Anderson v. Poindexter et al.

have sworn to support. We are not here to determine questions of divinity or of casuistry. In determining how far we may disregard the comity of nations, and refuse to recognize or enforce rights arising out of a legal relation in another state, we must look to the legal standard of morality, instead of the conflicting theories of theologians and moralists. It is sufficient for us to know that the relation of master and slave is recognized by the constitution of the United States and sanctioned by the law of nations. This fixes

the legal standard of morality for judicial action on such a question as this. When a similar question was presented to the court of admiralty in England, in reference to the slave trade, in *the [726 case of the Louis, a French vessel captured on a slaving voyage, the eminent English jurist, Sir William Scott, said: "A court, in the administration of law, can not impute criminality to an act where the law imputes none. It must look to the legal standard of morality; and, upon a question of this nature, that standard must be found in the law of nations as fixed and evidenced by general and ancient, and admitted practice, by treaties, and by the general tenor of the laws and ordinances, and the formal transactions of civilized states; and looking to those authorities, he found a difficulty in maintaining that the transaction was legally criminal." 2 Dodson, 438. And the remarks of Chief Justice Marshall, in reference to the same question in regard to the slave trade, in the case the Antelope, 10 Wheat. 66, are in point: "Whatever might be the answer of a moralist to this question, a jurist must search for its solution in those principles of action which are sanctioned by the usages, the national acts, and the general assent of that portion of the world of which he considers himself as a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question, as has already been observed, is decided in favor of the legality of the trade. Both Europe and America had embarked in it, and for nearly two centuries it was carried on without opposition and without censure. A jurist could not say that a practice thus supported was illegal," and criminal. If, in regard to the slave trade, which was prohibited by a law of Congress, and declared piracy on the part of a subject of our own country, the courts of the United States were required to regard the laws of other countries which had not prohibited it, and to recognize and protect the rights of the subjects of such other countries arising out of the slave trade, upon what legal principle can

Anderson v. Poindexter et al.

727] a state of the American Union set at naught the law of comity between states, and refuse to recognize or enforce legal rights, because they have their origin, not in the slave trade abroad, which has been condemned by a law of Congress and made criminal in a citizen of the United States, but in the relation of master and slave within the territory and under the laws of a sister state. Moralists and philanthropists may be indulged in their appeals to public sentiment in behalf of their schemes of moral reform; but courts of justice have no authority to change the legal standard of morality between states, and pronounce that to be immoral and criminal in the laws of another state, which has existed in different forms in all ages of the world, which is tolerated by the law of nations, which existed to some extent in every state of our confederacy at the time of the formation of the Union, and which is distinctly recognized by the constitution of the United States, which we are bound by our judicial oath to support. It is the duty of the judicial tribunals to declare the law as it is, not to change it. In our judicial action we can recognize no higher law than the law of the land. And I may add, that if the time shall come when our judicial tribunals shall yield to the clamor of popular excitement, and announce a higher law than the constitution and statutes framed under it, they will proclaim anarchy and organize insurrection.

NOTE-The chief justice directs it to be noted that he had copied, and directed to be appended to his opinion, in a note, the statement of the case, copy of the return to the writ of habeas corpus, and opinion of Lord Mansfield in full, both at the adjournment, and on the final decision, in the case of Sommersett, as reported in 20 Howell's St. Trials; but that, after his doing so, Judge Swan concluded to embody the same matter, in full, in the body of his opinion. And that this accounts for the omission of the matter, in a note here, to which the chief justice refers on page 714, but which will be found in Judge Swan's opinion in this case, at page 657.

554

INDEX.

ABANDONMENT-

A steamboat, insured only as to three-fourths of its agreed value, was wrecked
and abandoned to the insurance offices. The policy of insurance contained
the following clause: "And in all cases of abandonment, the assured shall
assign, transfer, and set over to said insurance company all their interest
in and to the said steamboat, and every part thereof, free of all claims
and charges whatever." Held:

1. The term abandonment, as used in policies of marine insurance, is a
technical one, denoting an act, the legal effect of which is to transfer to the
underwriter only that interest of the insured which is covered by the policy,
though the legal title to, and right to dispose of, the entire wreck, thereby
passes to the insurer; and in giving a construction to such policy, this term
will be supposed to have been used in its technical, legal sense, unless a
different intention is clearly expressed. Cincinnati Ins. Co. v. Duffield et
al. 200.

