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Tbe 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

jurisdiction in the premises. that the defendant is the consul of a foreign govern

We proceed then to inquire, whether under the ment.

Constitution and laws of the United States, a Circuit The alienage of a defendant is not to be presumed from the 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 IN N 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 of the United States shall extend

* * to all George H. Forster, for plaiutiff in error.

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

State and foreign citizens or subjects; that “in all

cases affecting ambassadors, other publio ministers HABLAN, 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 complaint, and in addition, by way of counter-claim, asks agaiust consuls or vice-consuls.” except for offenses of

a certain character; this court with " original, but not judgment against the plaintiff for certain sums. To exclusive, jurisdiction of all suits *

* 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. The assignments of error question the jurisdiction members participated in

affirmance, by the first Congress-many of whose

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 consul 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 affectiug such representatives of foreign governments. soit in a Circuit Court of the United States. To this

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 cait Courts may take cognizance only by reason of

this court, and the district judge. It was an indictthe 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, T id. 646.

in virtue of the constitutional grant to it of original Mach more therefore will we refuse to determine on the merits, and will reverse on the point of jurisdic- sive jurisdiction of the prosecution against him. Mr.

jurisdiction in all cases affecting consuls, bad exclution, cases where the record shows affirmatively that Justice Wilson and the district judge concurred in they are of a class which the statute excludes altogether from the cognizance of the Circuit Courts. overruling this objection. They were of opinion that

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 in particular courts is the privilege, not of the person

sented, upon the ground that the word original, in the

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

exclusive. The indictment was sustained, and the deeriment he represents. It was so decided in Davis v. Packard, 7 Pet. 284. While practically it may be of no Jay presided, was found guilty. He was subsequently

fendant upon the final trial, at which Chief Justice consequence whether original jurisdiction of suits against consuls of foreign governments is conferred pardoned on condition that he would surrender his

commission and exequatur. upon one court of the United States rather than another, it is sufficient that the legislative branch of

In United States v. Ortega, 11 Wh. 467. which was a criminal prosecution, in a ('ircuit 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 origithe 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 legiswas 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 Taney, in Gittings v. Craw- had jurisdiction of suits to which an alien was a party, ford, Tanes'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 had 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 and 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 se of the several States, of all suits against consuls and Congress was not expressly prohibited from giving vice-cousuls, except for certain offenses mentioned in original jurisdiction in cases affecting consuls to be the act. The jurisdiction of the State courts was de- inferior judicial tribunals of the United States, peither nied because-and no other reason was assigned- public 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 reason which probably would not have been given and 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 confer concurrent original jurisdiction, power in the cases where origiual 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 affecting 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 jurisdieficant 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, 1 Cr. and none that import a design to exclude the subordi137, 821 ; Cohens y. Virginia, 6 Wh. 264, and Osborn v. nate 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 pressions 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 hare 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 eveu 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 Rerised 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 * * of all suits against buls-was amenable to a suit in the Circuit Court consuls or vice-consuls,” except for certain offeuses; 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 a feudants 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 tained.

* 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 pested in the




courts of the United States in the cases and proceed- tions given to consuls of the respective nations-exings there meutioned--among which (par. 8) are “suits emptions from public service being accorded, as a genagainst ambassadors or other public 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 courts of the Public Treaties, index, title Consuls. 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 consuls or 8 Pet. 115; Bingham v. Cabot, 3 Dall. 382; Capron v. vice-consuis.

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 exerciswhich a cousul 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. trorersy between a citizen and au alien, is not de- Our couclusion 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 consal 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 cousidering 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 tbe 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 Court was without jurisdiction, unless the defendant is an alien or a citi

Mr. Justice GRAY. Mr. Justice Miller and myself zen of some State otber 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 foreign 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 getting 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 Keut, 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 “in this country, as well as When the complainant has a 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 foreigu 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 frequently arisen as to the extent to which in such cases the limitation as to actions at law apcitizeus of a country, exercising the functions of plies. Birch v. Corey, 15 N. Y. 505; Rundle v. Alliforeigu consuls, are exempt from the political and son, 34 id. 182. But assuming that the case was one municipal 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- limitations, 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, $ charging consular fuuctions here by appointment of

869; Kane v. Bloodgood, 7 Johus. Ch. 93; Huuton v. foreign governments, were subject to service in the Davis, 2 Rep. of Cas. in Chan. 44; St. John 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 cution, 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 and exemp

