cited. l'nited States held the land as if no entry had been Since, then, the operation of ordinary legal made. Beink the absolute owner, it could grant principles failed to carry the title to the one it hipon such terms and conditions as Congress hundred acres any further than to French, it might prescribe.
2. Where the Act of Congress declared, that the must have remained in him until he granted it entry should be re-instated as of its original date, away by sufficient deed of conveyance, which he and'a patent should issue to the person who en did to furber afterwards, in 1856. terer the land, and that the title should inure to the benefit of his grantees as he should have con- We are now brought to consider whether the vered the land: by his grantees was meant those ordinary rules of law did, in fact, govern in this claiming title under him.
case, or to what extent, if to any, the passage 3. When he paid his money and procured a certificate of ertry, pursuant to the Act, an equity of title from Poncin to the party or parties in rested in each of those who would have held it it whom it ultimately vested, was controlled and the original entry bad been, valid, and when the guided by force of the Act of Congress itself. patent issued the legal title vested in the same parties.
Appellant's position upon this point is, that