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December 1, 1850


THIS case came up by writ of error to the Court of Appeals for the Western Shore of Maryland, being the highest court of law and equity in that State; which writ was issued under the twenty-fifth section of the Judiciary Act. It was argued at last term, on a motion to dismiss for want of jurisdiction. But the court reserved the point till final hearing. On the hearing at this term, the question of jurisdiction continued to be the most important question in the case,–and that on which it was decided by the court. A brief history of the facts connected with the case, and of the pleadings, will be sufficient to exhibit the questions involved. In the year 1816, General Xavier Mina, who was at that time connected with the revolutionary party in Mexico in opposition to the authority of Spain, came to the city of Baltimore, and there entered into a contract with certain gentlemen of that place, who associated themselves under the name of the 'Baltimore Mexican Company,' for the purchase of a quantity of arms, ammunition, &c., to fit out an expedition against the then government of Mexico. On account of the risk attending their delivery and the uncertainty of the payment, it was agreed that Mina should pay one hundred per cent. on the cost of the articles, and interest. The goods were shipped for Mexico, and delivered according to contract, but were not paid for by General Mina, as he was soon after taken prisoner and shot. From this time till 1825, the recovery of the claim was considered hopeless. In 1825, Mexico had achieved her independence, and after much solicitation the government was persuaded to acknowledge the justice of this claim, and assume the payment of it by an act of Congress passed to pay the debts of Mina. But notwithstanding the recognition of this claim as a debt, its payment was delayed for many years, and seemed almost hopeless. Many and larger claims were held by citizens of the United States against Mexico, of which the government had been urging the payment, and finally, on the 11th of April, 1839, a convention was concluded between the Secretary of State of the United States and the Mexican Minister, 'for the adjustment of claims of citizens of the United States of America, upon the government of the Mexican republic.' By this treaty all claims by citizens of the United States upon the Mexican government, &c., were referred to four commissioners, 'who were authorized to decide upon the justice of said claims, and the amount of compensation due from the Mexican government in each case.'

The opinion of the court was delivered by: As the claim of the 'Baltimore Mexican Company' had been recognized as a debt of the Mexican government by a solemn act of their Congress, its justice could not well be denied. It was accordingly allowed by the commissioners, on proof of its correctness and exhibition of the original contract with Mina.

David M. Perrine and John Glenn, who claimed to be assignees in trust of eight of the nine shares into which the stock of the company had been divided, received the amount of the award, and according to agreement with their cestui que trusts, deposited the money in the Mechanics' Bank of Baltimore, to be distributed according to the respective rights of the parties claiming it.

Soon after this was done, Philip E. Thomas and John White filed their bill in chancery against said Perrine and Glenn, claiming the share of _____ Smith, and praying the intervention and assistance of a court of equity, in order to the just distribution of the proceeds of the award in the hands of the trustees.

The defendants, Perrine and Glenn, came into court, and submitted 'that they are willing and desirous that the proceeds of the award may be distributed among the parties under the direction of the court, &c., and join in praying an early reference to an auditor for that purpose.'

The money being thus in court for distribution, all persons who laid any claim to it intervened by bill or petition against the trustees and opposing claimants. Among others, the plaintiff in error, George M. Gill, filed his bill, claiming the share and interest of Lyde Goodwin, who was one of the original nine or ten persons who were partners or members of the 'Baltimore Mexican Company.'

The bill alleges, that this company was formed in 1816; that Lyde Goodwin owned one ninth part of the property; that in February, 1817, Lyde Goodwin applied to the court for the benefit of the insolvent laws of Maryland, which he duly received; that the complainant was appointed permanent trustee, and gave the proper bond for faithful performance of the trust. The bill goes on to state the convention with Mexico in 1839, the award of the commissioners, the receipt of the share of Lyde Goodwin by Glenn and Perrine, under a power of attorney from Oliver's executors, who claimed title to the same under a pretended assignment from George J. Brown, the provisional trustee of said Goodwin, and finally prays that the executors of Oliver, the claimant of the share, and said trustees, may answer, account, and bring the certificates (in which payment was made) into court, that they may be delivered over to complainant.

