Cross v. J^eQ&lle, 68 U.S. (1 Wall.) 1

3. Will this court decree, as asked by the heirs, on future rights ? If it will not,.it is unimportant whether the limitations over are void for remoteness or not. The question proposed was deeply considered so lately as 1856, in an English case, in the Court of Appeals in Chancery ;f a case which is in point, and which we believe this court will follow. Lord Justice Turner there said, that long as he had known the court, he had always considered it to be settled that it did not declare future rights, but would leave them to be determined when they came into possession. He p. 5added, that in all cases within his experience, where there had been tenancies for life with the remainder over, the course had been to provide for the interests of the tenants for life, reserving liberty to apply upon their deaths. Various considerations were urged before him in support of the proposition, which will be pressed by the other side, here, and among them the convenience and advantage it would be to parties to have their future rights ascertained and declared. To all arguments of this kind the judge replied, in effect, that the question was not one of discretion, but deeply affected the law of the court; that the course and practice in such cases constituted the law of the court; and added: “ I cannot agree to break through that law upon any mere ground of convenience. If the law is productive of inconvenience, it is for the legislature to alter it.” In Jackson v. Turnley* the Vice-Chancellor would not entertain a suit for the purpose of declaring that a person who claims to have a right which may arise hereafter has no such right.

3. The general preventive power of equity; its capacity to treat vested estates in remainder as present interests to be protected; its habit of declaring a scheme of trusts, and so of deciding whether limitations over tend, or do not tend, to perpetuities, are all supposed to be shut off from exercise in a case apparently one for their application, by Langdale v. Briggs, decided in an English court. We believe that case to have been wrongly decided even upon English authorities. It is notoriously not in accordance with Scotch ones. Turner, L. J., though he said that during the hearing he had been surprised at the length to which the argument had been carried in favor of that view which we now take, yet adds: “ But having looked into the cases since the argument, I feel bound now to say that I have been not less surprised to find how little authority is to be found upon the subject.” He consoles himself by remarking, that “authority, however, is not wholly wanting;” and makes good his assertion by citing a book of no more modern and no more full character than “ Equity Cases Abridged.” His lordship.also declared: “ I am far from thinking that, to some extent, the legislature might not usefully interpose and provide some remedy for the ascertainment of future rights.” Certainly, when a case decided in the face of expressions like these is pressed upon an American tribunal of supreme authority in limitation of its powers, we may pause before we adopt it. Space beyond p. 7that usually allowed to argument will be pardoned in favor of an examination of the case itself, and of the precedents upon which it professes to be founded. The discussion will be dry to readers generally, but it may prove valuable to any future investigator of the limits upon general chancery jurisdiction.

* 89 English Law and Equity, 214. f 4 Vesey, 227. J 17 Id. 255. p. 9for the mortgages; that consequently the question was not raised by the bill, and should not be passed upon.

* 8 Vesey, 561. f 3 Beavan, 180, n. p. 10Turner it would have been improper to decide this question during the life of the complainant.

The bill alleges that the trusts declared in the will are all void, because of the alienage of Mrs. De Valle and her children, and prays that the trustees may be ordered to convey p. 13to the complainant as one of these numerous contingent remainder-men who is not an alien; or that the estate be conveyed to the heirs at law of the testator. As it is not alleged that the complainant is one of these heirs, it is not easy to apprehend on what grounds he claims as an alternative remedy that the court should decree in favor of those who claim adversely to himself. Perhaps it was to favor the attempt to give jurisdiction to the court to declare the future rights of the parties by converting an original into a cross-bill.

4. The bill charges no fault to the devisees except alienage, and before any of the contingencies happen the party entitlefl to take may be a citizen and capable of taking and holding the estate. In fact, one of the children of defendant was p. 14born in Rhode Island, and therefore is as capable of taking as Cross.

But there is a class of cases which are exceptions to this rule, and being exceptional, only tend to prove the rule. The New York cases of Lorillard v. Coster, and Hawley v. James,| cited by the counsel of the heirs at law, are of this character. There the bills were filed by the executors or trustees for their protection, and that they might have a construction of the will, and the direction of the court as to the disposition of the property. In such cases, from necessity, and in 3rder to protect the trustee, the court are compelled to settle questions as to the validity and effect of contingent p. 16limitations in a will, even to persons not in esse, in order to make a final decree and give proper instructions in relation to the execution of the trusts.* It is this necessity alone which compels a court to make such cases exceptions to the general rule. But in the present case no such necessity exists. The court is not called upon to make a scheme of the trusts, nor could they anticipate the situation of the parties in the suit, or those who may be in existence at the death of Mrs. De Valle. The court has no power to decree in thesi, as to the future rights of parties not before the court or in esse.

