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Central Law Journal.

examples. Is it to be wondered, therefore, that the lawyers of the west who were the

leaders of her successful advancement and ST. LOUIS, MO., AUGUST 23, 1901.

who assisted her in cutting the Gordian Knot of many a legal difficulty which her states.

men had failed to solve by code or statute, On Wednesday morning, August 21st, in should have caught her independent spirit the city of Denver, Colorado, Hon. Edmund and finally forged their way into the very Wetmore, of New York, will open the forefront of the profession-men like Stephen twenty-fourth annual meeting of the Ameri: J. Field, David J. Brewer and John F. can Bar Association. This is the first time Dillon, the first editor of the CENTRAL LAW this association has crossed the Mississippi, JOURNAL, who for clearness of perception and in this respect is a notewortby recogni- / and originality of thought have had no sution of the western lawyer. There was a periors, and whom the country has delighted time when lawyers and laymen of the east to honor, and in' whose sagacity and knowldeceived themselves with the idea, that in edge of the law it never hesitated to confide. the vast empire lying between the Father of We repeat, therefore, that the holding of Waters and the Pacific Ocean, law and or- the American Bar Association in the city der were pilgrims and strangers in the land, of Denver is a memorable recognition of and that in all disputes, whether civil or western advancement in jurisprudence, and otherwise, the gun or the bowie knife was | one wbich the members of the profession the arbitrament of last resort. In a few in from that great section of our country should stances, the eastern imagination in some not fail to acknowledge by their large and wild range of flight would insist that in enthusiastic attendance. such cities as St. Louis, Denver and Kansas City, indians with their squaws and papooses NOTES OF IMPORTANT DECISIONS. impeded traffic in the streets and laid in wait upon the highway. Gradually, in the nat SURETIES-CONTRACT OF INDEMNITY.-Supural course of events, this has all been pose A replevies goods in the hands of B. A changed. The vigorous young blood of the

obtains two sureties to go on his bond, who, how

ever, are led to sign the bond on the written west, overcoming its environment, asserted

promise of C, a third person having no interestin its superiority, not only in the sterner arts the suit, that he will indemnify them against all of husbandry and manufacture, but also in loss, on account of their contract of suretyship. the refinements of civilization. In jurispru B, the defendant, recovers judgment for $3,000. dence her advance has been remarkable.

A and his two sureties, however, are insolvent.

Can B be subrogated to the position of the sureThrowing off the obsolete and unreasonable

ties and enforce the contract of indemnity against exactions of the common law with such rash

C? That was the question for decision in the case abandon as to amaze the eastern jurist, who of Henderson-Achert Lithographing Co. v. John could conceive of no larger horizon, she ap Shillito Co. (Ohio), 60 N. E. Rep. 295, where it plied herself to the solution of new and

was held that since the sureties on an undertakdifficult problems, with some of which the

ing in replevin have no remedy at law or in equity

upon a contract to indemnify them against loss common law had never grappled, and many

on account of their suretyship, until such loss has of which it was not competent to solve. occurred, the defendant himself in the replevin With a mind absolutely free from prejudice, suit, after recovery of judgment, has no such she took from both the civil and common remedy, even though the sureties and judgment law those principles which experience had

debtor be absolutely insolvent and the judgment

be not otherwise collectible. The defendant in proven to be suitable to her condition, but

this action was the indemnitor C and the plaintiff where neither source of jurisprudence had

was B, the judgment debtor in the replevin suit. anything satisfactory to offer, with remark The obligation expressed in the defendant's obliable independence she cut a more direct and gation of indemnity to the sureties on the re-. satisfactory path, and thus gradually de.

pleyin bond, was “to guaranty the sureties

against any loss by being a party to the bond." veloped those great code and statutory sys.

