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The jurisdiction of the Circuit Courts of the United States of the government has invested particular courts with

suits by citizens against aliens is not defeated by the fact
that the defendant is the consul of a foreign govern-

jurisdiction in the premises.

We proceed then to inquire, whether under the ment. The alienage of a defendant is not to be presumed from the

Constitution and laws of the United States, a Circuit mere fact that he is the consul, in this country, of a

Court may, under any circumstances, hear and deforeign government,

termine a suit against the consul of a foreign govern

ment; in other words, whether other courts have error to the Circuit Court of the United States | been invested with exclusive jurisdiction of such

for the Southern District of New York. The opin- / suits. ion states the case.

The Constitution declares that “the judicial power George H. Forster, for plaintiff in error.

of the United States shall extend

to all

cases affecting ambassadors or other public ministers B. F. Tracy and Wm. C. Dellitt, for defendant in and consuls;" to coutroversies between citizens of a error

State and foreign citizens or subjects; that “ in all

cases affecting ambassadors, other publio ministers HARLAN, J. This action was brought in the Circuit and consuls, * the Supreme Court shall have Court of the United States for the Southern District original jurisdiction;" and that in all other cases of New York. The plaintiff, Preston, is a citizen of previously mentioned in the same clause “the Supreme that State, while the defendant is the consul, at the Court shall have appellate jurisdiction, both as to law port of New York, for the Kingdom of Norway and

and fact, with such exceptions and under such regulaSweden.

tions as the Congress shall make." The object of the action is to recover damages for

The judiciary act of 1789 invested the District the alleged unlawful conversion by defendant, to his Courts of the United States with “jurisdiction, exown use, of certain articles of merchandise. The clusively of the courts of the several States, of all suits answer denies the material allegations of the com

against consuls or vice-consuls," except for offenses of plaint, and in addition, by way of counter-claim, asks judgment against the plaintiff for certain sums. To exclusive, jurisdiction of all suits

a certain character; this court with “ original, but uot

* in which a the counter-claim a replication was filed, and a trial

consul or vice-consul shall be a party; "and the Cirhad before a jury, which resulted in a verdict in

cuit Courts with jurisdiction of civil suits in which an favor of plaintiff for $7,313.10. For that amount judg- alien is a party. 1 Stat. 76-80. In this act we have an ment was entered against the defendant.

affirmance, by the first Congress-many of whose The assignments of error question the jurisdiction members participated in the convention which of the Circuit Court, under the Constitution and the laws of the United States, to hear and deter- adopted the Constitution, and were therefore convers

ant with the purposes of its framers-of the principle mine any suit whatever brought against the consul of

that the original jurisdiction of this court of cases in a foreign government.

which a cousul or vice-consul is a party, is not necesSome reference was made in argument to the fact sarily exclusive, and that the subordinate courts of that the defendant did not in the court below plead the Union may be invested with jurisdiction of cases exemption, by virtue of his official character, from suit in a Circuit Court of the United States. To this affecting such representatives of foreign governments.

On a question of constitutional construction, this fact it is sufficieut to reply that this court must, from its

is entitled to great weight. own inspection of the record, determine whether a

Very early after the passage of that act, the case of suit against a person holding the position of consul of

United States v. Ravara, 2 Dall. 297, was tried in the a foreign government is excluded from the jurisdic- Circuit Court of the United States for the District of tion of the Circuit Courts. In cases of which the Cir. Pennsylvania, before Justices Wilson and Iredell of cuit Courts may take cognizauce only by reasou of

this court, and the district judge. It was an indict. the citizenship of the parties, this court, as its decis

ment against a consul for a misdemeanor of which, it ions indicate, has except under special circumstances

was claimed, the Circuit Court had jurisdiction under declined to express any opinion upon the merits on

the eleventh section of the judiciary act, giving Cirappeal or writ of error, where the record does not af

cuit Courts “exclusive cognizance of all crimes and firmatively show jurisdiction in the court below; this

offenses cognizable under the authority of the United because the courts of the Union, being courts of limi- States," except where that act “otherwise provides, ted jurisdiction, the presumption, in every stage of

or the laws of the United States shall otherwise direct, the cause, is that it is without their jurisdiction unless

and concurrent jurisdiction with the District Courts the contrary appears from the record.

