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law in his work, that is, his right to keep his man- son, 7 Pet. 348, 393, Judge Story says: 'Nothing uscript in his strong box; for this was his only right can be clearer, both upon principle and authority, until the statute of copyright enlarged his property, than the doctrine that to make an ante-nuptial setlimiting at the same time its duration. The defend tlement void as a fraud upon creditors, it is necesant has not infringed this common-law right of the sary that both parties should concur in or have cogauthor.” But the court held otherwise, and the nizance of the intended fraud. If the settler alone musical pirate has "gone home” to think it over. intended a fraud, and the other party have no noWe never heard of a more righteous and considerate tice of it, but is innocent of it, she is not, and candecision — that is, hardly ever.

not be, affected by it.'” “ It does not appear that Mrs. Watson knew, or had any reason to believe,

that Mr. Watson was insolvent, or indebted even, NOTES OF CASES.

or that she had any knowledge of his pecuniary conTHE Supreme Court of Georgia entertain a differ- dition, except that which she admits in her answer,

that he told ordinary,” from the New York courts. The latter

he was regarded in the community as a man of are very liberal in their construction of the word in the statute for extra allowances for costs. The

property." former, in Cox v. Hillyer, February, 1880, 10 Rep.

In Pennsylvania Co. v. Miller, 35 Ohio St. 541, it 260, interpreting the phrase “extraordinary motion

was held that: (1) The implied undertaking of a or case,” in the statute concerning new trials in carrier to insure the safety of baggage does not excriminal cases, hold that it means “such as do not tend to the contents of a trunk, consisting of samordinarily occur in the transaction of human affairs, ples of merchandise, which the passenger, a travelas when a man has been convicted of murder, and ling salesman, carries to facilitate his business in it afterward turns out that the man he was charged making sales. (2) But the carrier, by taking the with having killed is still alive; or where a man has property into his charge and putting it in his warebeen convicted on the testimony of a witness who house for safe-keeping, assumes the relation to it of is afterward found guilty of perjury in giving that

an ordinary bailee, and he is bound to take such testimony, or from some providential cause, and

care of the property as a man of ordinary prudence cases of like character.” Speaking of the particu-would of his own, under like circumstances. Counlar case, they say: “The newly-discovered evidence sel cited in support of the first holding: “Macrow v. relating to the physical condition of the defendant R. R. Co., I. R. 6 Q. B. 612; Railroad Co. v. Shepperd, at the time of his trial, as well as that relating to 8 Exch. 30; Cahill v. Railroad Co., 13 C. B. 818; the main issues involved in the case on that trial, is Phelps v. Railroad Co., 19 id. 321; Wilson v. Railmerely cumulative in its character, and would hardly road Co., 56 Me. 60; 9 Wend. 85; Pardee v. Drew, de sufficient of itself to have authorized the court

25 id. 459; Hawkins v. Hoffman, 6 Hill, 586; to have set aside the verdict in an ordinary motion Stoneman v. Railroad Co., 52 N. Y. 429; Perley v. for a new trial; it is certainly not sufficient to au- Railroad Co., 65 id. 374; Sloman v. Railroad Co., thorize an extraordinary motion for a new trial to be 67 id. 208; Weeks v. Railroad Co., 72 id. 50; S. C., made.”

28 Am. Rep. 104; Jordan v. Railroad Co., 5 Cush.

69; Collins v. Railroad Co., 10 id. 506; Stimpson v. In National Exchange Bank v. Watson, 13 R. I. 78, Railroad Co., 98 Mass. 83; id. 371; Railroad the court upheld an ante-nuptial settlement as

Co. v. Shea, 66 Ill. 471; Railroad Co. v. Carrou, 73 against creditors, the grantee being innocent, al

id. 348; S. C., 24 Am. Rep. 248. To these may

be though an untrue consideration was stated, the deed

added : Alling v. Boston & Albany Railroad Co., 126 was not recorded, and the grantor made repairs and Mass. 121; S. C., 30 Am. Rep. 667. In support of improvements on the estate conveyed. They said:

the second holding, counsel cited: Cincinnati & “Marriage is deemed in law a valuable considera

