The statute of New Hampshire providing for proceedings against
mill owners to recover damages resulting from overflows of land
caused by dams erected by them contained, among other things, a
provision that
"if either party shall so elect, said court shall direct an
issue to the jury to try the facts alleged in the said petition and
assess the damages, and judgment rendered on the verdict of such
jury, with fifty percent added, shall be final, and said court may
award costs to either party at its discretion."
In this case, both parties elected trial by jury, which resulted
in a verdict for damages for the defendant in error.
Held
that the plaintiff in error, by availing itself of the power
conferred by the statute and joining in the trial for the
assessment of damages, was precluded from denying the validity of
that provision which prescribes that fifty percent shall be added
to the amount of the verdict, as the plaintiff in error was at
liberty to exercise the privilege or not, as it thought fit.
This was a writ of error to reverse a judgment of the Supreme
Court of New Hampshire against the Electric Company, a corporation
of the State of New Hampshire, the plaintiff in error, upon a
petition filed by Samuel I. Dow for the assessment of damages
occasioned to his land by an overflow caused by a dam erected by
the defendant company in the Piscataqua River. The defendant
company also filed a petition praying for an inquisition into the
question of damages. The proceedings were had under the general
mill act of that state, approved July 3, 1868. Both parties elected
trial by jury, which resulted in a verdict for Dow in the sum of
$1,500. The plaintiff moved that fifty percent be added to the
amount of the verdict in pursuance of a provision of the statute
which is as follows:
"If either party shall so elect, said court shall direct an
issue to the jury to try the facts alleged in the said petition and
assess the damages, and judgment rendered on the verdict of such
jury, with fifty percent added, shall be final, and said court may
award costs to either party at its discretion. "
Page 166 U. S. 490
The defendant objected to this motion on the ground that said
provision of the statute requiring the court to add fifty percent
to the damages assessed by the jury was in violation of the
Constitution of the United States. The question thus raised was
reserved by the trial judge, and certified to the law term of the
supreme court of the state, which overruled the defendant's
contention, and judgment was accordingly entered in the supreme
court for the amount of the verdict, with fifty percent added, and
costs, to review which this writ of error was sued out.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
We agree with the Supreme Court of New Hampshire in thinking
that the plaintiff in error, by availing itself of the power
conferred by the statute and joining in a trial for the assessment
of the damages, is precluded from denying the validity of that
provision which prescribes that fifty percent shall be added to the
amount of the verdict. The act confers a privilege, which the
plaintiff in error was at liberty to exercise or not, as it thought
fit.
Clay v. Smith,
3 Pet. 411, was a case where the plaintiff below, a citizen of the
State of Kentucky, instituted a suit against the defendant, a
citizen of the State of Louisiana, for the recovery of a debt
incurred in 1808, and the defendant pleaded his discharge by the
bankrupt law of Louisiana in 1811, under which, according to the
provisions of the law, "as well his person as his future effects"
were forever discharged from all the claims of his creditors. Under
this law, the plaintiff, whose debt was specified in the list of
the defendant's creditors, received a dividend of ten percent on
his debt, declared by the assignees of the defendant. It was
held
Page 166 U. S. 491
by this Court that the plaintiff, by voluntarily making himself
a party to those proceedings, abandoned his extraterritorial
immunity from the operation of the bankrupt law of Louisiana and
was bound by that law to the same extent to which the citizens of
Louisiana were bound.
In
Beaupre v. Noyes, 138 U. S. 397, a
similar question was presented. There, it was contended on behalf
of creditors, the plaintiffs in error, that an alleged assignment
was conclusively fraudulent as to them for want of an immediate
delivery, followed by an actual and continued change of possession,
of the goods assigned; that their right so to treat the assignment,
although such right was specially set up and claimed, was denied,
and that consequently they were denied a right arising under an
authority exercised under the United States. But this Court
said:
"Whether the state court so interpreted the territorial statute
as to deny such right to the plaintiffs in error we need not
inquire; for it proceeded in part upon another and distinct ground,
not involving any federal question and sufficient in itself to
maintain the judgment without reference to that question. That
ground is that there was evidence tending to show that the
plaintiffs in error acquiesced in and assented to all that was
done, and waived any irregularity in the mode in which the assignee
conducted the business, and that the question whether they so
acquiesced and assented with knowledge of all the facts, and
thereby waived their right to treat the assignment as fraudulent,
was properly submitted to the jury. The state court evidently
intended to hold that, even if the assignment was originally
fraudulent as against the creditors, it was competent for the
plaintiffs in error to waive the fraud and treat the assignment as
valid for all the purposes specified in it. That view does not
involve a federal question. Whether sound or not we do not inquire.
It is broad enough in itself to support the final judgment without
reference to the federal question."
In July, 1887, William J. Eustis brought an action in the
Supreme Judicial Court of Massachusetts against Bolles and
Page 166 U. S. 492
Wilde wherein he sought to recover the balance on a note
remaining unpaid after the receipt of one-half received under
insolvency proceedings under a state act passed after the creation
of the debt. The defendants pleaded the proceedings in insolvency,
their offer of composition, its acceptance by the majority in
number and value of their creditors, their discharge, and the
acceptance by Eustis of the amount coming to him under the offer of
composition. To this answer the plaintiff demurred. The trial
court, which overruled the demurrer, made a finding of facts and
reported the case for the determination of the full court.
The Supreme Judicial Court was of opinion that Eustis, by
accepting the benefit of the composition, had waived any right that
he might otherwise have had to object to the validity of the
composition statute as impairing the obligation of a contract made
before its enactment. 146 Mass. 413.
The case was brought to this Court, where it was argued on
behalf of the plaintiff in error that a composition act was, as to
debts existing prior to its passage, void and in contravention of
the Constitution of the United States, and that a creditor, where
demand is saved from the operation of a state statute or of a state
decree by the Constitution of the United States, does not waive the
benefit of this constitutional immunity by accepting the part of
his demand which the state statute or decree says shall constitute
full satisfaction.
This Court held that the Supreme Judicial Court of
Massachusetts, in holding that when the composition was confirmed,
Eustis was put to his election whether he would avail himself of
the composition offer or would reject it and rely upon his right to
enforce his debt against his debtors notwithstanding their
discharge, did not decide a federal question, and that hence the
question as to the constitutionality of the state statute did not
arise.
Eustis v. Bolles, 150 U. S. 361.
The plaintiff in error accepted the powers and rights conferred
by the act of 1868, and joined in the proceedings for the
assessment of damages. It must therefore be deemed to have agreed
that the damages should be assessed in the manner provided for in
the act. At all events, the supreme
Page 166 U. S. 493
court of the state has so decided, and, as its judgment was not
based on any federal question, we have no jurisdiction to review
it, and the writ of error is accordingly
Dismissed.