The court said: tems of the west, of which the States of "The defendant is a stranger to the debt, and Colorado and California are the most worthy | its agreement is one strictly of indempity to the

sureties; so that its individual liability on the ation. There is} both} reason and authority to agreement to enforce which this action was sustain the proposition that a covenant, though brought is in no sense a property right of the by a stranger, founded upon a sufficient considerplaintiff's debtor, and satisfaction of the judg ation, to pay or to assume or to stand for a debt ment obtained therefrom would not be payment on which a surety is bound, may be specifically out of the debtor's estate, but out of the estate of enforced in chancery, after the maturity of the a stranger. Confessedly, therefore, the liability debt, if it be not then paid by the covenantor. of the defendant on its covenant to indemnify The reason is, as has already been stated, that by the sureties against loss can be reached by the his failure to pay he has failed to perform his creditor, if at all, only through some right or covenant, and the remedy is within its express remedy that belongs to the sureties. And it terms. The courts have many times so held. should be borne in mind that the defendant's ob But on no sound principle can a court of chancery, ligation does not arise out of any principle of any more than a court of law, compel an indemequity, but is created by special agreement of the pitor to perform his covenant in advance of the parties. Except for his express agreement, the happening of the contingency or event upon defendant would have nothing to do with the which, by its terms, it is to be performed. Such liability of the sureties. That agreement, there a remedy would necessarily involve, not the enfore, which alone created must determine the forcement of the contract made by the party, but extent of the defendant's liability, both at law its modification by the court, and its enforcement and equity; for there is no principle upon which in that modified form."'. a court of equity or law can enlarge the legal effect of the agreement. It seems self-evident

JURISDICTION OVER THE MAIN BODY that the rights of the creditor, through subrogation to the remedies of the sureties, can, in no

OF THE OHIO RIVER. case, exceed those of the latter, and that, until the indemnitor's covenant has been broken, or there Although one hundred years have elapsed has been some failure to perform it, no action | since the compact between Kentucky and can be maintained thereon by either. This was Virginia was approved, the latter portion of declared in Trust Co. v. Reeder, 18 Ohio, 35, 47,

one section, has never been construed by the and there is no diversity of authority on that

Supreme Court of the United States, and as subject. There is an essential difference, in legal effect, between covenants of indemnity,

that tribunal may at no distant day be called strictly,—that is, of indemnity against loss,-and upon to construe it, I presume that it will covenants to pay or assume or stand for the debt,

not be inappropriate for me to offer some or a surety's liability thereon. A right of action

suggestions as to the construction of the secaccrues on those of the latter class as soon as

tion in question. As there has been a great the debt matures and is unpaid, because the liability then becomes absolute, and the failure to

deal of contention over the construction of pay is a breach of the express terms of the cove the later portion of section 11 of the compact, nant; while those of the former class are not I made an investigation of the matter merely broken, and no right of action accrues until the

for historical information, and after a careful indemnitee has suffered a loss against which the

examination, I have written a few suggescovenant runs. This distinction grows out of the express terms of the contract, and is well estab

tions, as to how the later portion of the seclished by authority. It is expressed by Mr. Jus tion should be construed. Section 11 of the tice Swayne in Wicker v. Hoppock, 6 Wall. 94-99, compact between Kentucky and Virginia 18 L. Ed. 752, 753, as follows: 'In that class of says: "Seventh, that the use and navigacases (contracts of indemnity) the obligee can

tion of the river Obio, so far as the territory not recover until he is actually damnified, and he

of the proposed state, or the territory which can recover only to the extent of the injury he has sustained up to the time of the institution of

shall remain within the limits of this comthe suit. But there is a well-settled distinction monwealth lies thereon, shall be free and. between an agreement to indemnify and an common to the citizens of the United States, agreement to pay. In the latter case a recovery

and the respective jurisdiction of this commay be had as soon as there is a breach of the

monwealth and of the proposed state, on the contract, and the measure of damages is the full amount agreed to be paid.' That the distinction

river as aforesaid, shall be concurrent only obtains at law counsel concedes. But it is in with the states which may possess the opsisted that a different rule prevails in equity, posite shores of the said river." The queswhich, it is claimed, will entertain a suit for the

tion to be discussed is: By the clause "and specific performance of indemnifying covenants