Chicago R. R. v. Marcus, 38 Ill. 219; Mich. S. & N. tion. A conveyance, therefore, in consideration of

Ind. R. R. Co. v. Oehm, 56 id. 293; Camden & Ammarriage, stands upon a different footing from a vol-boy R. R. v. Baldauf, 16 Penn. St. 67; 2 Redf. Am. untary conveyance. All the authorities agree to

Railw. Cas. 267; 2 Smith and Bates' Am. Railw. this extent, at least, that a man, though indebted, Cas. 357; Minter v. Pacific R. R. Co., 41 Mo. 503; may settle a portion of his property on his intended

Butler v. Hudson River R. R. Co., 3 E. D. Smith, wife, and that in the absence of fraud, the settle- 571; Hannibal R. R. Co. v. Swift, 12 Wall. 262; ment, if no more than a reasonable provision for Bartholomeu v. St. Louis R. R., 53 Ill

. 227; 8. C., 5 the wife, will be upheld against existing as well as

Am. Rep. 45; Dexter v. Syracuse, Binghamton & Nero subsequent creditors. Campion v. Cotton, 17 Ves.

York R. R. Co., 42 N. Y. 326; Phillips v. Earl, 8 Jun. 264, 271, 272; Armfield v. Armfield, Freeman

Pick. 182; 4 Bing. 218; . Relf v. Rapp, 3 W. & S. (Miss.), 311, 316; Croft v. Arthur, 3 Des. 223, 232;

21. Buckner v. Smyth, 4 id. 371, 372; Davidson v. Graves, Riley's Eq. 232, 235-238; Magniac v. Thompson, 7 A nice question was decided by the Exchequer Pet. 348, 393; Marshall v. Morris, 16 Ga. 368, 373, Division, in Winspear v. Accident Ins. Co., 42 L. T. 374; Smith v. Allen, 5 Allen, 454, 458; Bonser v. (N. 8.) 900. The policy insured against “any perMiller, 5 Or. 110, 112.” "In Magniac v. Thomp-sonal injury caused by accidental external visible


said stream, and then and there, whilst suffering We lately paid

our compliments to Chief Justice

means, within the intention of the policy and its policy. But we do not accede to this argument; provisions, and the direct effect of such injury and we think that a case of death by drowning is a should occasion his death within three calendar case of death by accident within the meaning of the months from the happening of such injury;” it be- policy for which the defendants are liable." Huding further provided that no claim should be made dleston, B., in the principal case was not without under the policy “for any injury from any accident considerable doubt,” but “after some hesitation" unless such injury should be caused by some out- coincided with the chief baron. He observed: “It ward and visible means, of which proof satisfactory cannot be said in this case that the injury was caused to the directors could be furnished, and that the directly by the epileptic fit. It was caused by iminsurance should not extend to

any mersion in the water and the consequent suffocainjury caused by or arising from natural disease or tion which was the direct cause of the death, and weakness or exhaustion consequent upon disease, or therefore it does not come within the clause of the any medical or surgical treatment or operation ren- policy by which the directors seek to protect themdered necessary by disease; or to any death arising selves in case of the insured's death arising from from disease, although such death may have been disease or from exhaustion consequent thereupon." accelerated by accident.” Whilst the policy was in force, W., in crossing and fording a stream or brook,

