Abraham Clark Freeman John Proffatt.

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all the military rights, as to means and modes of prosecuting
it, which the laws of nations concede to international belliger-
ents. Among those lawful means conceded by the voluntary
law of nations are the destruction and capture of public and

Digitized by


June, 1866.] Christian County Court v. Rankin. 507

private property for benefiting the captor or weakening the
enemy. But this right is not unlimited. The modem law
of nations, not authoritatively settled and wisely recognized
throughout the civilized world, excepts from capture or de-
struction such public property as court-houses, churches, and
property of literary institutions, unless used for some military
purpose by the captor's enemy. In support of this position,
the authorities are so abundant and concurrent as to dispense
with any particular citations.

In the absence of any proof or allegation to the contrary,
the court-house in this case should be prima facie presumed
to have been, according to its dedication, kept and used for
civil purposes exclusively; and therefore, this, though not ex-
plicitly alleged in the petition, should be held as admitted by
the demurrer. If, at the time of the burning, it was used for
any military purpose, such as Federal barracks or barricades,
or the repository of Federal arms or munitions, or was occupied
by Federal troops as a temporary fortress, the destruction of it
might have been a lawful belligerent act. But if any of these
justifying facts existed, they ought to have been pleaded.
And consequently, considering, as we now must, only the suffi-
ciency of the petition, we adjudge that it shows that the burn-
ing of the court-house was unlawful and indefensible on the
plea of belligerent right. The petition does not clearly show
whether the wrongful act was done spontaneously by the
burners or under an order by a superior officer. But this is
not essential, because an unlawful act cannot be justified by
an unlawful authority or command to do it. In this both
principle and authority concur: Little v. Barreme, 2 Cranch,
170; MitcheU v. Harmony, 13 How. 115.

Then, according to the legal efiect of the petition, the appel-
lees were trespassers, and are personally responsible for the
wanton damage they did.

And why may not that responsibility be enforced by the
judiciary of the place where the wrong was done 7

Had the war been international, between two independent
sovereignties, it might be true, as argued, that for an unlawful
abuse of belligerent power by the appellees in the cause of
:heir nation, the only proper remedy would have been an
appeal to their government. But the reason for that rule does
not apply to a domestic war between the people of the same
nation, who have but one and the same national government.

Id this case the citizens of the Confederate States were still.

Digitized by


606 Chribtian County Court v. Rakkin. [Eentuckj,

nevertheless, citizens of the " United States," whose govern-
ment had never recognized the pseudo '^ Confederacy " as a
sovereign nationality, and an appeal to it by our only na-
tional government for redress for wrongs done by its soldiers
would have been not only necessary and unavailing, but also
a suicidal acknowledgment of its national sovereignty and
independence; and now, especially, since the war has closed
and stripped the revolting states of all pretense of local
nationality and independence, there is certainly no ^* Con-
federacy " to which our government, which is also their gov-
ernment, could appeal for acknowledgment and indemnity.

Consequently, there is either no remedy for the wrong or
it must be an action against the persons who did the wrong.
There must be a remedy, and of that remedy the state judi-
ciary has jurisdiction. There is nothing in the federal con-
stitution which deprives a state court of power to decide a
question of international law incidentally involved in a case
over which it has jurisdiction; and for every wrong the com-
mon law of Kentucky provides an adequate remedy. To sus-
tain this action, therefore, it is not necessary to invoke any
statutory aid.

And we are of the opinion, moreover, that the act of Feb-
ruary 22, 1864, providing " a civil remedy for injuries done
by disloyal persons" (Session Acts, pp. 120, 121), does not, so
far as it applies to *' soldiers," intentionally or constitutionally
extend to belligerent acts, but embraces only trespasses and
spoliations committed by soldiers in their own individual
right and for ^heir own personal benefit.

Wherefore, on international and common-law principles, we
adjudge that the petition in this case sets forth a good cause
of action against the appellees, and that, consequently, the
judgment of the circuit court on the demurrer was erroneous.
That judgment is therefore reversed, and the cause remanded,
with instructions to overrule the demurrer and admit the
amendment making the county of Christian a plaintiff.

SoLDUR IS NOT BouNB TO Obet HIS SoYXBEiGN bj goiag into a neighbor-
ing nation in time of peace, and there committing an nnlawfol act: People t.
McLeod, 37 Am. Dec. 328^ and note 366; see WUherepoon t. Farmen' Bamk,
ante, p. 503.