the respective jurisdictions of this common. before a loss has been sustained, by compelling the payment or discharge of the surety's obliga

wealth, and of the proposed state on the tion, for his better and more complete exoner

river as aforesaid, shall be concurrent only

with the states which may possess the oppo the river in herself in the deed of cession. site shores of the said river" did Virginia And the deed of cession plainly shows that mean to give concurrent jurisdiction with Virginia wished to retain the jurisdiction of herself and Kentucky, over the main body of the Obio river in herself. the Obio river, both civil and criminal, to 2. All right of soil or jurisdiction Virginia the states, wbich are now Ohio, Indiana and bad in the river was transferred to Kentucky Illinois ? As this exact question is now opposite the shore of the latter state. pending before the Court of Appeals of Ken 1 3. The doctrine of contemporaneous contucky, and being a public question, in which struction is applicable. The construction the people of the six states of West Virginia, placed upon section 11 by the statutes passed Virginia and Kentucky; and Ohio, Indiana nearly at the same time, as the clause in and Illinois are interested, for the readers of question can be restored to for the purpose this journal, I have prepared the following of construing it. This rule especially applies suggestions for the construction of this where the clause, as the one in question is, is clause: "And the respective jurisdictions ambiguous. The compact between Ken. of this commonwealth, and of the proposed tucky and Virginia was approved December state, on the river as aforesaid, shall be con 18, 1789, by both states. Congress enacted current only with the states which may pos laws admitting Kentucky into the Union as a sess the opposite shores of the said river.” state in 1791, 1792, according to the provis

1. All statutes relating to the same subject ions of this compact. In April, 1802, the must be construed in pari materia. So, state of Ohio was admitted into the Union, therefore, all resolutions of the Virginia and its boundary was fixed at the Ohio river, legislature, relating to the cession of the but nothing was said in the act of congress northwestern territory, the deed of cession admitting Ohio into the Union, about Ohio of the northwestern territory, the ordinance having concurrent jurisdiction over the Ohio of 1787, by congress accepting the grant of river. On April 19, 1816, congress passed the same, the act of 1788, by the legislature an act authorizing the inhabitants of the terof Virginia amending the deed of cession, at ritory of Indiana to form a State. It fixed the request of congress, and the acts of con the boundary of Indiana on the west, at the gress admitting Kentucky, Indiana, Illinois middle of the Wabash, river, and on the south and Ohio into the Union as states, the com by the Ohio river. Notice the distinction. pact between Kentucky and Virginia must be The boundary is fixed in the middle of one all construed as a whole. The statutes can river, and on the north of the other river. be found as follows: (History of the north But further in this act it is said: “That the western grant, 10 Henning's Statutes, page said state shall have concurrent jurisdiction 547; Acts of General Assembly of Virginia, on the river Wabash, with the state to be authorizing the deed of cession of the north formed west thereof, so far as the said river western territory to the United States, 11 shall form a common boundary to both.” Henning's Statutes, page 326. Deed of ces But the act does not give Indiana concurrent sion, Ibid., page 571; act admitting Ken jurisdiction with the state of Kentucky over tucky into the Union, 1 U. S. Stat. at Large, the Ohio river. This omission shows that page 189; act admitting Ohio into the Union, the federal government rever assumed that 2 Statutes at Large, page 173; act admitting the proposed states" (Ohio, Indiana and Indiana, 2 Statutes at Large, page 103; act Illinois), had concurrentjurisdiction with the admitting Illinois into the Union, 3 Statutes state of Kentucky over the Ohio river. Two at Large, page 428).1 In none of these stat years later (1818) Illinois was admitted into utes, except the compact between Virginia the Union and its boundary was fixed at the and Kentucky, is there any language that Indiana line of the Wabash river (the middle could possibly be construed that Virginia of the river), and the middle of the Missiswished to confer on the states north of the sippi river, and on the Ohio river. Illinois Ohio river, concurrent jurisdiction over that is given concurrent jurisdiction over the Wariver. Virginia retained all jurisdiction of

e Act of Congress admitting Kentucky into the 1 Handley v. Anthony, 6 Wheat. 385; Shanks v. Du. Union, 1 U. S. Stat, at Large, p. 189; Missouri v. point, 3 Pet. 256; Keyser v. Coe, Fed. Cas. No. 7,750. | Kentucky, 11 Wall. 401.