OPPONENTS OF THE CODE. was seized with an epileptic fit, and fell down in the

ГЕ did

of Wisconsin, on some admirable sonal injury to occasion death other than drowning. sages in his address to the law class of the UniverHeld, that a recovery could be had by his executors. sity of his State. The learned gentleman's opinion Kelly, C. B., could not bring himself to entertain of the New York Code of Procedure, conveyed in a shadow of doubt in the matter.” The inquiry the same address, does not so much commend itself was, what was the causa causans ? "If there be a to our minds. He says: “This State is suffering meaning in words, and if the English language ad-to-day from a notable instance of unwise and unmits of a statement with a plain and grammatical hallowed tampering with the common law. The meaning of the cause of an individual's death, it is system of pleading and proceeding in the courts of to my apprehension clear that here drowning was the common law, which had grown up with generathe cause, and the only cause, of the death of the tions of lawyers and survived them, matured by the insured. The drowning may have been occasioned experience of ages, rested in the surest principles by the deceased having falling down in the water of logic and of law. It was, in some things, over from the fit of epilepsy, and that fit may have been technical. It had excrescences and absurdities -occasioned by a constitutional habit of body, mak- faults which embarrassed or impeded justice. But ing it dangerous for him to expose his limbs to the these were frailties not essential to the system, action of cold water, the one cause preceding the which might be easily weeded out from it. Elseother, and being what logicians call the causa sine where they have been, leaving the hereditary wisquá non, but for which the death would perhaps not dom, the adjudicated certainty of the system, rehave happened, but not being in the proper sense of deemed from its defects. But in several States, as the word the actual proximate cause of death. The in this, it has been arbitrarily abolished — sacrificreal causa causans in this case was the influx of water ing the essential wisdom of the system for its acciinto the deceased man's lungs, and the consequent dental faults. And under pretense of simplifying stoppage of his breath, and so he was drowned. the administration of law, and facilitating justice, Any thing which led to that, such as his being, if there has been substituted for it. a crude and mis. he were, subject to epileptic fits, or being seized chievous theory, which, attempting to dispense with with a fit while crossing the stream, would be a skill, dispenses with certainty and security, embarcausa sine quâ non. If he had not had the fit he rasses the processes of the law, unsettles much, far probably would have crossed the stream in safety, beyond its purpose, which was settled before; has but that does not make the fit the causa causans, the vastly increased litigation and its cost; has impeded actual proximate cause of his death.” The ques- justice, and added to the uncertainty of the law. tion then arose, was a death by drowning within the If it survive, it will need exposition for generations policy ? On this point, the learned judge quoted of judges, before its innovations, in all their scope from Trer v. Ry. Passengers' A88. Co., 6 H. & N. and effect, will be settled; and then it will be more 839, where Cockburn, C. J., said: “Mr. Lush in- or less of an evil, as the courts shall have given it, geniously puts it that, to be within the policy, the more or less, of likeness to the system which it disdeath must be from some vis major, from something placed. Its simplicity is a cheat. It is loose, not without; that where the cause is one that would simple. Its plainness is a fraud. It is vague, not produce immediate death without any outward plain. It makes the remcdies of the law a paradise lesion, it is not a case within the policy, and there- of doubt and ambiguity.” fore that the policy does not apply to the case of a An eminent South Carolina lawyer says, as we death by the action of water. If this be correct, learn from the Virginia Law Journal, that "the systhe case of a man who fell from the top of a high tem would convert any bar in the country into a set house, or one who fell overboard from a ship, or a of pettifoggers.” The Journal falls in with these case of suffocation by fire, would not be within the eminent authorities, but has the candor to admit


that it " knows little or nothing of these sys- rect the mis-translations of the old ? There is a

homely adage, which we should apply to all these Prof. Tyler says, in his edition of Stephens on objectors, in no disrespectful sense, that it is hard Pleading, that the “ love of innovation carried its to teach an old dog new tricks. This exactly exabolition in New York, and that other States have presses the case of the learned chief justice and the followed in this barbaric empiricism."

