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Pemberton v. Lockett, 62 U.S. 257 (1859)
Pemberton v. Lockett, 62 U.S. 257 (1859)
257
21 How. 257
16 L.Ed. 137
THIS was an appeal from the Circuit Court of the United States for the
District of Columbia.
The facts are stated in the opinion of the court.
The Circuit Court decreed that $14,230, (being the one-half of the sum of
$28,460 awarded,) less five per cent., together with interest thereon from
the 20th of June, 1855, and costs, be paid by Pemberton to the
complainants. From this decree, Pemberton appealed to this court.
It was argued by Mr. Brent and Mr. Johnson, with whom was Mr. May,
for the appellant, and by Mr. Bradley for the appellees, on which side
there was also a brief filed by Mr. Bradley and Mr. Hayes.
There were many points raised by the counsel for the appeallant; but as
several of them were not touched upon in the decision of the court, it is
proper to mention only such as were. The principal points which were
included in the decision related to the facts of the case, and were as
follows:Pemberton resided in New Orleans; Berret, Johnson, and Lockett,
resided in Washington city; and the agreement was made in New Orleans.
This Creole claim was presented to the Executive Government of the
United States, and was considered by it, (See Opinion of Attorney General
Legare of July 20, 1842, 4 vol., 98,) was discussed in Congress, and
became the subject of negotiation between our Government and that of
Great Britain.
That said Johnson claimed to be counsel for others, and among them for
said Lockett, one of the defendants in error, before said board in the
'Creole case,' and forwarded a memorial in his case.
That by the 3d article of said convention all claims were to be presented
within six months from the day of the first meeting of the board.
10 Stat. at L., p. 988, art. 1; 990, art. 3.
That said Johnson did not transmit the memorial prepared by him for
Pemberton's claim until after 29th of May, 1854, and after the lapse of six
months from the opening of the board.
That so carelessly was the same prepared, that he did not even correctly
present the name of said Pemberton, nor did he forward it for forty-two
days after he swore to it, as shown by his letter of the 29th of May,
enclosing it; and this, though the memorial, as sworn to, shows on its face
that it was then out of season, and liable to be ruled out.
That neither the said Berret nor Lockett appear to have had any agency or
part whatever in representing or prosecuting the said claim.
That besides the said memorial and papers transmitted by said Johnson to
said law agent, the only part he had or took in representing the said claim
of Pemberton was a mere reference to the same by a letter to the said
board, stating that his argument, presented in said Lockett's case, 'was
applicable to the case of the Merchants' Insurance Company.'
That said Lockett's claim was a heavy one, being for the value of seventyfive slaves, and it comprised all the labor and service rendered by said
Johnson in the 'Creole case;' and that the same was submitted on said
Johnson's argument, made in that behalf alone, so far as he was
concerned, and without other act or thing done by him in behalf of
Pemberton, other than the reference aforesaid.
That the said Lockett, Berret, and Johnson, before the case was argued in
London, released and abandoned their said joint contract for their services
to said Pemberton; and the said Johnson, who alone afterwards appeared
or was known in the case, was a mere volunteer, and offered to make a
new contract for his services, to be rendered for one-half the amount
stipulated for in the said joint agreement.
That said Trinder & Eyre were present at the argument of the claim, and
aided the law agent of the United States in the case, and their
The most importan work in the prosecution of the case (viz: the
preparation of evidence) could only be done in the United States, and
particularly in the city of Washington. The evidence shows that the
appellees were employed several weeks in obtaining testimony from the
Departments in Washington. The convention provided that the claims
should be heard upon such evidence or information as shall be furnished
by or on behalf of their respective Governments. (Report of Decisions of
the Commission of Claims, p. 9.) Thus, all the memorials and proofs were
required to be presented through the Department of State at Washington.
The appointment of an agent in behalf of the United States did not
dispense with the necessity for employing associate counsel. Such counsel
were frequently associated with the agent of the United States. (Report of
Decisions of the Commission, pp. 16, 18, 29, 41, &c.)
There was no necessity for employing English counsel, as is alleged, as
the case was not before an English court, but a joint commission; and,
from the peculiarity of the case, English counsel were totally unfitted to
manage it.
Mr. Justice NELSON delivered the opinion of the court.
This is an appeal from a decree of the Circuit Court of the United States for the
District of Columbia.
The bill was filed in the court below, by the respondents, against the appellant,
Pemberton, liquidator of the Merchants' Insurance Company, in the city of New
Orleans, representing the interest of that company, which was insolvent, for the
purpose of establishing a title to certain moneys in the possession of the
Government, which had been received under the convention between the
United States and Great Britain, of the 8th of February, 1853. The money had
been awarded by the umpire, under that convention, to the company, which had
been subrogated to the rights of one of the claimants for compensation against
Great Britain, in the case of the brig Creole. The umpire allowed to the
company $28,460. The complainants below set up, in their bill, a title to onehalf of this fund, as the agents and attorneys of Pemberton in the prosecution of
the claim.