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bash river, with the state opposite it, but the over the Ohio river until the constitution of act omits to give the state concurrent juris- | 1848, sixty years after the compact between diction over the Ohio river. This omission Kentucky and Virginia, if she has ever is significant. It shows that congress did claimed it at all. The constitution of Illinot regard the compact of Virginia and Ken nois of 1818, fixed the boundaries of that tucky, as surrendering the right of exclusive state according to the act admitting Illinois jurisdiction in the Ohio river with any states into the Union, but in the constitution of or proposed state. In 1820, Virginia de 1848 it is provided: “This state shall exerclared the Ohio river lying opposite her was cise such jurisdiction upon the Ohio as she to be considered as compounded, and is de is now entitled to, or such as may be agreed clared to be compounded within the bodies upon by this state and the state of Kenof several of her counties subject to the pro tucky.” It is conceded by this provision of visions contained in the article of compact the Illinois constitution, that Kentucky has between Kentucky and herself. This would jurisdiction over the Ohio river except the seem to exclude the idea that the states on jurisdiction that Illinois had already acthe opposite shore of the Ohio river had con- quired, namely, jurisdiction above the low. current jurisdiction over the main body of water mark on the northern shore. Prior to the river. Kentucky bad ten years prior to 1848 Illinois bad never claimed concurrent that time, enacted a statute to the same ef jurisdiction over the Ohio river with Kenfect. Even if the federal government which tucky, and she only claimed in the constituowned the northwestern territory, at the tion of 1848 to the low-water mark on the time of the compact between Kentucky and northern shore, and conceded to Kentucky Virginia, bad acquired concurrent jurisdic the jurisdiction beyond the low-water mark tion with those states over the main body of on the northern shore. The same provision the Ohio river, it waived it by the acts ad. as to the jurisdiction of Illinois over the Ohio mitting Ohio, Indiana and Illinois as states river that was in the constitution of that into the Union, and not giving them concur state of 1848, is in the constitution of 1870. rent jurisdiction over the Ohio river.

Illinois, therefore, has never claimed concur4. Even if the federal government had ac rent jurisdiction with Kentucky over the quired concurrent jurisdiction over the Ohio main body of the Ohio. river, it did not surrender it to Indiana as 7. In the constitution of Indiana of 1816, the act which admitted Indiana into the the preamble states that the constitution is Union as a state did not give it. Could In formed consistent to the law of congress en: diana acquire any right not given her by the titled: "An act to enable the people of federal government? She derived her whole Indiana territory to form a state.” That existence from the federal government, and act fixed the limits of the state as stated in she can claim no right from any source, ex number 3 of this article on the Ohio river, cept that government.

and it did not give Indiana concurrent juris5. Ohio has never enacted any legislation diction over the Ohio river, and so conseclaiming concurrent jurisdiction over the quently Indiana never claimed concurrent main body of the Ohio river, that I can find jurisdiction over the Ohio river in the first after an earnest and painstaking investiga constitution of that state. There was also tion. Nor has its supreme court ever ex an ordinance passed by the first constitupressly claimed jurisdiction over the Obiotional convention of Indiana, accepting the river, although there is some obiter dictum boundaries of the state as fixed by congress, in one case claiming that the state of Ohio in the act to enable the people of Indiana owned the Ohio to the middle of the river. I territory to form a state. Also in the first understand that the executive officers of Ohio constitution of Indiana (article 5, section 2) have never claimed jurisdiction over any the jurisdiction of the Supreme Court of Inpart of the Ohio river above low-water mark diana is fixed "with the limits of the state;' on the Ohio shore.

these limits did not include concurrent juris6. Illinois never claimed any jurisdiction diction over the main body of the Ohio river,

neither by the act of congress admitting In. 8 Code of Virginia, p. 50. 4 Morehead & Brown, vol. 1, page 268.