“ I authorize, &c., in my name and representing me, to appear in and prosecute the cause I am this day prosecuting before the p. 17tribunal of justice, &c., in which this vessel is interested; said vessel has been detained by force of the blockade of Buenos Ayres, and that they make petitions, request, and protests, here and before all tribunals, superior and inferior, before whom it is customary to appeal; that they present all the documents favorable to my rights; that they except to and decline jurisdiction; that they give and refuse terms; that they submit written evidence and proof; that they retort and contradict everything unfavorable; that they challenge jurisdiction; that they express the causes of accusation, if it be necessary so to do; that they take cognizance of all decrees and interlocutory as well as final sentences; that they admit the favorable and appeal from the adverse; that they prosecute the appeal before his Imperial Majesty in the superior tribunals of war and justice, that in right they can and ought to do; that they insinuate where and against whom they may deem advisable, doing in effect everything requisite and necessary that I, being present, would or could do; that they make transactions and obligations, name arbitrators and mediators, demanding damages or adjusting them amicably with the opposite parties, receiving in my name the said brig Caspian and her cargo; that they give all receipts right and proper to be given in faith of delivery and acquittance; and after the restitution of said vessel they may name, in my absence, any other captain and crew to navigate her if they deem it advisable, and if not, they may sell her per account of her legitimate owners, and they may receive amount of said sale. And as to the necessary power referred to, with all incidental and resulting powers, I give it to and confer it upon my aforesaid attorney, with free, frank, and general administration without limit, in order that there be no clause or special expression which would destroy the effect of it, because I gave them full power to substitute another, to revoke the appointed one’s authority, and to name again substitutes, all of whom I exonerate from costs.”

2. The appellant asks, in fact, to be paid for having helped p. 21the Government of the United States to effect a treaty. If he have any claim against Ellison under the treaty, he must have a similar claim against every party in whose favor the commissioner awarded. He does not set up a contract with the owners of the vessel, or either of them directly, or through any agent, other than has been stated, but relies on the services he has thus rendered as imposing a lien upon the awards. If there is no lien, he has no case in equity at all. The assertion of the opposite counsel as to what gives an equitable lien is perhaps correct. But it does not apply to Mr. Wright’s case. He has no “ order or writing,” nor does he show any “ act intended as an appropriation of the fund.”

The services of the complainant in bringing into activity the diplomatic agencies of the United States, and otherwise, at Rio, and subsequently in prosecuting the claim in this city, were outside of his original authority. Nevertheless they were beneficial to the claimants, and the approval of the defendants may be fairly implied from their silence and p. 22inaction. ’When the defendant, Ellison, interposed, the fruit was ripe and ready to fall into the hands of those entitled to receive it. We regard the case as a proper one for compensation, and in an action at law the complainant could hardly fail to recover.

The fifth plea set forth substantially, that after the execution of the guaranty, and before the 1st of October, 1855, to wit, &c., the stock of the said Short Line Railway was merged and consolidated with the stock of a second railway company named; * making one joint stock company of the two, under a new corporate name, which was given; j* that the said corporations were organized and formed under the already mentioned act of May 11, 1852, to provide for the incorporation of railroad companies f that the roads were connecting and intersecting roads; that the consolidation was made with the consent of the stockholders and directors of both companies; that afterwards, in August, 1854, the said newly formed joint company was merged and consolidated with a third railway corporation of the State of Indiana, whpse name was also given; J which company was constructing a road that intersected with the said already mentioned newly formed joint company; that by the said consolidation, the stock of the said two companies was merged and consolidated, “ forming one joint stock company out of said two companies; ” that the said consolidation was made with the consent of fhe directors and stockholders of said two companies, and with the consent of said plaintiff; that the said consolidated company assumed a third corporate name, which was stated; § and that, by reason of the said consolidation, the stock of the Short Line Railway Company in said agreement specified, was destroyed,*§ p. 28and rendered wholly worthless and of no value. A demurrer was interposed to this plea, which was overruled.