eminent South Carolina gentleman. All such laudaJudge Cooley says that the “works on common- tores temporis acti may as well recognize the fact, law pleading are not superseded by the new codes however, that the reform of law is not to stand still which have been introduced in so many States. to save them the trouble of learning new lessons in After a trial of the code system for many years, its their old age. This horrible Juggernaut-car of codfriends must confess that there is something more ification and simplification is going right along, let than form in the old system of pleading, and that them wring their hands and throw themselves under the lawyer who has learned to state his cause in a the wheels as they will. In view of the experience logical manner after the rules laid down by Stephens and approval of thirty years and the constantlyand Gould is better prepared to draw a pleading un- growing approval and adoption of the new system, der the Code which will stand the test of demurrer, the wails of these learned gentlemen are, not to put than the man who without that training undertakes too fine a point upon it, simply ludicrous. to tell his story to the court as he might tell it to a The trouble with all these objectors is that they neighbor, and who never having accustomed him-obstinately and persistently shut their eyes to the self to a strict and logical presentation of precise requirements of the Code, and misconstrue and misfacts which constitute the legal cause of action or represent it. We agree with Judge Cooley that a the legal defense, is in danger of stating so much lawyer, experienced under the old system, is a betor so little as to leave his rights in doubt on his own ter pleader under the new than one who “undershowing."

takes to tell his story as he might tell it to a neighMr. George F. Moore, of Alabama, in an able ad- bor," or as Mr. O'Conor says, as an old woman tells dress on Code Pleading and Practice in Alabama, it to her lawyer. But this kind of story-telling is not while he disagrees with Prof. Tyler, agrees with what the Code requires, and New York lawyers have Judge Cooley, but in criticizing a compromise sys- learned the fact, and have successfully conformed tem, such as is recommended by Chief Justice themselves to the situation. The following is Chief Ryan, says:

" We have now neither the common- Justice Ryan's “paradise of doubt and ambiguity": law system of pleading nor a Code of Procedure “ The complaint must contain ' a plain and concise such as prevails in New York.

Our system is genu

statement of the facts, constituting a cause of acine hybrid — the offspring of demagoguery and tion, without unnecessary repetition. The answer, timidity. Too timid to take the reformed codes, in addition to denials, may set up counter-claims our codifiers only adopted so much of them as suf-'in ordinary and concise language, without repetificed to appease the innovators.”

tion.' The plaintiff may compel a sworn answer, We would suggest to the violent opponents of the by verifying the complaint. In considering pleadNew York Code that they are exaggerating the vir- ings for the purpose of determining their effect, tues of the old and the vices of the new system. If they shall be liberally construed, with a view of any thing tended to make a pettifogger of a lawyer, substantial justice between the parties. If pleadit was the verbal subtleties and tricks of the old ings are so indefinite or uncertain that the precise system of special pleading. New York lawyers are nature of the charge or defense is not apparent, the not “a set of pettifoggers.” English lawyers do court may require them to be made definite or cernot think themselves in danger of becoming “a set tain by amendment.' No variance between pleadof pettifoggers.” This sort of talk sounds strange ings and proof is material, “unless it actually have to lawyers who have lost their case because they had misled the adverse party to his prejudice;' and declared in trespass instead of trespass on the case; even then the court may order the pleading to be who had erroneously concluded to the country; or amended, upon such terms as shall be just.' The who, like Bryant, had not made proper inuendoes party may amend his own pleading under certain in a declaration for slander. This was the true pet- circumstances and in certain particulars, as a matter tifoggery. Our old Code was clearly expounded in of course, and the court may always, on motion, less than a “generation," and the new one seems to amend the pleading 'in furtherance of justice and need and to receive but little exposition. This

on proper terms. And finally, the court shall, in work should inure to the benefit of all States adopt- every stage of an action, disregard any error or deing our Code or a similar Code, and would, were it fect in the pleadings or proceedings, which shall not for obstinate judges. Our practice is almost not affect the substantial rights of the adverse perfectly settled and entirely satisfactory.

