text:
Hauselt v. Harrison/Opinion of the Court

This was an action of replevin, brought Feb. 20, 1875, by Jefferson Harrison, assignee in bankruptcy of Edward Bayer, against Charles Hauselt and Charles Korn, to recover possession of certain tanned skins, part finished and part unfinished, and bark, which, it is alleged, had been transferred by Bayer to them, in fraud of the bankrupt law. There was a judgment in his favor, to reverse which this writ of error is prosecuted.

Bayer, who, upon his own petition, filed Nov. 10, 1874, was adjudicated a bankrupt Jan. 18, 1875, owned and was possessed of a tannery at Tioga, Pa., at which he had been conducting the business of a tanner; and Hauselt was a leather-merchant in New York.

On the day of its date, they entered into an agreement in writing, as follows:--

'Articles of agreement entered into this twenty-ninth day of     May, 1874, between Edward Bayer, of Brooklyn, New York, party      of the first part, and Charles Hauselt, of New York City,      party of the second part, witnesseth:--

'In consideration of certain moneys advanced, at the rate of     seven per cent per annum, to the party of the first part, for      the purchase of veal and kip skins to be tanned, curried, and      finished by one Charles Korn, the party of the first part      hereby agrees to send all the skins so tanned, curried, and      finished by the said Charles Korn, said skins to be labelled      and stamped with a label and stamp bearing the name of said Charles Korn, the skins to be in      every way so finished as those now known in the New York      market as the 'Korn skin,' exclusive to the party of the      second part, he being sole agent for the so-called 'Korn      skin' in the United States, in consideration of a commission      of five per cent of proceeds of all sales and a further one      per cent to cover fire insurance, storage, and labor; the      said party of the second part agrees to sell all such skins      to be sent him at the best market prices, the wholesale or      case price only to be taken as an average in account sales,      small sales to be taken to own account at same price; the      party of the second part further agrees to place all proceeds      of said skins, after deduction of aforementioned commission      and advances for the purchase of veal and kip skins, at the      disposal of the party of the first part, for his own use and      benefit.

'And it is further agreed that all the skins, whether green,     in process of tanning, tanned, or tanned and finished, shall      be considered as security for the refunding, with interest,      of all the moneys advanced by the party of the second part,      and that all the skins shall be insured for their full value      in good companies only.

'Signed, sealed, and delivered on the day and year above     written.

'EDW'D BAYER.

'CHARLES HAUSELT,

By E. HAUSELT, Att'y.

'Witness:

'FREDERICK E. SHEARER.'

The business contemplated by this contract was carried on, according to its terms, until Nov. 6, 1874. During that time Hauselt had made large cash advances and had received some tanned hides, but on that date was largely in advance, in excess of receipts, and in excess of the value of the property replevied. Bayer, having become broken in health and financially embarrassed, informed Hauselt of his condition, and that, in consequence, he could proceed no further in the execution of the contract between them, and could not otherwise repay his advances. Thereupon the parties entered into the following agreement:--

'This agreement, made the sixth day of November, 1874,     between Edward Bayer, of the city of Brooklyn, State of New      York, party of the first part, and Charles Hauselt, of the      city, county, and State of New York, party of the second      part, witnesseth:-- 'That whereas an agreement was entered into by the parties      hereto on the twenty-ninth day of May, 1874, whereby the      party of the first part was, among other things, to tan,      finish, and deliver to the party of the second part veal and      kip skins purchased in the raw by moneys advanced by the      party of the second part; and whereas the party of the first      part has become ill and physically unable to complete the      tanning and finishing the skins now on hand at the tannery of      the party of the first part, and in order that said contract      or agreement may be carried out, it is hereby agreed, and the      party of the second part is hereby authorized to take      immediate possession and sole control of tannery, buildings,      and outhouses connected therewith, of the party of the first      part, in Tioga Township, Pennsylvania, and run and use the      same, together with such of the materials on hand as may be      necessary to finish and complete said skins now on hand in      said tannery, &c., and to take possession of and sell said      skins in any state as may be to the best advantage of the      parties hereto, all sales guaranteed by the parties of the      second part, the net proceeds of all said sales to be passed      to the credit of the party of the first part, after deducting      advances and expenses of finishing said skins as per the      terms of said agreement.

'In witness whereof the parties hereto have hereunto set     their hands and seals the day and year first above written.

'EDW. BAYER. [SEAL.]

'CHARLES HAUSELT. [SEAL.]