Person CoNCSBinn> in Oafturx or Amxbioan Vbssbl, nnder color of
the insurgent military anthority of a foreign province, will be responflible tc
the owner of the veseel for the damages sustained by the captore, there be-
ing no evidence of the recognition of the government of the United States

Digitized by


June, 1866.] Christian County Court v. Rankin. 509

of a state of war as existing between the insurgent province and the power
to which it belonged: Dhnond v. Petit, 46 Am. Dec 356.

LiABiLTTr 07 SoLDiEBS fOB Bbstbotikq Pbopxbtt dubino Wab. — The
right of one belligerent power, not only to coerce the other by direct force,
but also to cripple its resonrcea by the seizure or deetmction of its property,
is declared to be a necessary result of a state of war: Prize Cases, 2 Black
635, 671; and see Daw ▼. Johnson, 100 U. S. 158, 167. And nnder the law of
nation*, a belligerent is always permitted to destroy the property of the
enemy, when its destruction is a necessary conoomitant of ordinary military
action. On the other hand, deetmction is always illegitimate when no mili-
tary end is served, as when churches or public buildings not ns^ for some
military purpose are wartonly devastated: See Hall's Intemational Law, 460;
Bell V. Louisville etc R. R. Co,, 1 Bush, 404, and opinion in the principal case.
So parties to a civU war usually concede to each other belligerent rights, aa
in the case of an intemational war. The contest, though originating in re-
beUion, must, when it assumes such proportions as to be justly denominated
civil war, be recognized as entitling; both parties to the rights of war, just as
much as if it was waged between two independent nations: Prize Cases, 2
Black, 669; Ferguaon v. Loar, 5 Bush, 691; Ford v. Surget, 97 U. S. 594, 611.
Each party to such a contest is entitled to the same right of capture or de-
struction of enemy's property, and when either the capture or destruction of
property by one is lawful, it is equally lawful by the other; and if unlawful
by one, it would by equally so by the other: Bell v. Loutmille etc R. R. Co,,
1 Bush, 404; and see J<mes v. Williams, 41 Tex. 390; Smith v. BrasBelian, I
Heisk. 44; S. C, 2 Am. Rep. 678. Thus during the war between the Con-
federate States and the United States, cotton was destroyed by order of the
county provost-marshal, acting in obedience to the orders of the Confederate
commanding general, and it was held by the supreme court of Mississippi
that the agent who obeyed these orders was not liable in an action by the
owner to recover the value of the property: Ford v. Surget, 46 Miss. 130; S. C.
affirmed, 97 U. S. 594. Cotton during that war was regarded by both bel-
ligerents aa the subject of seizure and condemnation, and as foiling within
that class of property which a belligerent might destroy to prevent its falling
into the hands of the enemy and augmenting his resources: Id. ; and see Mrs.
Alexander^ Cotton, 2 WalL 420; Hajfcrqft v. United States, 22 Id. 81; Tomng
V. United States, 97 U. a 39. So it was held by the court of appeals of Ken-
tucky that one who, acting under the orders of a Confederate general, burned
the cars of a railroad, was not liable in a civil action for damages: Bell v.
Jjovisville etc R. R. Co., I Bush, 406. So it was held by the same court that
the capture of horses for the public use of the Confederate army under mili-
tary authority, express or implied, however wrongful in fact, was excusable
as a lawful exercise of a belligerent right: Price v. Poynter, 1 Id. 387. Com-
pare Beck v. Ingram, 1 Id. 355; SeUards v. Zomes, 5 Id. 90. And it is well-
settled doctrine that private property in time of war or of immediate and
impending public danger may be impressed into the public service, or may be
seized and appropriated to the public use, or may even be destroyed without
the consent of the owner, and without antecedent compensation: Taylor v.
NadimlU Railroad, 6 Cdd. 646; Drehman v. Stifel. 41 Mo. 184; Welbnan v.
Wkkerman, 44tld. 484; MiteheUv, Harmcmy, 13 How. 115; but the public dan-
ger must be imminent and impending, and the emergency in the public ser-
vice must be extreme and imperative, and such as will not admit of delay of
a resort to any other source ci supply: Id.; Farmer ▼. Lewis, 1 Bush, 66; Me-
LaugliUn v. Oreen, 50 Miss. 453; UnUed States v. Rumell, 13 WalL 623; Brit-