1. Is the replication double? It cannot be supposed that the fifth plea intended to allege the three facts stated, namely, the consolidation, the plaintiff’s consent, and the destruction of the stock, as three separate matters of defence. It means that the defendants were excused from their agreement because the stock of the plaintiff had been destroyed, and that the destruction resulted from a consolidation to which the p. 29plaintiff had consented. Now all three facts constitute (together) but a single point of defence; and that point, including all its elements, the plaintiff*, by settled rule of pleading, had a right to put in issue. Sergeant Stephen thus illustrates the rule :*

3. But a new point arises. The question is not only as to the sufficiency of our replication. A demurrer being put on the pleadings it searches the record. The first bad piece of pleading will be laid hold of, and judgment given on it. Now does the plea to which we have replied, itself put in a sufficient defence ? The fifth plea does not allege that a new “ corporation ” was created by the consolidation of the Short Line Railway Company with either or both of the other companies named, but that “ one. joint stock company” was formed by union of the three. And the statute of Indiana, authorizing consolidation, uses that peculiar language.* Upon the other hand, the general act of May 11th, 1852, under which as well the Short Line Railway Company as both the other companies mentioned in the plea were formed, declares that the companies formed’under it shall be “ corporations” in the proper sense. These two statutes show, therefore, that the Legislature of Indiana intended to express the difference between a joint-stock company (as such) and a corporation. It is not only a difference well established, but peculiarly significant in this connection.! The old corporation, therefore, was not drowned, dissolved, nor otherwise destroyed. Decisions of the Supreme Court of Indiana p. 32favor, perhaps, this view.* Perkins, J., in the case of Booe v. The Junction Railroad Cb.,f says, speaking of the point before him:

4. But there is another answer. The act of February 23, 1853, was in force when Clearwater made his agreement with the defendants. He was not, therefore, a stockholder entitled to the privilege of withdrawing in the event of consolidation : he had subscribed in view of the possibility of such an event, and that possibility was one of the elements of his contract. J This view, supported by English authorities and authorities elsewhere than in Indiana, receives support in Indiana itself. Perkins, J., in the already cited case of Booe v. Junction Railroad Co.,§ raises the question which p. 33we have already stated, to wit: “ Whether two railroad companies, by consent of the legislature, granted subsequently to the subscriptions of stock, but without the consent of the stockholders, can consolidate their separate existences into one ?” He makes the question in view of a previous Indiana case,* which decides that one who subscribes, after the enactment of a law authorizing the company to consolidate, is bound by his subscription, although such consolidation be without his consent or even his knowledge. And are not the principles lately declared by this court, in Sherman v. Smithf conclusive; especially when we consider that the Short Line Railway Company was formed under the general act of May 11th, 1852, relating to railroads,—an act subject to modification by the legislatures at any time ?

1st. The plea sets up the traversable facts of the consoli—_____ .________ ______ _ _______ p. 34dation of the stock of the Short Line Railroad Company with the stocks of other railway companies, which are the only traversable facts in the plea which are neither admitted nor denied by a replication.

What, then, is the defence made by it ? It is that after the contract was made and before the time limited for its execution, the plaintiff consented to a consolidation of the company with other companies, and the consolidation of the stock of the different companies. How is it material whether, under the laws of Indiana, a new “ corporation,” pr a “joint-stock company,” was the result of the consolidation ? The stock was merged in either event: it became mingled; and the identity and separate existence of the plaintiff’s 200 p. 37shares became lost: the shares represented a new interest, and different property. Whether worth more or less in its new form and position is not material, nor whether the new organization increased or diminished the means for the enterprise. Nor is it material, although discussed by plaintiff, whether the new organization is reponsible for the debts of the old companies. But it is material that the plaintiff did consent to a change of the subject of the contract, so that it is no longer identified, nor the same property which was guaranteed.

But it is not every unimportant change which would work a dissolution of the contract. It must be such a change that a new and different business is superadded to the original undertaking.* The act of the legislature of Indiana allowing railroad corporations to merge and consolidate their stock, was an enabling act—was permissive, not mandatory. It simply gave the consent of the legislature to whatever could lawfully be done, and which without that consent could not be done at all. By virtue of this act, the consolidations in the plea stated were made. Clearwater, before the consolidation, was a stockholder in one corporation, created for a given purpose; after it he was a stockholder in another and different corporation, with other privileges, powers, franchises, and stockholders. The effect of the consolidation “ was a dissolution of the three corporations, and at the same instant, the creation of a new corporation, with property, liabilities, and stockholders, derived from those passing out of existenceMcMahan v. Morrisonf And the act of consolidation was not void because the State assented to it, but a non-consenting stockholder was discharged.^ Clearwater could have prevented p. 41this consolidation had he chosen to do so; instead of that he gave his assent to it and merged his own stock in the new adventure. If a majority of the stockholders of the corporation of which he was a member had undertaken to transfer his interest against his wish, they would have been enjoined.* There was no power to force him to join the new corporation, and to receive stock in it on the surrender of his stock in the old company. By his own act he has destroyed the stock to which the guaranty attached, and made it impossible for the defendants to perform their agreement. After the act of consolidation the stock could not have any separate, distinct market value. There was, in fact, no longer any stock of the Cincinnati, Cambridge & Chicago Short Line Railway.