2. The owners had an interest in the boat, after abandonment, of one-fourth,
as to which they were their own insurers. 1b.

3. The clause in question was not intended to change the legal effect of an
abandonment, which the framer of the policy may be presumed to have
understood; but to prescribe the form in which the transfer should be made
to the underwriters of the interest which they derive by law from the
abandonment; and to point out the mode in which the intention to abandon
should be unequivocally expressed. Ib. 205.

4. The discharge of the insurance company from its legal liability to account
to the party insured for his proportion of the proceeds of the wreck, can
only be effected by language so clear and explicit as to leave no reasonable
ground for misapprehension on the part of the insured. Ib. 206.
5. See CONTRACT, 8.

ACCORD AND SATISFACTION—

1. An accord and satisfaction, moving from a stranger or person having no
pecuniary interest in the subject-matter, if accepted in discharge of the
debt, constitutes a good defense to an action to enforce the liability against
the debtor. Wilson's Ex'rs v. Morrow, 51

2. See PRACTICE, 15.

ACKNOWLEDGMENT. See MORTGAGE, 2.

ACTION-

1. The use of streams of water for domestic, agricultural, and manufacturing.
purposes, being to some extent publice juris, an action for a nuisance
caused by any obstruction or diversion of the water of a stream for any
such purpose, will not lie unless the damage occasioned thereby be real,
material, and substantial. McElroy v. Goble, 187.

2. After receiving negotiable paper in payment of a pre-existing debt, the
creditor can not maintain an action upon the debt he has thus discharged,
merely because the maker of the negotiable paper he has received in pay-
ment, might have had some defense against it in the hands of the payee,
from whom he received it. Roxborough v. Messick et al. 422.

3. An action can not be maintained to recover back money paid with full
knowledge of the facts, in discharge of an assessment made by a municipal

ACTION-Continued.

Actionable Words-Appeal Bond.

corporation, under section 116 of the act to provide for the organiza-
tion of cities and incorporated villages." City of Marietta v. Slocomb,
471.

4. Insurance brokers, holding an open policy of insurance for themselves and
whom it may concern, may, in case of damage to property covered by their
policy, maintain, in their names, an action for the use of the owners, al-
though the latter are not named in the policy, if it sufficiently appear that
the insurance was procured for their benefit. Protection Ins. Co. v. Wilson
& Co., for use, etc. 453.

5. See APPEAL BOND, 2, 3.

ACTIONABLE WORDS-

Words spoken of another, charging him with maliciously removing the corner-
stone of lands, are, per se, actionable. Dial v. Holter, 228.

ADMINISTRATION.

ADVANCEMENT-

See EXECUTORS AND ADMINISTRATORS.

Where a father buys land, pays for it, and causes it to be conveyed to his
child, the law, in absence of proof to the contrary, presumes it to be a gift
or advancement. Lessee of Vanzant et al. v. Davies, 52.

AFFIRMATIVE-

The party having the affirmative of an issue is entitled to open and close the
argument, as well as the evidence. Raudebaugh and wife v. Shelley et
al. 307.

AGREEMENT-

1. A verbal agreement, to be effectual as a waiver, variation, or change in the
stipulations of a prior written contract between the parties, must rest upon
some new and distinct legal consideration, or must have been so far ex-
ecuted or acted upon by the parties, that a refusal to carry it out would
operate as a fraud upon one of the parties. Thurston & Hays v. Ludwig, 1.
2. See CONTRACT, 2; EVIDENCE, 1, 2, 3, 4; Usury, 2.

AMENDMENT-

1. See APPEAL BOND, 1.

2. See NEW TRIAL, 2.

3. See MORTGAGE, 3.

APPEALS-

1. It seems that the "act concerning divorce and alimony," passed March
11, 1853, does not permit an appeal to the district court from any judgment
or order of the court of common pleas, in cases of petition for divorce
and alimony, or of petition for alimony alone. The 17th section of said
act was intended to permit appeals in cases arising under the fourteenth
section of the same act. Tappan v. Tappan, 64.