Digitized by


610 . Adams Express Co. v. Nock. [Kentucky;

km V, BtUler, 9 Bbktdbi, 4B6, If the power is exercised for the mere purpoM
of oppression or private gain, the party by whom or by whose order it is
exercised would nndoiibtedly be answerable: Luther ▼. Borden^ 7 How. 1, 46;
Sellards ▼. Zcme$t 5 Bosh, 02. An onlawfol taking or destmotion of private
property csnnot be justified by an unlawful order or oonmiand of a superior
officer: Hogue ▼. Peim, 3 Id. 663; Dilia ▼. Batcher, 6 Id. 607; TerriU ▼.
Rankin, 2 Id. 453» 466» citing the principal case; and see CooUdge ▼. OtOhrie^
I Flip. 101; Bayrmmd v. Thomas, 91 U. S. 712, 716; BeetwUh ▼. Bean^ 98
Id. 266. And whaterer may be the rule in time of war, it is weU settled
that subordinate military officers can no more protect^themselves than civil*
iaas for wrongs committed in time of peace, under orders emanating from a
BOQioe which is itself withoat authority: BaUsy. Clark, WXJ.S.90L

Adams Express Company v. Nook.

ra mrvALL, 062.1
Comf ON CABxaaa asm Bouitd to Oakbt Abticlis wxTHiir Soora or thub

BUSINB8S, without any other contract than such as the law would imply.
LiABiLiTT OF CoKMOV Carrtbrs IS Pbouuarlt Stbutoemt, and they will
not be permitted to limit that liability by special contracts^ unless they
are fairly made, and are fully understood by the other party, and ars
clearly proved.

The facts are stated in the opinion.

0. A. and L Caldwell^ for the appellant.

Oeorge T. Barrett^ for the appellee.

By Court, Robertson, J. The appellee sued the appellant
as an incorporated company engaged as a common carrier
in transporting, between Louisville, Kentucky, and the city
of New York, commodities for compensation. The petition
charged that the appellee's agent delivered to the agent of the
appellant, for transportation from Louisville to New York,
gum, opium, and mastic of the aggregate value of $380.50,
which the said bailee promised to deliver in good order to ap-
pellee's nominated agent in the latter city for a reasonable
compensation, to be paid on delivery, and alleged a breach in
u total non-delivery.

The answer — simply alleging that the contract was in writ-
ing, and essentially di£ferent from the oral agreement sued
on — insisted that the action was misconceived, and could be
maintained only on the written covenant, but did not exhibit
or otherwise describe the written memorial.

On this state of pleading, the parties submitted to the court
an agreed case, stating that, on the delivery of the articles to
the appellant's agent at Louisville, the appellee's agent filled

Digitized by


Sept. 1866.] Adams Express Co. v. Nock. 511

a blank in a printed receipt prepared by the company, stipu-
lating, among other things, against any liability beyond the
amount of fifty dollars, — the manuscript filling merely de-
scribing the articles to be transported and their value, and
naming the consignor, and consignee and the place of ultimate
delivery, — and stating, also, that the appellant admitted that
the appellee could prove that his agent did not read the printed
receipt, nor understand its conditions, nor sign a printed in-
dorsement acknowledging the acceptance of the conditions,
and which were not suggested to him; and that the appellee
" did not see said receipt or paper until after the goods were
lost "; and also, that the value of the articles was truly stated
in the petition, but reserving to the appellee an exception to
the admissibility of the printed paper, and to the appellant an
exception to the competency of oral testimony as to the igno-
rance of the appellee's agent.

On the facts as thus agreed and submitted, the circuit court
gave judgment against the appellant for the sum specified in
the petition and agreed to be the value of the goods.

The printed memorial of the contract was not a receipt only,
but also a covenant; and therefore, if mutually binding, it
would not be subject to contradiction or essential modification
by oral testimony without proof of fraud or mistake in the
execution of it. But the oral testimony recited in the agreed
case, and admitted if competent, showed that it was neither
read by the appellee's agent, nor its peculiar conditions under-
stood by him or even suggested to him; and therefore, and
especially as he never signed the indorsement accepting the
peculiar conditions, they were never obligatory on his constit-
uent. That testimony was therefore competent, and the action
is maintainable on the implied contract. Public policy im-
l)0ses on common carriers a constructive liability peculiarly
stringent; and as that policy might be often frustrated by per-
mitting special contracts to qualify or relax the responsibility
iini)osed and implied by law, there has been vexatious doubt
whether any such modifying and exceptional agreement should
l>c adjudged obligatory. Analogy, principle, and authority
now, however, preponderate decidedly in favor of the legality
of such contracts when fairly made, without duress, imposture,
or delusion, and finally understood and clearly proved. But
no such special contract will ever be implied from thf mere
publication of notice that the carrier will exact con' itions
essentially various from those prescribed by law. Nor, ii a case

Digitized by


512 Adams Express Co. v. Nock. [Kentucky.

of importunate necessity for immediate transportation, and
a refusal so to carry without a special contract, should the
exaction of such a contract be sanctioned; such unreasonable
extortion might be deemed duress.