| diana, nor by the ordinance of the constitu. tional convention of Indiana, accepting the not passed upon, although Chief Justice act of congress defining the boundaries of Marshall, intimated that the clause was the state. In the constitution of 1851, In. simply a repetition of the deed of cession of diana, after the lapse of over sixty years the Northwestern territory. In Penn v. from the date of the compact between Ken- | Bridge Co.,12 the supreme court decided tucky and Virginia asserted by legislative ac- that under section 11 of the compact betion the claim that she had concurrent juris tween Kentucky and Virginia the navigation diction with Kentucky over the Ohio river of the Ohio, was for the citizens of the for the first time.

United States. In Sherlock v. Alling, 13 If the compact between Kentucky and the exact question as to whether Virginia gave Indiana jurisdiction, which was Indiana has concurrent jurisdiction with concurrent in those states, did not Indiana Kentucky over the main body of the Ohio abandon that concurrent jurisdiction by wait was presented. The Supreme Court of Ining for sixty years, after the compact, and diana had rested its decision upon that thirty-five years after she became a state be ground alone. The supreme court declined fore she enacted legislation asserting her to pass upon the question as it decided that claim? The first case on this ques the collision between the two steamboats, out tion, and where the supreme court first of which the action grew, took place above the claimed jurisdiction is one of Carlisle v. low water mark of the Indiana shore. But State. That case has been followed in a num there is an intimation that had the collision ber of subsequent cases by that court. taken place below the low water mark, that They are all cited in Packet Company v. the laws of Kentucky, governing the right of Mickey.6

an administrator to sue, would have con8. The fact that Indiana has assumed jur trolled. Again, in Indiana v. Kentucky, 14 isdiction over the Ohio river for forty years, the question was argued by the late senator does not confer it, if the jurisdiction has been Joseph E. McDonald, but the court did not wrongfully assumed.?

pass upon it. 9. The clause of the compact between 13. The title to the land under the Ohio Kentucky and Virginia in question was for river belongs to Kentucky, Virginia and the purpose of giving free navigation to the West Virginia, and they claim and exercise citizens of the United States.s

the power to grant title thereto to their citi10. The only grant meant in this clause zens as patentees. 15 This goes to low water was concurrent jurisdiction over the north mark on the north bank under the original ern shores.

deed of cession from Virginia to the federal 11. Indiana, not being a party to the com government. The laws of state have no pact between Kentucky and Virginia can extra territorial force. The power of a state take no advantage under the compact.10 law ends at the territorial line. If one state

12. The construction of the clause in claims jurisdiction over the land of another question bas been argued before the Supreme state she must show some grant to her, from Court of the United States, several times, the state within which the land is situated. but in every instance that court has de Failing in this, the claim fails. Kentucky clined to pass upon the question as to wheth has never granted to Indiana any jurisdiction er or not concurrent jurisdiction, was con over the Ohio river, concurrent or otherwise. ferred over the main body of the Ohio river, When congress defined the boundary of Inby the clause in question. In Handley v. diana, in her enabling act, it was done in Anthony," the question was presented but accordance with the act of cession. Con

gress was the sovereign power on this sub533 Ind. 55 (1869).

ject. In defining the north bank of the 6 142 Ind. 310. * Coffee v. Grover, 1-23 U. S. 29, and the authorities 12 13 How. 618. therein cited. Keyser v. Coe, Fed. Cas. No. 7,750. 18 93 U. S. 101.

& Penn v. Bridge Co., 13 How. 565; Garner's Case, 3 14 136 U. S. 479. Gratt. 710, 711, 735.

18 Indiana v. Kentucky, 136 U. S. 479; Henderson 'Garner's Case, 3 Gratt. 675, 731, 734, 742, 752. Bridge Case, 173 U. S. 592, and the authorities 10 Garner's Case, 3 Gratt. 735.

therein cited. State v. Plants, 25 W. Va. 119, 52 Am. 11 5 Wheat. 385.

Rep. 119.

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