372

informed, has invested the jury with this power
or privilege. It has been sometimes exercised
by the permission of courts, but its results have
not been such as to recommend it for general
adoption either by courts or Legislatures.

The only instance where this power of increasing the "actual damages" is given by statute is in the patent laws of the United States. But there it is given to the court and not to the jury. The jury must find the "actual damages incurred by the plaintiff at the time his suit was brought; and if, in the opinion of the court, the defendant has not acted in good faith, or has been stubbornly litigious, or has caused unnecessary expense and trouble to the plaintiff, the court may increase the amount of the verdict, to the extent of trebling it. But this penalty cannot, and ought not, to be twice inflicted; first at the discretion of the jury, and again at the disretion of the court. penses of the defendant over and above taxed The ex373] costs are usually *as great as those of plaintiff; and yet neither court nor jury can compensate him, if the verdict and judgment be in his favor, or amerce the plaintiff pro falso clamore beyond tax costs. of law exists allowing the jury to find costs de Where such a rule incremento in the shape of counsel fees, or that

1851

JOSEPH FOWLER, JUNIOR, Appellant,

v.

NATHAN HART.

Reformation of mortgage without notice to subse quent mortgagee-foreclosure and sale thereafter with notice-Estoppe

Real property, in Louisiana, was bound by a judicial mortgage.

of the Bankrupt Act of the United States.
The owners of the property then took the benefit

against the assignee, alleging that he had a mort-
A creditor of the bankrupt then filed a petition
Judicial mortgage, but that, by some error, other
gage upon the same property, prior in date to the
property had been named, and praying to have the
error corrected. Of this proceeding the judgment

creditor had no notice.

dered the mortgage to be reformed, and thus gave *The court being satisfied of the error, or- [+374 be sold free of all incumbrances. Of this proceedthe judgment creditor the second lien instead of the first; and then decreed that the property should ing, and also of the distribution of the proceeds of sale, the judgment creditor had notice, but omitted to protect his rights.

wards assent his claim against a purchaser, who has In consequence of this neglect, he cannot afterbought the property as being free from all incum

brances.

equally indefinite and unknown quantity de- T of the United States for the Eastern Dis

We are of opinion, therefore, that the instruction given by the court in answer to the prayer of the plaintiff was correct.

THIS was an appeal from the Circuit Court
trict of Louisiana.

court.
The facts are stated in the opinion of the

lant, no counsel appearing for the appellee.
It was argued by Mr. Bradley for the appel-
points:
Mr. Bradley thus stated his case and

of William Christy, was indebted to Fowler,
Daniel T. Walden, as indorser of two notes
the complainant, and suit was brought by him
upon these two notes, and judgment recovered,
as above stated.

nominated (in the plaintiff's prayer for instruction) "&c.," they should be permitted to do the same for the defendant where he succeeds in his defense, otherwise the parties are not suffered to contend in an equal field. Besides, in actions of debt, covenant, and assumpsit, where the plaintiff always recovers his actual damages, he can recover but legal costs as compensation for his expenditure in the suit, and as punishment of defendant for his unjust detention of the debt; and it is a moral offense of no higher order, to refuse to pay the price of a patent or the damages for a trespass, which is not willful or malicious, than to refuse the pay-owned the premises described in the petition At that time, Daniel T. Walden held and ment of a just debt. There is no reason, there- of Fowler, and also at the time when the third fore, why the law should give the plaintiff such judgment was converted into a mortgage. Nor an advantage over the defendant in one case, and refuse it in the other. Poor, 21 Pickering, 382; and Lincoln v. The on that property. Just prior to that time, (See Barnard v. Fowler any notice of any equitable mortgage was there then any legal mortgage, nor had Saratoga Railroad, 29 Wend., 435.) Hart, had given him a special mortgage, deWalden, being indebted to the defendant, scribing with particularity certain other proppremises now claimed by Fowler. In this conerty, not embracing or touching any part of the dition of things, Walden was declared bankrupt. Hart then filed his petition in the Bankrupt Court, setting up, as against the assignee and Walden, that there was a mistake in the description of the property intended to be conveyed by Walden's mortgage to him, and claiming that the said mortgage was intended to on the other creditors of Walden. The Bankconvey the premises now claimed by Fowler. rupt Court, however, proceeded to take the No process was served upon Fowler, or upproofs and adjudicate, and in its judgment af firmed the pretensions of Hart, ordered the mistake to be corrected, set up his special mortgage on these particular premises, and ordered them to be sold to satisfy that special mortgage, and the surplus, if any, to be brought into the of that order, and at that sale Hart became the general fund. The sale was made in execution purchaser, for a sum less than the amount of