The same conservatism which characterizes Chief The New York Times well says of our Code: “It Justice Ryan would object to new modes of teach- discarded at once the perplexing sinuosities of law ing in our schools, and to a revision of the Bible. practice and the long-drawn delays of equity. In If he thinks the common law so holy, and modifica- prescribing the fusion of these two systems; in altions of it “unhallowed,” will he, we wonder, con- lowing an assignee or any real party in interest to sent to read the new Bible, which seeks to omit the sue in his own name; in abrogating forms of action, forgeries, change the awkward expressions, and cor- special pleading and fictions, and burying John Doe


and family in a common grave; in authorizing a doctrine of variance was one of the most oppressive disregard for technical and formal errors, and giv- and detestable features of the old system, as the ing liberal permission to make amendments; in re- doctrine of amendment is one of the most humane scinding the rule which forbade the testimony of a and beneficial of the new. party or interested person to be heard, and inviting To all devotees of intricate form and opponents of all who have personal knowledge of facts to tell simplicity we commend the three following extracts : what they know --it opposed nearly all the tradi- “Procedure is only the machinery of the law tions and precedents. But it won favor abroad as the channel whereby it is administered and the well as at home. Fully half the States and nearly means whereby justice is reached; and it departs all the Territories have adopted the general spirit from its proper office when it is allowed to obstruct and important characteristics of the new method, and even extinguish legal rights, instead of faciliwhile many have even re-enacted its details. It has tating them, and thus governs where it ought to been the guide in molding the practice now pursued subserve.” Lord Penzance in dissenting opinion in in most of the British Colonies, and its principles Kendall v. Hamilton, 28 W. R. 101. are well known to have been very influential in “The commercial world must, we should imframing the procedure recently established in Eng-agine, be occasionally startled by the amazing perland."

plexity of the English law upon points which are The honest truth is that word-spinning, the verbal entirely governed by judicial decision, and in relasubtleties, deceptions,evasions, and lies, called "plead-tion to matters which are of the utmost simplicity.” ing at common law,” and the tricks of lawyers in Law Times. trying to entrap judges into erroneous instructions, “We may not sacrifice the principle to the very have done much to render law tedious and expensive, form by which we are endeavoring to enforce it. and lawyers hateful to the community. Mr. Moore Principles can never be realized without forms, and gives a vivid picture of the way in which lawyers they are often inevitably embarrassed by unfitting too frequently deal with judges. He says:

16 When

ones; but still the fact that the form is for the sake the counsel are requested to read their charges, of the principles, and not the principle for the form, Brother Teazle reads his in this way: he has pre-requires that the form shall serve, not rule, the prinpared ten charges; five of them are amazingly bad, ciple, and must be adapted to its office." Forsythe three are vicious, but two are perfectly good ones. v. Wells, 41 Penn. St. 291. He reads say, three of the very bad ones. - they are

Et per contra: "In matters of technical law the refused — then one of those not quite so bad, and rule is of more importance than the reason of it." the judge also refuses that; then one of those that Chief Justice Parker, in Bloss v. Tobey, 2 Pick. 320. ought to be given -- and in the hurry of the trial the judge refuses that also; and before time is

THE CONFLICT OF TREATIES AND LAWS. given for reflection, he reads another of the very bad charges and repeats the process. This is what

BY SAMUEL T. SPEAR, D. D. is called 'catching out' the judge, as it is practiced under our system of hypothetical charges. This


REATIES made “under the authority of the United system is indeed only a weak substitute for special States," and laws of Congress enacted in pursuance pleading. One is made in the form of positive aver

of the Constitution, are in the sixth article of the Conments before the trial is had; the other in the form

stitution declared to be parts of “the supreme law of

the land," without any discrimination between them of hypotheses after the evidence is heard. No argu

as to their relative rauk. Wbat then would be the legal ment is heard on these charges, and the reports of consequence if these two parts of “the supreme law the Supreme Court show that the giving and refu- should be in such couflict with each other that both sal of charges on the ground of their tendency to

could not operate as supreme laws at the same time mislead the jury is one of the most common sources

and among the same people? This question supposes

that the subject-matter involved is essentially the of error in the trial of causes, and hence of great

same, and also that the treaty power and the legislatire delay and injustice. Great numbers of charges are power of Congress are equally applicable to it. The requested, and a general charge is given by the question has more than a speculative interest, since in court. The jury get in a maze, and the result is, as several instances it has been practically necessary to every lawyer may know, who will take the trouble answer it.