As public carriers are bound to carry articles within their
scope of business, without any other contract than such as the
law would imply, if owners will freely and understandingly
make special contracts less favorable to themselves, they can
have no cause to complain that the law will enforce them.
But before the law should do so, the proofs must be clear that
such contract was freely made and fully understood.

The extraneous facts in this case were admissible to snow,
and do sufficiently show, that there was no special contract
bindingly made and mutually understood. And the intrinsic
fact that the appellee's agent did not sign the accepting in-
dorsement would alone be sufficient, in all such cases, to
negative any presumption that the special agreement now
claimed by the appellant was ever so made as to impose on
the appellee a resulting obligation enforceable by law.

The agreed facts as to the conduct and understanding of
the appellee's agent were therefore competent evidence, and
the printed document was inadmissible. And consequently,
the value as adjudged having been admitted, the judgment as
rendered was right, Judge Williams concurring in this con-
clusion, but uncommitted as to so much of the opinion as
decides that a special contract may be binding.

Wherefore the judgment of the circuit court is unanimously

Ldutatxon 07 Oabboeb's LzABnjTT BT Spioial CoHTRAcr: See Jvdatm
T. Wtttem R. R. Corp., 83 Am. Deo. 646, and note 651; Oolde^ ▼. Peim. R, R,
(^, 72 Id. 703; (%op«r ▼. .fieirr* ^ IcL 468, and oases coUeoted in note 480; B^
Mtfv. New York CeiU.R.R. Co., B2 Id. 369; Perkhuv. New TarkCetiL R.R.
Co,, 82 Id. 281, and note.

Thb pamoiPAL case la cmD to the point that a speoial oontraot limiting
oommon-law responsibility as a oommon carrrier most be regarded as obliga-
tory, in the aheenee of any allegations calling in question its ftdmess or bind-
ing force, in Adanu Exprea Co, v. Loeb, 7 Bnsh, 501; and to same effiMt in
AdamM SsBpreea Co. ▼. ChUhrie, 9 Id. 80; LmdmAOe etc. R. R. Co. y. Hedger, 9
Id. 650. It is cited to the point that there shonld be an express assent to
limitations of a carrier's liability, in Ocdnee v. Union Tramap. Co,, 28 Ohio St.
441; Railroad Co. v. Barrett, 36 Id. 453; and is cited as an instance of a
printed notice limiting the liability of the carrier, as distingnished from a
billof lading, in iM2erv. RaUroad Co., 2 Cul Snp. Ct. 286.

Digitized by







[17 LOUUSAKA AinruAii, 1A.J

Whkv PiBTT Dns, LiATnro Pkofxbtt in two or more states or oonntriti^
liii pr oper ty in each is oonddered a separate snooesBion for the poiposes
of administratum, the payment of debts, and tho deeisioa of the daims
of parties asserting title thereto.

FawxBS OF Admhiistratgbs AFPonmED in Duvbbxrt Staxu extend oniy
to the limits of the sovereign ereating them, and neither allows the other
to intermeddle with any assets within their respeotiTe Jnrisdiotions.

Ih Louisiana Fiduoiabt Aobntb ganvot Transisr negotiable assets with-
oat an order of ooort^ and snoh role wiU prevail in the abssnoe of any
lex lod eotUraetms.

The opinion states the fiEU^ts.

WhUakevy FeUowSy and Mills, for the plaintiff.

Bevijawin^ Bradford^ and Finney, for the defendants.

By Court, Ilsley, J. The plaintiff in this case, acting as
the curator of the vacant succession of Robert Woodsides, wb"
died in the parish of Assumption, in this state, where his suc-
cession was duly opened, instituted suit in the second district
court of New Orleans against Payne and Harrison, claiming
from them certain funds in their hands belonging to the suc-
cession of Woodsides.