Grace v

of the crimes and offenses cognizable therein." In beAmerican Insurance Co., 109 U. S. 283; Robertson v.

half of the accused it was contended that this court, Cease, 97 id. 646.

in virtue of the constitutional grant to it of original Much more therefore will we refuse to determine on

jurisdiction in all cases affecting consuls, had excluthe merits, and will reverse on the point of jurisdic- sive jurisdiction of the prosecution against him. Mr. tion, cases where the record shows affirmatively that Justice Wilson and the distriot judge concurred in they are of a class which the statute excludes overruling this objection. They were of opinion that altogether from the cognizance of the Circuit Courts.

although the Constitution invested this court with If this were not so it would be in the power of the original jurisdiction in cases affecting consuls, it was parties by negligence or design to invest those courts

competent for Congress to confer concurrent jurisdicwith a jurisdiction expressly denied to them. To

tion, in those cases, upon such inferior courts as these considerations it may be added, that the exemp. might, by law, be established. Mr. Justice Iredell distion of the consul of a foreign government from suit sented, upon the ground that the word original, in the in particular courts is the privilege, not of the person

clause of the Constitutiou under examination, meant who happens to fill that office, but of the State or gove

exclusive. The indictment was sustained, and the deernment he represents. It was so decided in Davis v. Packard, 7 Pet. 284. While practically it may be of no

fendant upon the final trial, at which Chief Justice consequence whether original jurisdiction of suits Jay presided, was found guilty. He was subsequently

pardoued on coudition that he would surrender his agaiust consuls of foreign governments is conferred

commission and exequatur. upon one court of the United States rather than

In United States v. Ortega, 11 Wh. 467, which was a another, it is sufficient that the legislative branch of

criminal prosecution, in a Circuit Court of the United

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States, for the offense of offering personal violence to tion was carefully considered by Mr. Justice Nelson,
a public minister, contrary to the law of nations and who again held that the constitutional grant of origi-
the act of Congress, one of the questions certified for nal jurisdiction to this court in cases affecting consuls;
decision was whether the jurisdiction conferred by the legislative grant in the act of 1789 to this court of
the Constitution upon this court, in cases affecting original but not exclusive jurisdiction of suits in
ambassadors or other public ministers, and consuls, which a consul or vice-consul is a party; and the legis-
was not only original but exclusive of the Circuit latiye grant of jurisdiction to the District Courts, ex-
Courts, But its decision was waived and the case de- clusive of the State courts, of suits against consuls or
termined upon another ground. Of that case it was vice-consuls, did not prevent the Circuit Courts, which
remarked by Chief Justice Tapey, in Gittings v. Craw- had jurisdiction of suits to which an alien was a party,
ford, Taney's Dec. 5, that an expression of opinion from taking cognizance of a suit brought by a citizen
upon that question would not have been waived bad against an alien, albeit the latter was, at the time, the
the court regarded it as settled by previous decis- consul of a foreign government.
ions.

In Gittings v. Crawford, Taney's Dec. 1, which was In Davis v. Packard, ubi supra, upon error to the a suit upon a promissory note brought in the District court for the correction of errors of the State of New Court of the United States for Maryland, by a citizen York, the precise question presented was whether, of that State against a consul of Great Britain, the under the Constitution aud laws of the United States, point was made in the Circuit Court on writ of error a State court could take jurisdiction of civil suits that by the Constitution of the United States this against foreign consuls. It was determined in the court had exclusive jurisdiction of such cases. negative upon the ground that by the ninth section of The former adjudications of this and other courts of the act of 1789, jurisdiction was given to the District the Union were there examined, and the conclusion Courts of the United States, exclusively of the courts reached-and in that conclusion we concur—that as of the several States, of all suits against consuls and Congress was not expressly prohibited from giving vice-cousuls, except for certaiu offenses mentioned in