The instruction to the jury, also, was clearly proper as respected the measure of the dam ages, and that the jury had nothing to do with the question whether their verdict would carry

costs.

The judgment is therefore affirmed.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Massachusetts, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs, for the defendants in error.

Cited 21 How., 213; 23 How., 9; 15 Wall., 231, 453; 1 Otto, 493; 8 Otto, 276; 7 Blatchf., 506; 2 McArthur, 186

207.

of lot No. 1, and about 21 feet 8 inches in the rear of the dividing line of lot No. 5. So that in fact the lot described in the mortgage was alongside of the one which it was pretended was designed to be conveyed, and both were within the description in the said notice to Fowler. He, therefore, was not only neither party nor privy, but he had no notice of such pretended claim to put him on inquiry.

VII. Finally, it does not appear that there ever was any order by the court in bankruptcy to erase and cancel the said mortgage of said Fowler, and the same is now and hath ever been a valid and subsisting lien upon the lot claimed in his petition. In such case the law of Louisi ana is clear that he had a right to proceed against the person holding the land, and to a judgment for the sale of the lot, and an account of the rents and profits in the hands of Hart, holding and claiming the same adversely.

Mr. Justice McLean delivered the opinion of the court:

This is an appeal from the Circuit Court of the United States for the Eastern District of Louisiana.

Fowler filed his bill in the Third District Court of New Orleans, representing that on the 16th December, 1839, he recovered a judgment in the Commercial Court of New Orleans, against Daniel T. Walden and William Christy for $3,530.22, besides interest; that on the 29th December, 1839, he caused the judgment to be duly inscribed in the office of the recorder of mortgages for the Parish of New Orleans, by which the same became a judicial mortgage on the real estate of the defendants in the parish; that Walden afterwards became bankrupt, and 378*] *Christy was appointed his assignee; and that he procured an entry of cancellation to be made by the recorder of judicial mortgages without his consent, and illegally; that the mortgage remains in force.

And the plaintiff states that when the judgment was recorded, and up to the time of the bankruptcy of Walden, he was the owner and in possession of a certain lot of ground and buildings thereon in the City of New Orleans, to wit: in the second municipality, in the square bounded by New Levee, St. Joseph, Commerce, and Julia streets, measuring 23 feet 5 inches front on New Levee Street, by about 125 feet 6 inches in depth on the side nearest St. Joseph Street, 124 feet 7 inches in depth on the side nearest Julia Street, and about 21 feet 8 inches on the rear line; which property is liable to the judicial mortgage of the petitioner; that Christy, the assignee of Walden, sold the same lot to one Nathan Hart, of New York, who took possession thereof, and still remains in possession; that he well kuew, at the time of his purchase, that the petitioner's mortgage was a lien on the same, and that Christy, the assignee, had no power to cancel the same. the petitioner avers that his judgment lien was And good under the 2d section of the Bankrupt Law. On the application of Hart, he being a citizen of New York, the suit was removed from the State Court to the Circuit Court of the United States.