Mr. Madison, in 1791, gave his opinion as follows: to inquire, that very frequently the jury does not

“Treaties,as I understand the Constitution are made sueven read the charges." This part of a trial is gen

preme over the constitutions and laws of the particular erally a struggle of wits between bench and bar. States, and, like a subsequent law of the United States,

Perhaps the liberty of amendment is carried to over pre-existing laws of the United States, provided, an unusual extreme in Alabama, but unless so, we

however, that the treaty be within the prerogative of should be surprised at these words of Mr. Moore:

making treaties, which, no doubt, has certain limits."

Writings of Madison, vol. 1, p. 524. “Tbis liberty of amendment is a Pandora's-box for

Alexander Hamilton says: “It is a question among any system of pleading. No language is strong some theoretical writers, whether a treaty can repeal enough to characterize its evil effects. It is a can- pre-existing laws. This question must always be ancer in the body of our system of pleading, and in swered by the particular form of government of each curable except by the use of the knife. The court

nation. In our Constitution, which gives ipso facto

the force of law to treaties, making them equally with permits the amendment, defendant is surprised and

the acts of Congress the supreme law of the land, a another continuance and trial is the result.” The treaty must necessarily repeal antecedent law contrary

to it, according to the legal maxim that leges posteriores that the question as to this property was still in conpriores contrarias abrogant.Works of Hamilton, troversy, and therefore not“ definitely " settled in the vol. 7, p. 512.

sense of the treaty, said that in “this case the court Mr. Rawle, in his treatise on the Constitution, p. 56, must decide according to the existing laws, and if it be refers to treaties as "being, next to the Constitution, necessary, to set aside a judgment lawful when renthe supreme law of the land," and as prevailing "over dered, but which cannot be affirmed but in violation all State laws, State constitutions, and acts of Con- of law," namely, the treaty with France. The treaty gress." P. 59. “The immediate operation of the was in effect beld to (repeal the law under which the treaty," he says, “must therefore be to overrule all condemnation was pronounced, nullifying all the proexisting legislative acts inconsistent with its provis-ceedings in the courts below, though valid at the time, ions." He, however, admits that Congress “may pass The treaty being subsequent to the law and a part of subsequent laws, qualifying, altering, or even wholly “the supreme law of the land," had established anannulling a treaty."

other and different rule for the guidance of the court. Attorney-General Crittenden, 5 Op. Att.-Gen. 345, Proceeding under this rule, the court ordered the says: "An act of Congress, then, is as much a supreme Peggy to be restored. law of the land as a treaty. They are placed on the In Foster v. Neilson, 2 Pet. 253, Chief Justice Marsame footing, and no preference or superiority is given shall said that a treaty is “to be regarded as equivato one over the other. The last expression, then, of lent to an act of the Legislature whenever it operates the law-giving power must prevail; and just for the of itself without the aid of any legislative provision." same reason, and on the same principle, that a subse- And, in applying this principle, he further said that if quent act must prevail and have effect, though incon- the treaty of 1818 with Spain had directly operated on sistent with a prior act, so must an act of Congress the subject-matter before the court, it “would have have effect, though inconsistent with a prior treaty." repealed those acts of Congress which were repuguant

Attorney-General Cushing, 6 Op. Att.-Gen. 293, says: to it," and consequently furnished the rule for deciding A treaty, assuming it to be made conformably to the the case. The power of a treaty that acts proprio vigore Constitution, in substance and form, has the effect of upon the question involved without legislative aid, to repealing, under the general conditions of the legal repeal an existing law of Congress preceding it but indoctrine that leges posteriores priores contrarius abro- consistent with it, is here distinctly affirmed. gant, all pre-existing Federal laws in conflict with it, In The Clinton Bridge, 1 Wool. 150, the question whether unwritten, as the law of nations, of admiralty, arose, whether the act of Congress of February 27, and common law, or written, as acts of Congress.” 1867, declaring this bridge erected across the Missis