origival jurisdiction in cases affecting consuls to the the act. The jurisdiction of the State courts was de- inferior judicial tribunals of the United States, neither wied because--and no other reason was assigned-publio policy nor convenience would justify the court jurisdiction had been given to the District Courto of in implying such prohibition, and upon such implicathe United States exclusively of the former courts; a tion, pronounce the act of 1789 to be unconstitutional reasou which probably would not have been given aud void. Said Chief Justice Taney: “If the arrangehad the court, as then organized, supposed that the ment and classification of the subjects of jurisdiction constitutional grant of original jurisdiction to this into appellate and original, as respects the Supreme court, in all cases affecting consuls, deprived Congress Court, do not exclude that tribunal from appellate of power to coufer concurreut original jurisdiction, power in the cases where original jurisdiction is in such cases, upon the subordinate courts of the granted, can it be right, from the same clause, to imUnion. It is not to be supposed that the clause of the ply words of exclusion as respects other courts whose Constitution giving original jurisdiction to this court, jurisdiction is not there limited or prescribed, but left in cases atfecting consuls, was overlooked, and] there. for the future regulation of Congress? The true rule fore the decision, in that case, may be regarded as an in this case is, I think, the rule which is constantly affirmance of the constitutionality of the act of 1789, applied to ordinary acts of legislation, in which the giving original jurisdiction in such cases, also to Dis

grant of jurisdiction over a certain subject-matter to trict Courts of the United States. And it is a signi- one court does not, of itself, imply that that jurisdicficant fact, that in the decision in Davis v. Packard, tion is to be exclusive. In the clause in question, Chief Justice Marshall concurred, although he had there is nothing but mere affirmative words of grant, delivered the judgments in Marbury v. Madison, Cr. and none that import a design to exclude the subordi137, 821; Cohens v. Virginia, 6 Wh. 264, and Osborn v.

pate jurisdiction of other courts of the United States United States Bank. 9 id. 738, some of the general ex- on the same subject-matter.” Taney's Dec. 9. After pressious in which are not infrequently cited in sup- alluding to the fact that the position of consul of a port of the broad proposition that the jurisdiction of foreign government is sometimes filled by one of our this court is made by the Constitution exclusive of own citizens, he observes : "It could hardly have every other court, in all cases of which by that instru- been the intention of the statesmen who framed our ment it is given original jurisdiction. It may also be Constitution to require that one of our citizens who observed that of the seven justices who concurred in had a petty claim of even less than five dollars against the judgment in Davis v. Packard, five participated another citizen, who had been clothed by some foreign in the decision of Osborn v. United States Bank.

government with the consular office, should be comIn St. Luke's Hospital v. Barclay, 3 Blatchf. 259, pelled to go into the Supremo Court to have a jury which was a suit in equity in the Circuit Court of the summoned in order to enable him to recover it; nor United States for the Southern District of New York, could it have been intended, that the time of that the question was distinctly raised whether the consu- court, with all its high duties to perform, should be lar character of the, alien defendant exempted him taken up with the trial of every petty offense that from the jurisdiction of the Circuit Courts. The might be committed by a consul in any part of the jurisdiction of the Circuit Court was maintained, the

United States; that consul too being often one of our opinion of the court being that the jurisdiction of the

own citizens.'' District Courts was made by statute exclusive only of Such was the state of the law when the Revised the State courts, and that under the 11th section of Statutes of the United States went into operation. By the act of 1789, the defendant being an alien--no ex

section 563 it is provided that the District Courts ception being made therein as to those who were con- shall have jurisdiction to of all suits against Buls-was amenable to a suit in the Circuit Court

consuls or vice-consuls,' except for certain offenses; brought by a citizen. Subsequently the question was by sectiou 629, that “the Circuit Courts shall have reargued before Mr. Justice Nelson and the district original jurisdiction" of certain classes of cases, judge, and the proposition was pressed that the de- among which are civil suits in which an alien is & fendants could not be sued except in this court or in party; by section 687, that this court shall have some District Court. But the former ruling was sus- "original but not exclusive jurisdiction of all suits tajued.