In his answer Hart denies that the petitioner has a mortgage on the property described in his petition; and states that he purchased the 188

1851

same for the sum of $4,700, under a sale of the marshal, on the 16th June, 1845, in pursuance of a decree of the United States District Court, entered the 23d May, 1845, sitting as a court of bankruptcy, in the matter of the bankruptcy of Daniel T. Walden, and confirmed according to law by a sale duly recorded from Christy, the assignee, before a notary public the 19th June, ing been canceled, by order of the judgment of 1845; and clear of all mortgages, the same hav said court, the 23d May, 1845, on a rule, notice of which was duly served on petitioner.

above property was dated 22d May, 1838, the The mortgage of the defendant, Hart, on the judicial mortgage of the petitioner took effect the 29th December, 1839. But after the bank ruptcy of Walden, and before the sale of the property to Hart by the assignee, it was discovered that there was a mistake in the mortgage in describing the property intended to be mortby Hart against Christy, the assignee, and on gaged. To correct this mistake a bill was filed correcting the mortgage so as to describe the the 5th December, 1844, a decree was obtained lot intended to be mortgaged, Of this proceedno notice. ing the petitioner, Fowler, seems to have had

the assignee petitioned the District Court, *Afterwards, on the 24th April, 1845. [*379 stating assignee, the following described property, that there is still in his possesion, as specially mortgaged to Nathan Hart to secure the payment of the sum of $8,655, with interest, which he prays may be sold on certain terms named. The lot above described is stated, and also other property of the bankrupt. The court ordered that due notice of the petition be published in two newspapers printed in the district, ten days at least before the time assigned for the hearing, and that the petition be heard on the 23d May ensuing.

On the 10th May, 1845, the following rule said estate having filed in this court a petition was entered by the court: " as above described, it is ordered by the court The assignee of the that a hearing of the said petition be had on Friday, the 23d May next, at 10 o'clock A. M., when, as one of the mortgage creditors of said estate, you are notified to appear and show cause why the property, as described below, should not be sold upon the terms and in the manner and form set forth in said petition, and why the said assignee should not be authorized to erase and cancel the mortgages, judgments, and liens recorded against said bankrupt, and in favor of certain creditors of the estate, effecting the property surrendered, so that said assignee may convey a clear and unincumbered title to any purchaser thereof, reserving to such creditors all their rights in law to the proceeds of the sale of the said property upon the final distribution thereof."

To this rule was appended the following, with sold: 1. "Property in the second municipality, other descriptions of property ordered to be bounded by New Levee, Commerce, St. Joseph, and Julia streets, with the improvements thereon, mortgaged to Nathan Hart. Terms, one third cash, the balance on a credit of twelve and eighteen months."

name of Joseph Fowler was appended, and the To the property above designated No. 1, the marshal returned "that he had received the

sane on the 12th May, 1845, and on the same day served a copy of the rule on the withinnamed Joseph Fowler.

The principal objection to the validity of the sale of the property to Hart is founded on the procedure in the District Court, for the correction of the misdescription of the mortgage. As between the mortgagor and mortgagee, there can be no objection to this proceeding. The District Court had jurisdiction of the matter, and it is but the ordinary exercise of the powers of a court of chancery to reform a mortgage or other instrument so as to effectuate the intention of the parties. But it is alleged that Walden having become a bankrupt, his property was vested in his assignee for the benefit of his credit380*] ors, and that the judicial *mortgage of the petitioner could not be affected by a pro cedure in which the petitioner was not a party, and of which he had no notice.

The assignee generally represents the creditors, and being made a party to the proceeding on the mortgage, he appeared and denied the allegations of the petition of the mortgagee; but on the hearing the District Court was satisfied of the truth of the allegations in the bill, and reformed the mortgage so as to describe truly the property intended to be mortgaged. It is true that Fowler, the petitioner, was not a party to this proceeding, and if the action of the District Judge had here terminated, it would be difficult to maintain the decree.

Although there is some discrepancy in the description of the property contained in the notice from that in the decree reforming the mortgage, yet substantially it is believed to embrace the same property; and as the [*381 notice was served upon the petitioner, as having a mortgage on the property, we think it was sufficient.

The decree of the Circuit Court is affirmed, with costs.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby affirmed.

Cited-3 Bank. Reg., 163; 9 Bank. Reg., 310.

JOHN H. HOWARD, Plaintiff in Error,

v.

