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United States Supreme Court

49 U.S. 251

Lord  v.  Veazie

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maine.

A motion was made by Mr. Moor, upon his own account and also as counsel for the City Bank, at Boston, to dismiss the appeal, upon the ground that it was a fictitious case, got up between said parties for the purpose of settling legal questions upon which he, the said Moor and the City Bank, had a large amount of property depending. The motion made by Mr. Moor upon his individual account was to dismiss the appeal; that made by him as counsel for the City Bank was in the alternative, either to dismiss the suit, or order the same back to the Circuit Court for trial, and allow the said City Bank to be heard in the trial of the same.

It appeared upon the documents and affidavits filed, that, in 1842, the Bangor and Piscataquis Canal and Railroad Company, in the state of Maine, which had been chartered by the state, executed a deed to the City Bank, at Boston, by virtue of which that bank claimed to hold the entire property of the company.

In 1846, the legislature of Maine granted to William Moor and Daniel Moor, Jun., their associates and assigns, the sole right of navigating the Penobscot River.

In July, 1847, an act was passed additional to the charter of the first-named company, by virtue of which a reorganization took place. The City Bank claimed to be the sole proprietors or beneficiaries under this new charter, and John W. Veazie, who held a large number of shares in the original company, claimed that the management and control were granted to the stockholders.

In August, 1848, John W. Veazie and Nathaniel Lord executed a written instrument, which purported to be a conveyance by Veazie to Lord of 250 shares of the stock of the railroad company, for the consideration of $6,000. This deed contained the following covenant:--

'And I do hereby covenant and agree to and with the said Lord, that I will warrant and defend the said shares, and all property and privileges of said corporation incident thereto, to the said Lord, his executors, administrators, and assigns, and that the said shares, property, and privileges are free and clear of all encumbrances; and I further covenant with said Lord, that the stockholders of said company have the right to use the waters of the Penobscot River within the limits mentioned in their charter for the purposes of navigation and transportation by steam or otherwise.'

In September, 1848, this action on the above covenant was docketed by consent, and a statement of facts agreed upon by the respective counsel, under which the opinion of the court was to be taken, viz., that if the claim of the City Bank was valid, then the plaintiff was entitled to recover; or if the canal and railroad company, or the stockholders thereof, had not a right to navigate the river, then the plaintiff was also entitled to recover. This last prayer involved Moor's right.

In October, 1848, the court, held by Mr. Justice Ware, gave judgment for the defendant pro forma, at the request of the parties, in order that the judgment and question might be brought before this court, and the case was brought up by writ of error, as before mentioned.

On the 31st of January, 1849, the record was filed in this court, and on the 2d of February, printed arguments of counsel were filed, and the case submitted to the court on the 5th. It was not taken up by the court, but continued to the next term.

On the 28th of December, 1849, Mr. Wyman B. S. Moor filed, with the motion to dismiss, as above mentioned, an affidavit, stating the pendency of a suit by him against Veazie in the courts of Maine, which involved the same right of navigating the river which was one of the points of the present case. He further stated his belief, that this case was a feigned issue, got up collusively between the said Lord and Veazie, for the purpose of prejudicing his (Moor's) rights, and obtaining the judgment of this court upon principles of law affecting a large amount of property, in which he and others were interested.

When the motion came on for argument, a number of affidavits were filed in support of and against the motion. It is unnecessary to state their contents, as they were not particularly commented on by the court. They proved that none of the persons whose interest was adverse to that of the plaintiff and defendant had any knowledge of these proceedings, until after the case was removed to this court, and submitted for decision on printed arguments, although one or more of those most deeply interested resided in the town in which Lord, one of the parties, lived.

The motion was argued by Mr. Moor, in support of, and Mr. Bradbury and Mr. Hamlin against it.

In support of the motion to dismiss, these points were taken by Mr. Moor:--

1. That a fictitious suit, or a feigned issue, or a suit instituted by persons to try the rights of third persons, not parties to the record, is a contempt of court, and will be dismissed on motion. Hoskins v. Lord Berkeley, 4 T. R., 402; 3 Bl. Com., 452; R. J. Elsam, an attorney, 3 Barn. & C., 597; 2 Inst., 215; Brewster v. Kitchin, Comb., 425; Coxe v. Phillips, Cas. Temp. Hardw., 237; Fletcher v. Peck, 6 Cranch, 147, 148.

2. That any person as amicus curiae may make the motion. Rex v. Veaux, Comb., 13; Dove v. Martin, Id., 170; Brown v. Walker, 2 Show., 406; Coxe v. Phillips, before cited.

3. A suit may be shown to be fictitious, either by inspection of the record or by evidence aliunde, or by both. The case of R. J. Elsam, before cited; Hoskins v. Lord Berkeley, before cited; Fletcher v. Peck, before cited; Coxe v. Phillips, before cited.

4. That this is a fictitious suit, or a suit amicably instituted and conducted, to affect the rights of other parties, will appear from the record.

5. That it is an amicable or fictitious suit appears from the facts, that the suit in equity in the Supreme Judicial Court of Maine, Moore v. Veazie, involves the same question as to the construction and constitutionality of the act set forth in printed case, and marked G, as are involved in the case at bar, and that the plaintiff in error is the son-in-law, and the defendant in error is the son, of said Samuel Veazie.

That said suit was in contemplation before the institution of this suit.

That the defendant in error has heretofore set up the same claim to the property of said railroad company against the City Bank as is involved in this suit.

That the existence of this suit was kept from the knowledge of the parties really interested, till the writ of error was entered here.

This court sits for the correction of errors of inferior courts, and not to adjudicate upon the agreement of parties.

There has been no such judgment in this suit that this court will revise by writ of error. Judiciary Act of 1789, § 22 (1 Stat. at L., 84); Act of April 29, 1802, ch. 31, § 6 (2 Id., 159); Lanusse v. Barker, 3 Wheat., 137, 147; McDonald v. Smalley et al., 1 Pet., 621; Shankland v. The Corporation of Washington, 5 Id., 390; Stimpson v. Westchester Railroad Co., 3 How., 553; Dewolf v. Usher, 3 Pet., 269; Zeller's Lessee v. Eckert, 4 How., 298.

Mr. Chief Justice TANEY delivered the opinion of the court.


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).