* in which a consul or vice-consul is a party;" In Graham v. Stucken, 4 Blatchf. 50, the same ques- and by section 711, that the jurisdiction vested in the

*

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courts of the United States in the cases and proceed- tions given to consuls of the respective nations-ex:
ings there mentioned--among which (par. 8) are “suits emptions from public service being accorded, as a gen-
against ambassadors or other publio ministers or their eral rule, only to a consul who is a citizen or subject of
domestics, or domestic servants, or against consuls or the country he represents. Rev. Stat. of Dist. Col.,
vice-consuls'-shall be exclusive of the conrts of the Public Treaties, index, title" Consule."
several States. But by the act of February 18, 1875, But it seems unnecessary to pursue the subject
that part of section 711, last quoted, was repealed (Sup. further. When the jurisdiction of the Circuit Court
R. S., p. 138, par. 18); so that by the existing law depends upon the alienage of one of the parties, the
there is no statutory provision, which in terms makes fact of alienage must appear affirmatively either in the
the jurisdiction of the courts of the United States ex- pleadings or elsewhere in the record. Brown v. Keene,
clusive of the State courts in suits against cousuls or 8 Pet. 115; Bingham v. Cabot, 3 Dall. 382; Capron v.
vice-consuls.

Vanorden, 2 Cr. 126; Robertson v. Cease, supra. It
It is thus seen that neither the Constitution nor any cannot be inferred, argumentatively, from the single
act of Congress defining the powers of the courts of circumstance that such person holds and exercises the
the United States has made the jurisdiction of this office of consul of a foreign government. Neither the
court, or of the District Courts, exclusive of the Cir- | adjudged cases nor the practice of this government
cuit Courts in suits brought against persons who hold prevent an American citizen-not holding an office of
the position of consul, or in suits or proceedings in profit or trust under the United States-from exercis-
which a consul is a party. The jurisdiction of the lat- ing in this country the office of consul of a foreign
ter courts, conferred without qualification, of a con- government.
troversy between a citizen and an alien, is not de- Our conclusion is, that as it does not appear from
feated by the fact that the alien happens to be the the record that the defendant is an alien, and since it
consul of a foreign government. Consequently the is consistent with the record that the defendant was
jurisdiction of the court below cannot be questioned and is a citizen of the same State with the plaintiff,
upon the ground simply that the defendant is the con- the record, as it now is, does not present a case which
sul of the Kingdom of Norway and Sweden.

the Circuit Court had authority to determine. Without But as this court and the District Courts are the therefore considering the merits of this cause, the only courts of the Union, which under the Constitu- judgment must be reversed, and the cause remanded tion or the existing statutes are invested with juris- for such further proceedings as may be consistent with diction, without reference to the citizenship of the this opinion. parties, of suits against consuls, or in which consuls

It is so ordered. are parties, and since the Circuit Cou was without jurisdiction, unless the defendant is an alien or a citi

Mr. Justice GRAY. Mr. Justice Miller and myself zen of some State other than New York, it remains to

concur in the judgment of reversal, on the ground that consider whether the record shows him to be either

the Circuit Court had no jurisdiction of the case, such citizen or an alien. There is neither averment because the record does not show that the defendant nor evidence as to his citizenship, unless the conceded was an alien, or a citizen of a different State from that fact that he is the consul of a foreign government is to

of which the plaintiff was a citizen. We express no be taken as adequate proof that he is a citizen or sub- opinion upon the question, whether if the record had ject of that government. His counsel insist that the shown that state of facts, as well as that the defendconsul of a foreigu country, discharging his duties in ant was a consul, the Circuit Court would have had this country, is in the absence of any contrary evi-jurisdiction. dence to be presumed in law to be a citizen or subject of the country he represents. This presumption, it is claimed, arises from the nature of his office and the

NEW YORK COURT OF APPEALS ABSTRACT. character of the duties he is called upon to discharge. But in our opinion, the practice of the different na- LIMITATIONS -STALE DEMAND - PRESUMPTION OF tions does not justify such presumption). “Though

PAYMENT.-It is only where there is an actual, conthe functions of consul,” says Kent, “would seem to

tinuing and subsisting trust that a trustee is precluded require that he should not be a subject of the State in from setting up the statute of limitations. Wedderwhich he resides, yet the practice of the maritime burn v. Wedderburn, 2 Keene, 749; S. C., 4 M. & C.52; powers is quite lax on this point, and it is usual, and

Portlock v. Gardner, 1 Hare, 594; Kane v. Bloodgood, thought most convenient, to appoint subjects of the