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

defendants from any liability. The principle decided EFIT-TRUSTEE-FRAUD IF DOES NOT PERFORM-JOINT 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. Learitt's promise tator to make a devise or bequest to him, with a de

to pay the mortgage debt was founded upon the conclared 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

effect of the decree is here the same. It auuuls ibe say so, for his silent acquiescence is otherwise a fraud. 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 considerato carry out the promise by which alone he procured

tion. Croue 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 authorities on this point are numerous. Thyun v. Thynn, 1 Vern. 296; Oidham v. Litchford, 2 Freem. 284; Reech UNITED STATES CIRCUIT COURT ABv. Kenningdale, 1 Ves. Sr. 124; Podmore v. Guming, 5

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

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

POINTED IN STATE COURT-EVDENCE-COPIES OF RECMich. 454; Williams v. Vreeland, 32 N. J. Eq. 135.

ORD.-(1) Of two courts baving 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 recognize or

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

respecting it involving substavtially 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. 516. The character of the

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

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

178; The Robert Fulton, 1 Paine, 621; Ex parte Rob. Rep. 418. It was said to consist “in the attempt to

insou, 6 McLean, 355; Board of F. Missions v. McMas. take advantage of that which has been done in per

ters, 4 Am. Law Rev. 526; Ex parte Sifford, id. 639; formance or upon the faith of the agreement while re

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

20 Am. Law Rev. 4:24; Crane v. McCoy, 1 Bond, 12); When the gift is to several as joint tenants and the

Blake v. Railroad, 6 N. B. R. 331; Levi. v. Life Ius 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.

Ins. 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, 203.

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 fore. CONTRACT-RESCISSION MIST AKE-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 Cir. GAGE.-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 Plaintitf 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. Carry), 20 How. 583; Hagan v. Lucas, 10 Pet. 100; to find fraud. Defendants claimed that they intended Freeman v. Howe, 24 Huw. 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) Toe 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. Bauk 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

praiser appointed under section 2930 of the Revised by a rescission of the formal coutract and the restora

Statutes is a quasi judicial officer, and will not be pertion to each party of what had been parted with ou its faith. Plaintiff's deed contained a covenant ou the

*19 Fed. Rep.

mitted to testify to his own neglect of duty. To permit the awards of the important tribunal which Congress has established to appraise imported merchandise, to be overthrown on the assertion of one of its members made years afterward, is clearly against public policy. It is putting a premium upon incompetency, inaccuracy and fraud. Appraisers occupy the position of quasi judicial officers; they have been aptly described as “legislative referees.” Tappan v. U.S., 2 Mason, 406; Harris v. Robinson, 4 How. 336. The merchant appraiser is presumed to be, and in fact is, the special representative of the importer, and quite naturally, as was demonstrated by the evidence in this case, is somewhat biased against the government. The examination which he is required to make may take place when he is entirely alone; its extent is largely in his discretion. What he says of it and its sufficiency no one can contradict. The government, if he is permitted to testify, is left remediless and wholly at his mercy. Cir. Ct., S. D. N. Y. February, 1884. Oelberman v. Merritt. Opinion by Coxe, J.

PATENTS-ESTOPPEL.-The inventor of a certain mechanism assigned the improvement to his employ. ers, by whom it was patented. While in the same employ he ordered a mechanism to be made which he represented as a modification of the patented invention. After leaving the service of his employers he manufactured machinery identical with what he had previously ordered to be made. Held, that he and those in privity with him were estopped to deny that the mechanism in question was covered by the patent. Cir. Ct., S. D. N. Y. January 30, 1884. Time Telegraph Co. v. Himmer. Opinion by Wallace, J.

60 id. 340. The jury is the proper tribunal to say whether the bridge was passable with the exercise of proper care and caution in driving; and if the evidence show that with reasonably prudent and cautious driving the bridge was still unsafe, and there be no evidence to the contrary, it is not error to take the case from the jury County Comrs. v. Burgess. Opinion by Irving, J.