STEPHEN M. INGERSOLL.

JOHN H. HOWARD AND JOSEPHUS ECK-
OLLS, Plaintiffs in Error,

v.

STEPHEN M. INGERSOLL.

Construction of Act of Commissioners fixing western boundary of Georgia-“ western bank of river."

In 1802, when Georgia ceded her back lands to the United States, she had jurisdiction over the whole of the Chattahoochee River, from its source to the thirty-first degree of north latitude.

By the 11th section of the Bankrupt Law the court had power to order the assignee to redeem and discharge "any mortgage or other pledge or deposit, or lien upon any property," &c. It also necessarily had the power, on the sale of mortgaged premises, to distribute the proceeds as the law required. And in regard to the property in question, it appears that due notice was given to Fowler of the application for the sale of it by Hart, who claimed to have a special mortgage on it; and the property was substantially described, and the day stated on which the court would act on the application. And in addition, a notice was published in two newspapers ten days before the time set for hearing by the court. The object of this notice was stated to be, to make an unembarrassed title to the purchaser, and enable Fowler to make any objections he might have to the sale, and the cancelment of his mortgage. That the from fifteen to twenty feet high, between the botThe river flows in a channel, between two banks, rights of creditors were reserved as to the pro-tom of which and the water, when the river is at a ceeds of the mortgaged premises on a final distribution.

Whether the petitioner, Fowler, took any steps under this notice does not appear; and in the absence of such evidence, it may well be presumed that he acquiesced in the procedure. The notice afforded him an opportunity to as

sert his rights, and to object to the decree for

the reform of Hart's mortgage, of which he now complains, as fully as if he had been made a party to that proceeding. This he could have stated as an objection to the sale of the premises, or in claiming the proceeds of that sale. The reform of the mortgage by the court could not have estopped him from the assertion of his rights, as he was not a party to that proceeding of the court. But, having neglected to assert his rights on the above occasion, it is now too late to set them up against the purchaser of the property at the sale.

The rule is that, where a power possesses a river, and cedes the territory on the other side of it, making the river the boundary, that power retains the river, unless there is an express stipulation for the relinquishment of the rights of soil and jurisdiction over the bed of such river.

and situated on the west of a line running along When Georgia ceded to the United States all the the western bank of the Chattahoochee River, she retained the bed of the river and all the land to the east of the line above mentioned.

low stage, there are shelving shores, from thirty to sixty yards each in width.

The boundary line runs up the river on and along its western bank, and the jurisdiction of Georgia in the soil extends over to the line which is washed by the water, wherever it covers the bed of the river within its banks.

TESE two cases were argued and decided

together. The suits related to the same tract of land and the rights of the same parties, although they came up from different states. The first, which is referred to in the opinion of the court as No. 121, was an action on the case brought by Ingersoll in the Circuit Court of Alabama (state court) to recover damages for the wrongful obstruction, by Howard, of the Chattahoochee River, whereby the waters of that stream were backed in such a manner as to overflow Ingersoll's land and obstruct the use of his mill. This mill was built between the high bank of the river and low water

mark, as it was called, so that when the water | to sixty yards. Immediately under the western was high it was overflowed; but when the abrupt and high bank, and within the latitude water was low, it was on dry ground. At such of the north and south boundary line of plainttimes, it was worked by a race fed from the iff's land, said lines being drawn down to the river by means of a wing dam. Howard built water's edge, and in the bed of the river, as 382* a *dam below, which backed the water above described, east of said western abrupt upon the mill, and impeded its operations. On and high bank, the plaintiff erected a mill the trial of this cause the jury returned a ver- previous to 1842, and continued the possession dict in favor of Ingersoll for the sum of $4,000. and use thereof until overflowed by defendant's The cause was carried to the Superior Court of dam. The place on which said mill was situAlabama, where the judgment was affirmed; ated was covered with water in ordinary high whence it was brought to this court under the water, but was bare and dry in ordinary low 25th section of the Judiciary Act. HOWARD & ECKOLLS, Plaintiffs in Error,