The right rests upon the following agreements, entered into between them and
the defendant (Pemberton) at New Orleans, dated the 23d of December, 1851:
The claims referred to in this agreement originated as far back as the year 1841,
in consequence of the unwarrantable interference of the public authorities at
Nassau, in the island of New Providence, one of the Bahama Islands, belonging
to Great Britain, and liberating a cargo of slaves, who were on a voyage from
Virginia to New Orleans, and who had mutinied, overcome the officers, and
carried the vessel into that port.
The persons interested in the slaves, of which they were deprived by this
interference, immediately appealed to their own Government for redress. A
correspondence was opened between this Government and Great Britain on the
subject, which continued down to the time of the convention already
mentioned, of the 8th of February, 1853.
The board sat in the city of London, and were bound, according to the terms of
the convention, to receive and peruse all written documents or statements which
might be presented to them, by or on behalf of their respective Governments, in
support of or in answer to any claim; and to hear, if required, one person on
each side, in behalf of each Government, as counsel or agent for such
Government, on each separate claim. Each Government appointed an agent to
represent it before the board; and, as we have said, the umpire allowed to the
insurance company $28,460.
By the third article of the convention, the claims were to be presented before
the board within six months from the day of its first sitting, unless a good
reason could be given for the delay. The board first met in London on the 15th
of September, 1853; and on the 15th of October it adopted rules and regulations
in respect to the proceedings before it, and, among others, required all claims to
be presented within six months from the 15th of September, the day of its first
sitting.
11
Now, the first step taken by these complainants in behalf of the claims of
Pemberton, under the convention, was a letter written to him by Lockett, dated
December 15, requesting that a power of attorney should be given to Johnson,
to act for him before the commission. This was three months after the
commencement of its sittings, and after half the period had expired within
which the claims were required to be presented. It does not appear that this
letter was answered by Pemberton.
12
The next step taken was a letter from Johnson himself, dated at Washington,
22d of March, 1854, in which he announces that he had prepared a memorial on
behalf of the claims of the insurance company, and was ready to forward it to
the commissioners, in London. This was seven days after the expiration of the
six months.
13
In the mean time, Pemberton had employed agents residing in London to attend
to his claims, and who, it appears, had the charge and management of the
business until the close of the commission.
14
What is very material, also, in this letter of Johnson of the 22d of March, he
there states, in respect to the situation of his two associates, as an inducement to
Pemberton to give him, individually, the power of attorneythat Lockett is
absent, and that Berret was unable to attend to the business, having been
appointed postmaster of the city; and then proposes to conduct the business
himself alone, for the compensation of twenty-five per centum of the money
recovered, the half only of what is now claimed under the agreement of 1851. It
does not appear that any answer was returned to this letter, doubtless for the
reason that other agents had already been employed.
15
16
It appears from the report of the proceedings under the commission, and of its
decisions, communicated to Congress by the President, 11th of August, 1856,
(Senate Docs., vol. 15, 1855-'6,) that there were six separate claimants, besides
Pemberton, for compensation arising out of the case of the Creole, and all
depending, substantially, upon the same facts. And there were, also, the cases
of the brig Enterprise and schooner Hermosa, involving principles similar to
those upon which the reclamation depended in the case of the Creole. All the
parties whose claims arise out of the case of the Creole were equally interested
in furnishing the proofs upon which the general claim against the British
Government rested; and the three vessels were interested in common, as to the
principles of international law that should govern the decision of the board of
commissioners.
17
The Government agent and commissioners took this view of these several
claims, and but one argument was made in all of them, and that in the case of
the brig Enterprise, and but one opinion delivered by the commissioners. As
they disagreed, a second argument was made before the umpire.
18
The preparation of the claim of Pemberton, beyond the proofs of the interest of
his company in the case of the Creole, was a very trifling matter; and even
these proofs had been already furnished to this Government, at the time the
appeal was made there for redress. And as it respects the questions of
international law involved in these cases, they had been the subject of repeated
discussion between this Government and Great Britain, and also in Congress,
by some of the most distinguished statesmen and jurists of the country; and the
preparation for the argument of the claim before the board of commissioners
required little else than the labor of digesting and reproducing the principles
and reasoning to be found in these discussions.
19
For the reasons above given, we are satisfied the agreement and proofs in the
case furnish no legal or just ground for a claim to the sum of money awarded
by the court below, and that the decree should be reversed, and the proceedings
remitted, with directions to enter a decree dismissing the bill.