2. A notice of appeal given at the time of the rendition of a judgment on the
12th day of March, 1852, in the common pleas, and in due form entered on
the records of the court, and standing there as such notice in the case on
the 23d of the same month, when the law regulating appeals from the com-
mon pleas to the district court was enacted, operated as a sufficient com-
pliance with the law as to notice of the intention of the party to appeal.
Sapp v. Loughead et al. 174.

APPEAL BOND-

1. Steps taken by filing an appeal bond to vacate a judgment of the court of
common pleas, and to transfer the action for trial to the district court, is a
proceeding in an action; and the 137th section of the code, which author-
izes courts to permit an amendment of a mistake, in any respect, in any
proceeding, is applicable to appeal bonds; and mistakes therein may, by
consent of sureties, be amended in the appellate court, or a new bond, by
way of amendment, may be filed. Irwin et al. v. Bank of Bellefontaine, 81.
2. In a suit on a bond purporting to have been executed for the appeal of a

Argument-Bail for Stay of Execution.

APPEAL BOND- Continued.

cause from the court of common pleas to the Supreme Court, within and
for a particular county of this state, and conditioned for the payent of
the amount of the condemnation in said Supreme Court and costs," in
case a decree shall be entered in favor of the "appellee," such bond can
not be construed as a bond for an appeal to the district court of such
county; nor, as against the surety therein, can its condition be at all varied
from, or extended beyond its plain terms. Myers & Ingersoll v. Parker,

501.

3. On such a bond, executed in 1852, when appeals no longer lay from the
common pleas to the Supreme Court, and the district court had taken the
place of the former Supreme Court in the several counties of the state, no-
action can be maintained. Ib.

ARGUMENT-

The party having the affirmative of an issue is entitled to open and close the
argument as well as the evidence. Raudebaugh and wife v. Shelley et al. 307.
ASSESSMENT-

An action can not be maintained to recover back money paid with full
knowledge of the facts, in discharge of an assessment made by a municipal
corporation, under the 116th section of the act to provide for the organ-
ization of cities and incorporated villages." City of Marietta v. Slocomb,

471.
ASSIGNEE.
ASSIGNMENT-

See USURY, 6, 7; ASSIGNMENT.

An assignment was made by an insolvent debtor, of his property, for the ben-
efit of all his creditors, containing a provision, “that the trustee shall sell
and dispose of the property with convenient diligence, either at public or
private sale, and for the best prices he can obtain therefor, for cash, or upon
such terms of credit as he may deem advisable to convert the same into
money to advantage for those interested in the premises, and to barter and
exchange the same or any part thereof as he may deem proper for the
benefit of the creditors of the assignor, and to dispose of the same in any
manner whatsoever, as freely and lawfully as the assignor could do himself,
which the trustee may deem advisable to do, tending in his opinion to con
vert the same into money directly or indirectly for the benefit of all inter-
ested under this assignment, and to collect all such debts and demands as
may be collectible, and to settle, compound, and adjust, and to discharge
the same for payment in cash or in property, or for part payment, only as
aforesaid, any as well as all the claims and demands due, owing, or accruing
due to said assignor, as well as the claims in which the said assignor has
any interest whatever, and finally to make at his discretion any such dis-
position of the property hereby assigned and transferred, or any part thereof,
as the said assignor could do himself before the execution of these
presents.' Held:

1. That the assignment is not per se fraudulent and void. Conkling &
Shepherd v. Coonrod & Crum, 612.

2. That a sale of goods by the trustee on a credit of one, two, and three years.
is an abuse of discretion, and creditors can interpose and require a sale of
the notes taken on such credit.

Ib.

3. It seems when a trustee is authorized to sell on credit, that a sale of real
or personal property by the trustee, upon such credit as is authorized by
law in the settlement of the estates of deceased persons, is not in general an
abuse of discretion. lb.

ASSOCIATION. See CONTRAct, 7, 8, 9, 10.

AWAY-GOING CROP. See LEASE.

BAIL FOR STAY OF EXECUTION. See JURISDICTION, 9, 10.