The complainant filed also another bill against the trustees and all other claimants, for the sum of five per cent. on the whole amount, as due to Lyde Goodwin for services rendered to the company, by contract with them.

The complainant founded his claim to the money in both cases on the allegation 'that all Lyde Goodwin's interest in said property and claims had become vested in the petitioner by virtue of his application and the laws of the State.'

The answers of the defendants admit the application of Lyde Goodwin for the benefit of the insolvent laws and his discharge; but state that the complainant, Gill, was not appointed permanent trustee till March, 1837; that on the 26th of February, 1817, George J. Brown was duly appointed by the court provisional trustee, and gave bond and security, and that the debtor, Lyde Goodwin, on the same day executed to said trustee a deed of assignment of all his property. That in 1825 said Brown conveyed to Robert Oliver, and afterwards, on the 30th of May, 1829, Lyde Goodwin assigned and conveyed to said Oliver all his title and interest in the claim of the company on Mexico. The defendants allege and plead, that by these assignments the title to the share of Lyde Goodwin vested in Robert Oliver in his lifetime, who is now represented by his executors.

There was no dispute on the facts of this case, and the only questions of law involved in it are, whether, by the insolvent laws of Maryland, the title of Gill, as permanent trustee, to the money in court, was better than the previous assignment by the provisional trustee and Lyde Goodwin himself. On the one side it was contended that, by the insolvent act of Maryland passed in 1805, all the property and estate of the insolvent which he held at the time of his discharge vested in his permanent trustee whensoever he should thereafter be appointed, and that the deed from the provisional trustee, George J. Brown, conveyed no title to Oliver, under the insolvent laws. Nor did the deed of Goodwin himself convey any title, because by his insolvent proceedings all his right, title, and interest in this claim became divested.

On the contrary, the executors of Oliver contended that, until the recognition of this claim by Mexico, in 1825, it did not constitute such property as would pass by the insolvent assignment. That after, by the labors of Goodwin and other agents of the company, this claim was assumed by Mexico, and acknowledged as a debt, it vested in Goodwin as a new acquisition, which he might convey. And of this opinion was the Court of Appeals of Maryland.

The judgment of the Court of Appeals of Maryland was as follows:––

'The appeal in this case coming on for hearing, and having been fully argued by the solicitors of the respective parties, has been since fully considered by the court; and it appearing to the court that that part of the decree appealed from of the court below, which directed any portion of the fund in controversy to be transferred or paid to the appellee, George M. Gill, as permanent trustee of Lyde Goodwin, was erroneous, and should be reversed; and it also appearing to the court that said portion of said fund should be paid over and transferred to the appellants, Charles Oliver, Robert M. Gibbs, and Thomas Oliver, as executors of Robert Oliver, in the proceedings mentioned, together with all accumulations of interest or dividends since accruing upon the same:'It is thereupon, by this court, and the authority thereof, on this 23d day of June, in the year 1849, adjudged, ordered, and decreed, that the said decree of the court below, so far as the same adjudged and decreed any portion of the fund in controversy to be transferred or paid to the said George M. Gill, as permanent trustee of Lyde Goodwin, be, and the same is, reversed and annulled; and this court, proceeding to pass such decree in the premises as they are of opinion should have been passed by the court below, do further adjudge and decree, that all and every part of such portion of said fund, so by the court below decreed to be transferred or paid to said George M. Gill, as trustee aforesaid, be, by the trustees in the proceedings mentioned, David M. Perrine and John Glenn, transferred or paid over to the appellants, Charles Oliver, Robert M. Gibbs, and Thomas Oliver, as executors of Robert Oliver; together with all and every accumulation of interest or dividends, or investments of the same, made or accruing in and upon such part or portion of said fund; and it is further, by this court and its authority, adjudged and decreed, that all other portions of the decree of the court below, except such as is hereby reversed, be, and the same is hereby, affirmed; it is further adjudged and decreed, that the reversal of the decree of the court below be without costs.'