7 Johns. Ch. 39. Assuming that S. might have elected foreign country to be consuls at its ports." 1 Kent, 44. to adopt the agreement made by her husband and to In Gittings v. Crawford, ubi supra, it was said by

treat W. as trustee, that would not change the result. Chief Justice Taney that this country, as well as

When the complainant has concurrent remedy in a others, it often happens that the consular office is con

court of equity and in a court of common law, time is ferred by a foreign government on one of our own

as absolute a bar in equity as it is at law. Humbert v. citizens.” It is because of this practice that the ques

Trinity Church, 7 Paige, 195; S. C., 24 Wend. 587. And tion has frequeutly arisen as to the extent to which

in such cases the limitation as to actions at law apcitizens of a country, exercising the functions of plies. Birch v. Corey, 15 N. Y. 505; Rundle v. Alliforeign consuls, are exempt from the political and son, 34 id. 182. But assuming that the case was one mavicipal duties which are imposed upon their fellow | solely of equitable cognizance only, and that for any citizens. Halleck's International Law (London ed.),

reason the statute afforded no protection, it is the law vol. 1, ch. 11, $ 10, et seq.

of courts of equity, independent of positive legislative In an elaborate opinion by Attorney-General Cush

limitatious, that it will not entertain stale demands. ing, addressed to Secretary Marcy, the question was

Story, J., 9 Pet. 416; Kingsland v. Roberts, 2 Paige, considered whether citizens of the United States, dis

193; Platt v. Vattier, 9 Pet. 405; Perry on Trusts, S charging consular functions here by appointment of

869; Kane v. Bloodgood, 7 Jobus. Ch. 33; Huuton v. foreign governments, were subject to service in the Davis, 2 Rep. of Cas. in Chan. 44; St. Johu v. Turner, militia or as jurors. 8 Opin. Attys-Genl. 168. It was

2 Vern. 418. Independently of the statute of limitaperhaps because of the difficulties arising in deter- tions, and even if there were any obstacle to its applimining questions of this character that many of the

cation, the legal presumption of payment applied after treaties between the United States and other coun:

the lapse of such a great number of years. In the case tries define with precision the privileges aud exemp

of Bean v. Tounele, 94 N. Y, 381, lately decided in this

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court, it was held that the presumption of payment part of the grantees to pay the mortgage. Defendants after the lapse of twenty years was applicable to a sim- objected that in case of a rescission they would be left ple contract indebtedness, and in the present case liable upon the covenant to the holder of the mort. there are no facts or circumstances to rebut such pre- gage. Held, untenable; that the rights of such holder sumption. Matter of Neilly. Opinion by Rapallo, J. were wholly dependent upon an effectual transfer and [Decided April 15, 1884.]

affected by the equities between the parties, and a WILL- - ONE OBTAINING DEVISE FOR OTHER'S BEN

judgment annulling the whole transaction released EFIT-TRUSTEE-FRAUD IF DOES NOT PERFORM-JOINT

defendants from any liability. The principle decided TENANTS-PROMISE BY ONE BINDS OTHERS.-(1) Where

in Dunning v. Leavitt, 85 N. Y. 30; 39 Am. Rep. 617, a person, even by silent acquiescence, encourages a tes

fully covers the point. There Mrs. Leavitt's promise tator to make a devise or bequest to him, with a de

to pay the mortgage debt was founded upon the con. clared expectation that he will apply it for the benefit

veyance to her, but the judgment in ejectment of others, this has the force and effect of an express

brought by the Howell heirs determined that no title promise so to apply it. Walgrave v. Tebbs, 2 K. & J.

passed to her by her deed, that the land was not trans321; Schultz's Appeal, 80 Penn. St. 405. If he does not

ferred, and as a consequence that no consideration for mean to act in accord with the declared expectation

her promise to the grantor for the benefit of the mortwhich underlies and induces the devise, he is bound to

gagee remained, and so she never became liable. The say so, for his silent acquiescence is otherwise a fraud.

effect of the decree is here the same. It annuls the Russell v. . Jackson, 10 Hare, 204. Equity acts in such

deed, and adjudges that the land did not pass, and so case not because of a trust declared by the testator,

the savings bank can have no right of action upon a but because of the fraud of the legatee. For him not

promise divested by the judgment of any considera. to carry out the promise by which alone he procured

tion. Crowe v. Lewin. Opinion by Finch, J. the devise and bequest, is to perpetrate a fraud upon