TURNPIKE COMPANY-TOLL-GATES — CONSTRUCTION OF STATUTE AS TO ERECTION-CHARGING TOLLS.-In an action for tolls brought by one of the turnpike companies chartered by the Act of 1804, chapter 51, it was held: (1) That it was not contemplated by said act that said company should have but one toll-gate for every ten miles of its road, or that they should be located exactly ten miles apart; (2) that in view of the object of the graut it was reasonable to suppose that the Legislature intended that the power to determine the number and location of the gates should be a continuing one, to be exercised at any time, and to include the power of removing gates from one place to another. It is true the terms of the grant are to " erect and fix "the gates, and counsel for the appellee have strenuously contended that such a power, when once exercised, is exhausted, and no power, either to erect new gates or to change the location of old ones, any longer exists. This position is undoubtedly countenanced, if not sustained, by the two cases in Connecticut to which we have referred. State v. Norwalk & Dan. Turnpike Co., 10 Conn. 157; Turnpike Society v. Hosmer, 12 id. 361. But in our judgment a more reasonable view of the subject has been taken by the courts of New Hampshire and Vermont in the cases of Cheshire Turnpike v. Stevens, 10 N. H. 133, and Fowler v. Pratt, 11 Vt. 369. (3) If this question were a doubtful one then a long-established usage in this respect, which has met with the uniform and entire acquiescence of the public, may well be invoked to solve the doubt in favor of the existence of the power. That the defendant was chargeable witb tolls according to the distance between the gates, and not according to the distance on the turnpike actually travelled by him. People v. Kingston and Middletown Turnpike Co., 23 Wend. 194; Buncombe Turnpike Co. v. Mills, 10 Ired. 30; Stuart v. Rich, 1 Caines, 182; Lincoln Avenue and Niles Centre Gravel Road Co. y. Daum, 79 III. 599. Baltimore and F. Turnpike Co. v. Routzahn. Opinion by Miller, J.



NEGLIGENCE-BURDEN ON DEFENDANT TO CONTRIBUTORY-DEFECTIVE BRIDGE-QUESTION EOR JURY.-The burden of showing contributory negligence on the part of the plaintiff rests on the defendants as well in suits for injuries occasioned by defective county roads and bridges as in actions against railroad companies for injuries occasioned by them. Reed 5. Northfield, 13 Pick. 94. If there be evidence tending to show there was contributory negligence on the part of the plaintiff, it is for the jury to say whether it existed; and in such case it ought not to be ignored in the instructions to the jury. Hoyt v. City of Hudson, 41 Wis. 105. The fact that a person travelling on a poblic road knew that a bridge thereon had a hole in it, and was in an unsafe condition, is not a sufficient bar to his recovery for an injury occasioned thereby in passing over it; but he is concluded if he knew the bridge to be wholly impassable. The case of Haton v. Inbab. of Ipswich, 12 Cush. 492, is in perfect accord with Reed's case we have cited from 13 Pick. Tisdale's case, in & Metc. 392, lays down the law for a case where the road is so bad, a bridge so impassable as to make it foolhardy to attempt a passage. Farnum v. Town of Concord, 2 N H. 394, and Folsom v. Town of Underhill, 36 Vt. 581, are to the same effect. The doctrine to be extracted from all these cases is that if the defect the road or bridge be such as to make the same practically impassable, a person takes all the hazard who with such knowledge atlempts to pass over the road or bridge, and will not be redressed if he is injured. If this defect in the bridge had existed, and the county commissioners could be reasonably affected with notice of it, as the evidence indicates was the case, then their liability to the plaintiff for his injury is undeniable. Duckett's Case, 20 Md. 174; Gibson's (ase, 36 id. %, and County Comrs. of Harford Co. v. Hamilton,

*To appear in 61 Maryland Reports.

IOWA SUPREME COURT ABSTRACT. MUNICIPAL CORPORATION-SURFACE-WATER LOTS BELOW GRADE.-A municipal corporation is not liable for a failure to provide gutters and culverts sufficient to keep the surface-water from the street from overflowing lots below the established grade. The rule upon the subject is thus stated in 2 Dill. Mun. Corp. (3d ed.), $ 1051 : “There will be a liability if the direct effect of the work, particularly if it be a sewer or a drain, is to collect an increased body of water and to precipitate it on the adjoining property to its injury. But since surface-water is a common enemy which the lot-owner may fight by raising his lot to grade, or in any other proper manner, and since the municipality has the undoubted right to bring its streets to grade, and has as much power to fight surface water in its streets as the adjoining private owner, it is not ordinarily, if ever, liable for simply failing to provide culverts or gutters adequate to keep surface-water off from adjoining lots below grade, particularly if the injury would not have occurred had the lots been filled up so as to have been on a level with the street." To the end that we may not be misunderstood, we think it proper to refer briefly to certain decisious of this

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