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MARSHALL V. VICKSBURG, 82 U. S. 146 (1872)

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U.S. Supreme Court

Marshall v. Vicksburg, 82 U.S. 15 Wall. 146 146 (1872)

Marshall v. Vicksburg

82 U.S. (15 Wall.) 146

Syllabus

A. filed a bill in equity to enforce a forfeiture and obtain compensation for breach of agreement. The defendant demurred by a single demurrer. The court sustained the demurrer as respected the forfeiture and

overruled it as to the residue of the bill. The complainant amended

his bill in conformity to the opinion of the court. The defendant answered. Testimony was taken, and the complainant got a decree for so much money, less, however, than he claimed. He thereupon appealed to this Court. The defendant did not appeal. Held that though the court below had erred in sustaining in part and overruling in part a demurrer which was single, yet that the complainant, by amending his bill, and the defendant, by answering afterwards, had both waived their right to object anywhere, as the defendant specially had in this Court by not appealing, and that the question of forfeiture was withdrawn from this Court. chanroblesvirtualawlibrary

Page 82 U. S. 147

2. A. leased a wharf from a city on the Mississippi before the rebellion for a certain term, the city binding itself for indemnity if his "right to collect wharfage was suspended for any period by the intervention of third parties." Held that the diminution of trade on the river caused by the rebellion did not suspend his right to collect, and that he had no claim for indemnity under his contract on account of such diminution.

3. The same lease providing

"that in case the right to collect wharfage or rents should be defeated permanently through the instrumentality or with the aid of the mayor and council of the city,"

the property should revert, held that the right was not defeated within the meaning of the clause by an ordinance which the complainant had himself caused to be passed, nor by a "tax" which the city had reserved a right to lay, as distinguished from a wharfage charge, nor by quarantine embargo laid with the complainant's consent.

Appeal from the Circuit Court for the Southern District of Mississippi on a decree given by that court on a bill filed by Charles Marshall against the City of Vicksburg. The facts of the case can be gathered from different parts of the opinion given below.





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