1. Parties excepting to a report of a commissioner in admiralty proceedings, should state, with reasonable precision, the grounds of their exceptions, with the mention of such other particulars as will enable the court to ascertain, without unreasonable examination of the record, what the basis of the exception is. Ex. Gr. If the exception be that the commissioner received “improper and immaterial evidence,” the exception should show what the evidence was. If, that “he had no evidence to justify his report,” it should set forth what evidence he did have. If, that “he admitted the evidence of witnesses who were not competent,” it should give their names, and specify why they were incompetent, what they swore to, and why their evidence ought to have been rejected. 2. This same necessity for specification it is declared—though the case was not decided on that ground, the point not having been raised on argument—exists in a high degree in regard to an answer put in to an p. 44admiralty claim, which answer ought to be full, explicit, and distinct; and hence a defence to a libel for collision, which sets forth that the injured vessel “lay in an improper manner, and in an improper place,” without showing in any respect wherein the manner, or why the place was improper, is insufficient, it seems, as being too indefinite. 3. Objections to want of proper parties being matter which should be taken in the court below, a party cannot, in an admiralty proceeding by the owners of a vessel, to recover damages for a cargo lost on their ship by collision, object here, for the first time, that the owners- of the vessel were not the owners of the cargo, and therefore that they cannot sustain the libel. Independently of this, as vessels engaged in transporting merchandise from port to port are “carriers”—if not exactly “common carriers”—and as carriers are liable for its proper custody, transport and delivery, so that nothing but the excepted perils of the sea, the act of God, or public enemies, can discharge them—it would seem that they might sustain the action within the principle of the Propeller Commerce (1 Black, 582).

1. Persons appearing as claimants, or for Jie purpose of making defence in causes civil and maritime, are required, under all circumstances, to answer on oath or solemn affirmation, and the authorities are unanimous that the answer should be full, explicit, and distinct, to each separate article and allegation of the libel, f Claimants merely allege, in this case, that the vessel of the libellants lay in an improper manner, and in an improper place; but the answer does not set forth, or in any form point out, in what manner she lay, or in what respect the manner was improper, nor is there p. 49any definite description of the place where she lay, or any reasons assigned why it was an improper anchorage. Explanations in that behalf are entirely wanting; nor is it possible to determine from the allegations of the answer whether the respondents intended to set up that the place selected as an anchorage was an usual one, and that those in charge of their vessel were thereby misled, or whether that part of the answer was intended as an averment that she lay too near to or too far distant from the shore, and more or less in the pathway of navigation than was customary or necessary. Such indefinite allegations are hardly sufficient to constitute a valid defence; but as no exception was entered to the answer in the District Court, and inasmuch as this point was not made here in argument, perhaps it is but right that the decision of the case should turn upon the merits of the controversy.

vol. i. 4 p. 50had been proper vigilance on the part of those in charge of the respondents’ vessel. Both the courts below held that the respondents were in fault, and we entirely concur in that opinion.