[Decided April 15, 1884.)
the devisor which equity will not endure. The author-
ities on this point are numerous. Thyun v. Thyon, 1
Vern. 296; Oldham v. Litchford, 2 Freem. 284; Reech UNITED STATES CIRCUIT COURT AB-
v. Kenningdale, 1 Ves. Sr. 124; Podmore v. Gunning, 5

STRACT.*
Sim. 485; Mickleston v. Brown, 6 Ves. 51; Hoge v.
Hoge, 1 Watts, 163; Jones v. McKee, 6 Pemu. St. 425;

JURISDICTION-STATE AND FEDERAL-RECEIVER AP-
Dowd y. Tucker, 41 Conn. 197; Hooker v. Oxford, 33

POINTED IN STATE COURT-EVIDENCE-COPIES OF RECMich. 454; Williams v. Vreeland, 52 N. J. Eq. 135.

ORD.-(1) Of two courts having concurrent jurisdicThe circumstances in these cases were varied and

tion of any matters the one whose jurisdiction first atsometimes peculiar, but all of them either recoguize or

taches acquires exclusive control of all controversies enforce the general doctrine. It has been twice ap

respecting it involving substantially the same interplied in our own State. Brown v. Lynch, 1 Paige, 47 ;

ests. Chief Justice Marshall thus announced the rule Williams v. Fitch, 18 N. Y. 546. The character of the

in Smith v. McIver, 9 Wheat. 532, and it has been folfraud which justifies the equitable interference is well

lowed in many cases since. Mallett v. Dexter, 1 Curt. described in Glass y. Hurlbert, 102 Mass. 40; 3 Am.

178; The Robert Fulton, 1 Paine, 621; E.x parte RobRep. 418. It was said to consist “in the attempt to

inson, 6 McLean, 355; Board of F. Missions v. MoMastake advantage of that which has been done in per

ters, 4 Am. Law Rev. 526; Ex parte Sifford, 5 id. 659; formance or upon the faith of the agreement while re

Parsons v. Lyman, 5 Blatchf. C.C. 170; U. S. y. Wells, pudiating its obligation under cover of the statute." (2)

20 Am. Law Rev. 424; Crane v. McCoy, 1 Bond, 4:22; When the gift is to several as joint tenants and the

Blake v. Railroad, 6 N. B. R. 331; Levi. v. Life Ins. promise to carry out the declared purpose of the testa

Co., 1 Fed. Rep. 206; Hamilton v. Chouteau, 6 id. 339; tor is made by one of them it is obligatory upon all.

Ing. Co. v. University of Chicago, id. 443; Walker v. Rowbotham v. Dunnett, 8 Ch. Div. 430; Hooker v.

Flint, 7 id. 435; Wire Co. v. Wheeler, 11 id. 206; Ins. Oxford, 38 Mich. 453; Russell v. 'Jackson, 10 Hare, 205.

Co. v. Railroad, 13 id. 857; The J. W. French, id. 916; O'Hara v. O'Hara. Opinions by Finch, J.

Stout v. Lye, 103 U. S. 66. (2) Accordingly where the [Decided April 15, 1884.]

Supreme Court of New Hampshire decreed the foreCONTRACT-RESCISSION MISTAKE GRANTEE DIS- closure of a deed of trust and mortgage of a railroad, CHARGED FROM PAYMENT OF COVENANT TO PAY MORT- and the property was actually sold, held, that the CirGAGE.--In an action brought to rescind a contract for cuit Court of the United States could not entertain a the exchange of lands on the ground of fraud, the bill to enforce the operation of the road by trustees court found that plaintiff agreed to exchange his prem- for the benefit of its stockholders, although the bill ises, subject to a mortgage thereon, for four lots which was filed before the sale, and the sale when made was defendants represented that they owned, but to which declared to be subject to the result of the suit in the they had no title; they did own a parcel of land in Circuit Court. (3) The possession of a receiver is the the neighborhood of the lots, of much less value. possession of the court appointing him, and cannot be Plaintiff conveyed his premises, and received a deed divested by a court of co-ordinate jurisdiction. Taylor purporting to convey the four lots. The court refused v. Carryl, 20 How. 583; Hagan v. Lucas, 10 Pet. 100; to find fraud. Defendants claimed that they intended Freeman v. Howe, 24 How. 450; Buck v. Colbath, 3 to convey the land actually owned by them, but by Wall. 834; Walker v. Flint, 7 Fed. Rep. 435. (4) The mistake the four lots were described in their deed, admissibility of copies of a record in evidence does not and asked to have the deed reformed. Held, that render the record itself inadmissible. Cate v. Nutter, plaintiff was entitled to equitable relief whether the 24 N. H. 108; Jones v. French, 22 id. 64; U. S. Bank case was one of fraud or mistake; if the latter, the v. Benning, 4 Cranch C. C. 81. Cir. Ct., D. N. H. minds of the party never met, and no actual contract February 14, 1884. Bruce v. Manchester R.