The opinion of the said Court of Appeals was as follows:––

'The majority of this court, who sat in the trial of this cause, (and by which was decreed the reversal of the decree of the County Court,) at the instance of the solicitors of the appellees, briefly state the following as their reasons for such reversal. They are of opinion that the entire contract, upon which the claim of the appellees is founded, is so fraught with illegality and turpitude, as to be utterly null and void, and conferring no rights or obligations upon any of the contracting parties which can be sustained or countenanced by any court of law or equity in this State, or of the United States; that it has no legal or moral obligation to support it, and that therefore, under the insolvent laws of Maryland, such a claim does not pass to or vest in the trustee of an insolvent petitioner. It forms no part of his property or estate, within the meaning of the legislative enactments constituting our insolvent system. It bears no analogy to the cases, decided in Maryland and elsewhere, of claims not recoverable in a court of justice, which nevertheless have been held to vest in the trustees of an insolvent or the assignees of a bankrupt. In the case referred to, the claims, as concerned those asserting them, were, on their part, tainted by no principle of illegality or immorality; on the contrary, were sustained by every principle of national law and natural justice, and nothing was wanting to render them recuperable, but a judicial tribunal competent to take cognizance thereof. Wholly dissimilar is the claim before us. Such is its character, that it cannot be presented to a court of justice but by a disclosure of its impurities; and if any thing is conclusively settled, or ought to be so regarded, it is that a claim, thus imbued with illegality and corruption, will never be sanctioned or enforced by a court either of law or equity.

Entertaining this view of the case, it is unnecessary to examine the various minor points which were raised in the argument before us.'

To review the judgment of the Court of Appeals, Gill sued out a writ of error, and brought the case up to this court.

It was argued by Mr. Nelson and Mr. Dulany, for the plaintiff in error, and Mr. Johnson and Mr. Campbell, for the defendants in error.

The point of jurisdiction was thus stated in the brief of the counsel for the plaintiff in error.

5th. That the decision of the commissioners, and their award, conclusively established the amount and validity of the claim of the Mexican Company, which under the act of Congress it was their duty to decide 'according to the provisions of said convention, and the principles of justice, equity, and the law of nations.' That the Court of Appeals, in deciding that the contract upon which the claim of said company was founded was so fraught with turpitude and illegality as to be utterly null and void, comes in direct conflict with the decision and award of the commissioners. Comegys v. Vasse, 1 Peters, 212; Frevall v. Bache, 14 Peters, 95; Sheppard v. Taylor, 5 Peters, 710.

6th. Wherefore the plaintiff in error will further contend, that by the decision against his claim, set up in the pleadings on the record in this case, under the said treaty, act of Congress, and award in pursuance thereof, by the Court of Appeals, the construction, operation, and effect of the said treaty, act of Congress, and the award in pursuance thereof, were necessarily drawn in question and directly decided. And therefore this court has jurisdiction to entertain the present appeal. 5 Cranch, 344; 6 Cranch, 281; 1 Wheat. 305, 315, 335; 2 Peters, 245, 250, 380, 410; 3 Peters, 290, 352; 4 Peters, 410; 6 Peters, 41, 48; 10 Peters, 363, 398; 16 Peters, 281; Judiciary Act of 1789, § 25; Osborn v. Bank of U. States, 9 Wheat. 748.

The following notes of the argument of Mr. Dulany show the reasons why he maintained this point. After giving a narrative of the case he proceeded as follows.

From the foregoing extracts I think it clearly appears, that it was the design of the treaty to give compensation to claims which antecedently had been preferred against the Mexican government, if upon examination they should turn out to be just.

That upon the determination of such claims, and an award given for the amount, the claims themselves became extinguished and merged in the awards, which follows not more from the operation of general principles of law, than the express provisions of the treaty, which in its twelfth article declares that the United States agree for ever to exonerate the Mexican government from any further accountability for claims which should either be rejected by the board, &c., or which, being allowed, &c., should be provided for by the government in the manner before mentioned.

Whoever, then, claims a right to the certificates issued on the award in favor of the Mexican Company must claim it under the treaty by which, and the act of Congress to carry it into effect, they were created. It is to the treaty they owe their existence, their obligation, and their value.