The defendants, by their answer, admitted that they had in
their hands, standing to the credit of the deceased Robert Wood*
sides, the sum of $521.17, and that they also hold a further
sum of $5,000, which, they say, was deposited with them some
time about the 13th of March, 1860, by one Seth Kline, and

in. nsc. Vol. LXXXVn-88 518

Digitized by


514 BuBBANK V, Payne and Habbison [Louisiana,

for which they issued a certificate, payable to the said Robert
AVoodsides, or to his order. They further represent that they
believe that the said certificate is held by one J. L. Arbuthnot,
who resides in Mississippi, at WoodviUe, who has specially
notified them not to pay the said deposit nor balance of ac-
count to any one but him, in his capacity of administrator of
the said Robert Woodsides, duly appointed by the proper court,
in the state of Mississippi, where the deceased was domicili-
ated. They express their willingness to pay the several 'sums
claimed of them, upon return of the certificate of deposit is-
sued by them, and they pray for the appointment of a curator
ad hoc to represent the said J. L. Arbuthnot in the suit pend-

The curator ad hoc answered, claiming the whole amoimt in
controversy, as administrator of the estate of Robert Wood-
sides, imder appointment of the probate court of Wilkinson
County, Mississippi, in which capacity the certificate of deposit
was received by him, and which certificate is in the following
words: —

''Received of Seth Elline five thousand dollars, subject to
the order of Robert Woodsides, to be at his credit on account

[Signed] •<p*— ^^^n Habbison,

"J. . Abbuthnot, Administrator.

"New Orleans, March 30, I860."

On the trial of the case in the court below, both the plaintiff
and J. L. Arbuthnot produced their respective letters of ad-
ministration, and the defendants, Payne and Harrison, being
mere stake-holders, the contest is exclusively between the
Louisiana curator and the Mississippi administrator. It is
conceded, for the purpose of arriving at the real issue in this
case, that Robert Woodsides, at the time of his demise in
Louisiana, had his domicile in Wilkinson County, in Missis-
sippi, and that his estate there, and his succession here, were
properly and legally opened in both states.

That the Louisiana succession was properly opened does
not admit of a doubt. It was a case specially provided for in
the act of the legislature passed on the 16th of March, 1842,
section 1.

And as regards the independent action of succession sc
opened, the opinion of the court in Atkinson v. Rogers is di-
rectly in point. It is there held: " The plea to the jurisdiction
of tho courts of this state, on the ground that the succession
of T. W. Griflen had been opened in Amite County, in the

Digitized by


May, 1865.] Bubbank v. Payne and Habbison. 515

state of Mississippi, is not good in law. When a person dies,
leaving property in two or more states or countries, his prop-
erty in such state is considered as a separate succession for
the purposes of administration, the payment of debts, and the
decision of the claims of parties asserting title thereto."

It is the deliberate opinion of this court that the powers of
administrators appointed in different states extend only to
the limits of the sovereigns creating them, and that neither
allows the other to intermeddle with any assets within their
respective jurisdictions. And had any exception been taken
to the right of the ^^lississippi administrator to stand in judg-
ment in the case, tfe shoidd, without hesitation, have main-
tained it; but as it is, we shall proceed to the examination of
the issue presented.

The broad question presented now for solution is, whether
the fund held by Payne and Harrison is assets in the Louisi-
ana succession or in the Mississippi estate. It is urged by the
curator that the money, being on deposit in the state of Lou-
isiana, at Woodsides's demise, it is, to all intents and purposes,
an asset of the succession under his administration; whilst,
on the other hand, the administrator contends that the certifi-
cate of deposit, as he terms it, being in a negotiable form and
in his possession, belongs to the Mississippi estate. Were this
instrument in the hands of a bona fide indorsee firom the ad-
ministrator, claiming the amount of this fund, the question
then might arise, whether it was transferable by indorsement,
and whether the indorsement could be legally made by the
administrator,— whether a payment of it made to an assignee
would be a valid one. But as it is the administrator himself
who is prosecuting the claim, is it not competent for the court
to ascertain the nature of the title lie sets up, and how and
when he acquired it? Woodsides died on the 14th of March,
1860, one day after the money was deposited with Payne and
Harrison by Kline; so that, at his death, that sum, with the bal-
ance previously to his credit on the books of that house, formed
a part of his succession in Louisiana. It is not sliown when
the evidence of the deposit by Kline was taken out of the
state, and it is therefore reasonable to presume it was in this
state when the succession was oi)ened here. It was in the
hands of Kline a receipt to him, showing that he had paid that
sum for Woodsides, and that it was subject to Woodsides's
order. Ho might have retained this receipt for his own pro*
tection, Avithout compromitting himself with Woodsides, who

Digitized by


516 BuBBANK V. Payne and Harbison. [Louisiana,

would not, for that cause, have been precluded from claiming
any amount due to him on general account by Payne and Har-

Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 87 → online text (page 55 of 114)