Opinion was made; that defendants were not entitled to a re- by Clark, J. (See ante, p. 12.-ED.] formation of their deed, as plaintiff never had agreed

INTERNAL REVENUE-CUSTOM DUTIES_AWARD OF to take the premises actually owned by defendants,

APPRAISERS CANNOT BE IMPEACHED.-A merchant apand the only way the mistake could be corrected was by a rescission of the formal coutract and the restora

praiser appointed under section 2930 of the Revised tion to each party of what had been parted with on its

Statutes is a quasi judicial officer, and will not be perfaith. Plaintiff's deed contained a covenant on the

*19 Fed. Rep.

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mitted to testify to his own neglect of duty. To per- 60 id. 340. The jury is the proper tribunal to say
mit the awards of the important tribunal which Con- whether the bridge was passable with the exercise of
gress has established to appraise imported merchan- proper care and caution in driving; and if the evi-
dise, to be overthrown on the assertion of one of its dence show that with reasonably prudent and cau-
members made years afterward, is clearly against pub- tious driving the bridge was still unsafe, and there be
lic policy. It is putting a premium upon incompe- no evidence to the contrary, it is not error to take the
tency, inaccuracy and fraud. Appraisers occupy the case from the jury. County Comrs. y. Burgess. Opin-
position of quasi judicial officers; they have been ion by Irving, J.
aptly described as “legislative referees.” Tappan v.

TURNPIKE COMPANY-TOLL-GATES - CONSTRUCTION
U.S., 2 Mason, 406; Harris v. Robinson, 4 How. 336.

OF STATUTE AS TO ERECTION-CHARGING TOLLS. -In an The merchant appraiser is presumed to be, and in fact

action for tolls brought by one of the turnpike comis, the special representative of the importer, aud quite

panies cbartered by the Act of 1804, chapter 51, it naturally, as was demonstrated by the evidence in this

was held: (1) That it was not contemplated by said case, is somewhat biased against the government. The

act that said company should have but one toll-gate examination which he is required to make may take

for every ten miles of its road, or that they should be place when he is entirely alone; its exteut is largely in

located exactly ten miles apart; (2) that in view of the his discretion. What he says of it and its sufficiency

object of the grant it was reasonable to suppose that no one can contradict. The government, if he is per

the Legislature intended that the power to determine mitted to testify, is left remediless and wholly at his

the number and location of the gates should be a conmercy. Cir. Ct., S. D. N. Y. February, 1884. Oelber

tinuing one, to be exercised at any time, and to inman v. Merritt. Opinion by Coxe, J.

clude the power of removing gates from one place to PATENTS--ESTOPPEL.–The inventor of a certain another. It is true the terms of the grant are to mechanism assigned the improvement to his employ. * erect and fix” the gates, and counsel for the appellee ers, by whom it was patented. While in the same em- have strenuously contended that such a power, when ploy he ordered a mechanism to be made which he rep- once exercised, is exhausted, and no power, either to resented as a modification of the patented invention. erect new gates or to change the location of old ones, After leaving the service of his employers he manu- any longer exists. This position is undoubtedly counfactured machinery identical with what he had tenanced, if not sustained, by the two cases in Connecpreviously ordered to be made. Held, that he and ticut to which we have referred. State v. Norwalk & those in privity with him were estopped to deny that Dan. Turnpike Co., 10 Conn. 157; Turnpike Society v. the mechanism in question was covered by the patent.