The right and title which the plaintiff in error claims in his petition under the treaty to the certificates in question have never been perfected in him by a delivery of the certificates themselves; nor indeed in any other person. For although they came to the possession of Glenn and Perrine from the Secretary of the Treasury, yet the delivery to them was not as owners, but it was qualified by the terms of the award under which they were issued. The award assigned to 'Glenn and Perrine' eight shares of the Mexican Company, including that of Lyde Goodwin, 'as trustees for Robert Oliver's legal representatives, and whomsoever else it might concern, in the ratio of their respective interests.' Thus the certificates were delivered to Glenn and Perrine as trustees and depositaries for the true owners, whomsoever they might be; and Glenn and Perrine in point of fact, when the plaintiff in error filed his petition, had delivered them to no one, but, on the contrary, had submitted the question of their distribution to the jurisdiction of Baltimore County Court sitting in equity.

Hence it follows, that a perfected title to the certificates in controversy in this case has as yet never vested in either party thereto, but that the right and title demanded on the one side and the other, growing, as the plaintiff in error claims, immediately out of the treaty, remain to be ultimately determined by the true construction thereof by this court, the Court of Appeals in Maryland having decided decided against the right thus claimed.

Now, if nothing more appeared in the record than the right claimed by the plaintiff in error in his pleadings, by and under the treaty, and the decision of the court below against the right thus claimed, that brings this cause within the appellate jurisdiction of the Supreme Court, under the twenty-fifth article of the Judiciary Act. 7 Howard, 743-772.

But it is said that, because the plaintiff in error has set forth the title which he derived under the insolvent laws of Maryland to Goodwin's share in the Mexican Company, no such right, title, or privilege, under the convention with Mexico, is set up by the plaintiff in error in his petition, and no decision against any such right, title, &c. made by the court below as would give jurisdiction to review it to this court, under the twenty-fifth section of the Judiciary Act, but that the whole case turns upon the construction of the laws of Maryland.

In this position I apprehend there is great error, and ample authority in the former decisions of this court for its condemnation.

It is perfectly true that the plaintiff in error has alleged that, by the laws of Maryland, the share which was of Goodwin in the Mexican Company, on the 25th of February, 1817, became vested in him, being the permanent trustee of Goodwin, as of that day. And I insist that it is in reference to this very title, thus acquired, under the laws of the State, that the treaty is to be interpreted, in order that the rights and benefits which it designed to bestow should be awarded to the proper person. In this view of the case, the State laws, or general principles of law, are to be construed and interpreted as incidental to, and absolutely essential in, the mere exercise of the power and duty of construing the treaty itself. In determining whether the plaintiff is entitled to the certificates which he claims under the treaty, it is necessary to inquire into the validity of the title under which he claims; and how can this be accomplished without the consideration of all legal questions which might affect that validity, and so influence the decision upon the rights claimed under the treaty? If the plaintiff in error is entitled, by the law of Maryland, to the share in the Mexican Company which was of Lyde Goodwin, in order to receive the benefits and protection of the convention with Mexico, then it becomes necessary in dispensing those benefits, and applying to his case the protection of the treaty, to determine his title upon that law. This has heretofore been the well-established practice of this court.

In Owings v. Norwood, 5 Cranch, 344, C. J. Marshall said: 'Each treaty stipulates something respecting the citizens of the two nations, and gives them rights. Whenever a right grows out of, or is protected by a treaty, it is sanctioned against all the laws and judicial decisions of the States; and whoever may have this right, it is to be protected.'

In Smith v. The State of Maryland, use of Carroll et al. (6 Cranch, 286; 2 Cond. R. 377), the principle here contended for is fully asserted, and clearly explained and applied. The whole dispute there turned upon the construction of a State statute; and the benefit and protection claimed by the plaintiff in error as arising out of the treaty, it was admitted on both sides, depended upon the interpretation of the Maryland law.

In the opinion of the court they say: 'It is contended by the defendants in error, that the question involved in the cause turns exclusively upon the construction of the confiscation laws of the State of Maryland, passed prior to the treaty of peace, and that no question relative to the construction of that treaty did or could occur. That the only point in dispute was, whether the confiscation of the lands in ...

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