3. None of the exceptions to the report of the commissioner are entitled to any consideration except the sixth. First exception was, that the commissioner allowed improper and immaterial evidence to be introduced by the libellants; but the exception is not accompanied by any report of the evidence objected to, and of course there is no means of determining whether it was proper or improper. Second exception was, that the commissioner had no evidence to justify his finding, which, without a report of the facts, is quite too indefinite to be available for any purpose, and the same remark applies to the third and fourth exceptions, which need not be reproduced. Fifth exception was to the effect that witnesses were admitted to testify as to the value of the vessel who were not competent, and whose evidence should have been rejected; but the names of the witnesses are not given, nor is it stated why they were incompetent, nor what their testimony was, nor on what ground it is claimed that the testimony should have been rejected. Suffice it to say, that in the judgment of this court these several exceptions .are without merit, and were properly overruled. Sixth exception is to the effect that the commissioner improperly reported the value of the cargo as part of the damage, when, in point of fact, the libellants were not entitled to recover therefor. Report of commissioner shows that he estimated the actual damage to the cargo as well as the actual damage to the vessel, and the decree states that the report, as made, was confirmed by the court. Taken together, therefore, the report and decree affirm the principle that the libellants, under the circumstances of this case, were entitled to recover both for the damage to the vessel and cargo. Appellants insist that the action of the court in confirming the report was erroneous, and that the decree on that account should be reversed. Common carriers, however, it is conceded, are liable for the safe custody, due transport, and right delivery p. 51of goods and merchandise intrusted to them to he conveyed from one port or place to another; and where the owners of the ship or vessel damaged by a collision sustain that relation to the cargo, it is admitted that they may recover for its loss or injury in the suit for the collision, if the libel is properly framed and the proofs sustain the charge. Admission to that effect could hardly have been withheld, as it was so decided by this court in the recent case of the Propeller Commerce,* to which reference was very properly made. But it is contended that the decision in that case was placed exclusively upon the ground that the lake boat Isabella was a common carrier in the strict technical sense, and the argument is that the schooner of the libellants was not such a carrier, and, therefore, that the rule adopted in that case cannot be applied in the case under consideration. Whether all ships and vessels employed in transporting goods or merchandise from port to port are, strictly speaking, common carriers or not, it is not necessary to determine in this case. Suffice it to say, that they are carriers, and as such are liable for the safe custody, due transport, and right delivery of the goods or merchandise which they receive and undertake to transport, and nothing can discharge them from the obligation of the undertaking, as specified in the bill of lading, but the excepted perils, or the act of God, or the public enemy. Liability, therefore, of the schooner of the libellants as a carrier, was precisely the same as that of the lake boat Isabella, in the case referred to, so that the rule adopted in that case is fully applicable to the case at bar.f Undoubtedly, all persons interested in a cause of collision may be joined in the libel for the prosecution of their own claims and the protection of their own interests. Owners of the vessel and the shippers of the cargo, for example, and all other persons affected by the injury, may be made parties to the suit, or it may be prosecuted by the master as the agent of all concerned. Where it appears that the party or parties named as libellants are competent to prosecute the suit, the nonjoinder of

* 1 Black, 582. t The Niagara v. Cordes, 21 Howard, 26; Clark v. Barnwell, 12 Id., 272. p. 52others having an interest in the controversy must be shown by exception, and, if not made to appear in the court below, cannot be made available as an original objection in the appellate tribunal. Objections to parties, or for the want of proper parties, should be made in the court below, where amendments may be granted in the discretion of the court. Parties improperly joined may, on motion, be stricken out, and new parties may be added by a supplemental libel or petition.* Service of regular process is a warning to all parties who have any interest in the cause to come in and protect their interest; and unless they do so, if due notice was given, they are bound by the decree.f Amendments are readily granted in the Admiralty Court, as carrying out the maxim that all the world are parties to the proceeding; and if due notice be given, and any one interested fails to appear, he cannot thereafter have any ground of complaint. Collision suits are frequently prosecuted by the owners of the injured vessel for damages to the cargo as well as to the vessel, and it does not appear that any serious embarrassment has grown out of the practice. Manifestly, where the prosecution is instituted by one or more parties for themselves and others not named, it would be more regular that it should be so averred in the libel; but as there can be only one prosecution for the same collision, it is not perceived that the omission of that averment can operate to the prejudice of the claimant.^ Persons appearing as claimants may object to the want of proper parties, and it may be that, if the exception is seasonably and properly taken, the proceeding cannot be sustained. On that point, however, we express no decided opinion, but leave the question to be determined when it shall arise. Suit in this case was commenced by the owners of the vessel, and no exception was taken to the nonjoinder of the shippers of the cargo, either in the pleadings or in any stage of the proceedings, prior to the appeal. Under these circumstances, we are all of the p. 53opinion that the objection must be overruled.* Ko inconvenience will result from this rule to the claimants of the other vessel, and there will still be sufficient power in the court to afford protection to the rights of the shipper of the cargo, provided proper measures are taken by him to assert his rights before the controversy is completely ended. Where the suit is commenced by the owners of the injured vessel, it is undoubtedly competent for the owners of the cargo to petition to intervene for the protection of their interests at any time before the fund is actually distributed and paid out of the registry of the court. Our conclusion is, that the suit was well brought, and that it was well and properly prosecuted in the name of the libellants. Case does not show that the libellants are not the owners of the cargo; but if not, the real owners thereof may still intervene.