Hosmer, 12 id. 361. But in our judgment a more reaCir. Ct., S. D. N. Y. January 30, 1884. Time Tele- sonable view of the subject has been taken by the graph Co. v. Himmer. Opinion by Wallace, J.

courts of New Hampshire and Vermont in the cases of Cheshire Turnpike v. Stevens, 10 N. H. 133, and Fow

ler v. Pratt, 11 Vt. 369. (3) If this question were MARYLAND SUPREME COURT ABSTRACT.* a doubtful one then a long-established usage in this

respect, which has met with the uniform and entire NEGLIGENCE-BURDEN ON DEFENDANT TO SHOW

acquiescence of the public, may well be invoked to CONTRIBUTORY-DEFECTIVE BRIDGE-QUESTION EOR

solve the doubt in favor of the existence of the power. JURY.-The burden of showing contributory negli

That the defendant was chargeable with tolls accordgence on the part of the plaintiff rests on the defend

ing to the distance between the gates, and not accordants as well in suits for injuries occasioned by defect

ing to the distance on the turnpike actually travelled ive county roads and bridges as in actions against rail

by him. People v. Kingston and Middletown Turnroad companies for injuries occasioned by them. Reed

pike Co., 23 Wend. 194; Buncombe Turnpike Co. v. v. Northfield, 13 Pick, 94. If there be evidence tend

Mills, 10 Ired. 30; Stuart v. Rich, 1 Caines, 182; Lining to show there was contributory negligence on the

celu Avenue and Niles Centre Gravel Road Co. y. part of the plaintiff, it is for the jury to say whether it

Daum, 79 III. 599. Baltimore and F. Turnpike Co. v. existed; and in such case it ought not to be ignored in

Routzahn. Opinion by Miller, J.
the instructions to the jury. Hoyt v. City of Hudson,
41 Wis. 105. The faot that a person travelling on a
public road knew that a bridge thereon had a hole in

IOIA SUPREME COURT ABSTRACT. it, and was in an unsafe condition, is not a sufficient

MUNICIPAL CORPORATION-SURFACE-WATER bar to bis recovery for an injury occasioned thereby in

BELOW GRADE.--A municipal corporation is not liable passing over it; but he is concluded if he knew the

for a failure to provide gutters and culverts sufficient bridge to be wholly impassable. The case of Haton v.

to keep the surface-water from the street from overInbab. of Ipswich, 12 Cush. 492, is in perfect accord with

flowing lots below the established grade. The rule Reed's case we have cited from 13 Pick. Tisdale's case, in

upon the subject is thus stated in 2 Dill. Mun. Corp. 8 Meto. 392, lays down the law for a case where the

(3d ed.), $ 1051 : “ There will be a liability if the direct road is so bad, a bridge so impassable as to make it fool

effect of the work, particularly if it be a sewer or a hardy to attempt a passage. Farnum v. Town of Con

drain, is to collect an increased body of water and to cord, 2 N. H. 394, and Folsom v. Town of Underhill,

precipitate it on the adjoining property to its injury. 36 Vt. 581, are to the same effect. The doctrine to be

But since surface-water is a common enemy which the extracted from all these cases is that if the defect in

lot-owner may fight by raising his lot to grade, or in the road or bridge be such as to make the same practi

any other proper manner, and since the municipality cally impassable, a person takes all the hazard who

has the undoubted right to bring its streets to grade, with such knowledge attempts to pass over the road or

and has as much power to fight surface water in its bridge, and will not be redressed if he is injured. If

streets as the adjoining private owner, it is not ordithis defect in the bridge had existed, and the county narily, if ever, liable for simply failing to provide culcommissioners could be reasonably affected with no

verts or gutters adequate to keep surface-water off tice of it, as the evidence indicates was the case, then

from adjoining lots below grade, particularly if the intheir liability to the plaintiff for his injury is undenia

jury would not have occurred had the lots been filled ble. Duckett's Case, 20 Md. 174; Gibson's (ase, 36 id.

up so as to have been on a level with the street." To 237, and County Comrs. of Harford Co. v. Hamilton,

the end that we may not be inisunderstood, we think *To appear in 61 Maryland Reports,

it proper to refer briefly to certain decisions of this

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