Attorney-General Ackerman, 13 Op. Att.-Gen. 357, sippi river to be “a lawful structure," and that it says: “ By the sixth article of the Constitution, treat- should "be recognized andøknown as a post route,” ies as well as statutes are laws of the land. There is was not a violation of "the obligations of certain treatnothing in the Constitution which assigns different ies between the United States and foreign nations ranks to treaties and to statutes. The Constitution which in effect declare that the navigation of the Misitself is of higher rank thau either by the very structe sissippi river shall remain freo and unmolested forure of the Government. A statute not inconsistent ever." 14 U. S. Stat. at Large, 412. with it, and a treaty not inconsistent with it, relating These treaties were urged as an objection to the vato subjects within the scope of the treaty-making lidity of the act of Congress. In reference to this power, seem to stand upon the same level, and to be of point Mr. Justice Miller said: equal validity; and as in the case of all laws emanating from equal authority, the earlier in date yields to

“We need not inquire whether the treaties referred the later."

to were designed to affect such cases as the one before

the court or not; for we are of opinion that, whatever The doctrine sustained by these opinions is that a obligation they may have imposed upon the Governtreaty made subsequently to the enactment of a law by ment, the courts possess no power to declare a statute Congress repeals the law to the extent of any incon- passed by Congress, and approved by the President, sistency between the two, and that a law enacted by

void because it may violate such obligations. QuesCongress subsequently to the making of a treaty has

tions of this class are international questions, and are

to be settled between the foreign nations interested in the same effect upon the treaty. The principle works

the treaties and the political departments of the Goveither way and with equal efficacy.

ernment. When those departments declare a treaty The first case in which the courts of this country abrogated, annulled, or modified, it is not for the judipassed upon this question is that of the United States cial branch of the Government to set it up, or assert its v. The Schooner Peggy, 1 Cranch, 103. The Peggy was

continued existence." a French armed vessel captured on the 24th of April, In Ropes et al. v. Clinch, 8 Blatchf. 304, it was claimed 1800, by an American ship authorized by the President that the sixth article of the treaty of 1832 between the of the United States to make the capture. Under the United States and Russia, providing that no higher act of Congress of July 7, 1798, she was libelled and duties shall be imposed on the importation into the condemned as a lawful prize in the District Court of United States of any article, being the produce or the United States for Connecticut, and the decree was manufacture of Russia, than are or shall be payable on subsequently confirmed by the Circuit Court. 1 U. S. the like article, being the produce or manufacture of Stat. at Large, 578.

any other foreign country, was violated by the act of The case was carried by appeal to the Supreme Court Congress of August 5, 1861, imposing a duty of forty of the United States, and while it was there pending dollars per ton on unmanufactured Russian hemp, the United States made a treaty with France, the while the duty on Manilla and other hemps of India fourth article of which provided that “property cap- was only twenty-five dollars per ton. 8 U. S. Stat. at tured and not yet definitely condemned, or which may Large, 444, and 12 U. S. Stat, at Large, 291. The duty be captured before the exchange of ratifications (con- on the former kind of hemp being exacted by the coltraband goods destined to an enemy's port excepted), lector at the port of New York, as prescribed by the shall be mutually restored on the following proofs of law, and paid under protest, as being contrary to the ownership," etc. 8 U. S. Stat. at Large, 178.

treaty with Russia, a suit was brought by the plaintiffs The condemnation of the Peggy was by the Supreme against the collector, to recover the excess of duties Court regarded as lawful at the time of the decree, yet beyond twenty-five dollars per ton. This raised the a treaty having intervened before the final disposal of question whether the law or the treaty furnished the the case, and that treaty having changed the rule of rule for the guidance of the court. law in application to it, Chief Justice Marshall holding In regard to this point Judge Woodruff said:

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