'T. H. BRORMAN, Att'y.

'Signed, sealed, and delivered in the presence of

'C. H. SEYMOUR.'

In pursuance of this arrangement, Hauselt immediately took possession of the tannery and held the property replevied at the time this action was brought.

It may be assumed that at the date of the second contract Hauselt had knowledge of Bayer's insolvency and of his intention immediately to file his petition in bankruptcy.

The court below charged the jury, in substance, as follows: That the property in the skins purchased by means of the advances under the contract of May 29, 1874, was in Bayer; that Hauselt had no right to the possession of them at any time while they were in the process of manufacture; that the only security given by the contract was the personal obligation of Bayer to consign them to Hauselt for sale, when the manufacture was complete; that the contract of Nov. 6, 1874, and the possession delivered and taken in pursuance of it, was a transfer, to which Hauselt was not entitled, and constituted a preference within the meaning of the bankrupt law; that if it was made to make and obtain payment of the whole of the debt to Hauselt, Bayer being in fact insolvent, and Hauselt having reasonable cause to believe him to be so, the transaction was fraudulent and void, and the verdict should be for the plaintiff.

These charges were duly excepted to and are now assigned for error.

Notwithstanding the differences between the contract of May 29, 1874, and that considered in Powder Company v. Burkhardt (97 U.S. 110), it must be conceded that the legal title to the skins purchased with the money advanced by Hauselt vested in Bayer. But it was not an unqualified property. We cannot agree with the Circuit Court in the construction, that the only security given to Hauselt by the contract was the personal promise of Bayer that he would perform it. To limit the contract to that extent is to deprive its last provision of all force; for, without it, the personal obligation to deliver the skins when tanned would still remain. The clause providing for security must be held to mean something; and it declares that the skins themselves, before delivery of possession to Hauselt under the contract, for purposes of sale, shall be considered as security.

It was decided in Gregory v. Morris (96 U.S. 619) that the legal effect of such a contract is to create a charge upon the property, not in the nature of a pledge, but of a mortgage. Such a lien is good between the parties, without a change of possession, even though void as against subsequent purchasers in good faith without notice, and creditors levying executions or attachments; and if followed by a delivery of possession, before the rights of third persons have intervened, it is good absolutely.

Nor can it be reasonably doubted that this equitable lien was capable of enforcement. If Bayer had, in disregard and violation of his agreement, undertaken to divert the skins, whether in a finished or unfinished state, to some other and unauthorized use, it would have been in fraud of the rights of Hauselt, and a court of equity would not have hesitated by an injunction to prevent the commission or continuance of the wrong. Bayer would, under such circumstances, be treated by a court of equity as a trustee, fraudulently dealing with and misappropriating trust property, and Hauselt would be protected in his rights, as owner of a beneficial interest in the property, entitled to the enjoyment of the specific fruits of the agreement.

'Indeed,' says Story (Eq. Jur., sect. 1231), 'there is generally no difficulty in equity in establishing a lien not only on real estate, but on personal property or on money in the hands of a third person, wherever that is a matter of agreement, at least against the party himself, and third persons who are volunteers or have notice. For it is a general principle in equity that, as against the party himself, and any claiming under him voluntarily or with notice, such an agreement raises a trust.'

If, in consequence of his bankruptcy, the property had come into the possession of his assignees, they would have taken it subject to all legal and equitable claims of others not in fraud of the rights of general creditors. They would be affected by all the equities which could be urged against him. Cook v. Tullis, 18 Wall. 332. In Yeatman v. Savings Institution (95 U.S. 764) it was held to be an established rule that, 'except in cases of attachments against the property of the bankrupt within a prescribed time preceding the commencement of proceedings in bankruptcy, and except in cases where the disposition of property by the bankrupt is declared by law to be fraudulent and void, the assignee takes the title, subject to all equities, liens, or incumbrances, whether created by operation of law or by act of the bankrupt, which existed against the property in the hands of the bankrupt. . . . He takes the property in the same 'plight and condition' that the bankrupt held it. Winsor v. McLellan, 2 Story, 492.' In Stewart v. Platt (101 U.S. 731), it was held that, although the chattel mortgages, involved in that litigation, by reason of the failure to file them in the proper place, were void as a against judgment creditors, they were valid and effective as between the parties.

Mr. Justice Harlan, delivering the opinion of the court, said:

'The assignee took the property subject to such equities, liens, or incumbrances as would have affected it had no adjudication in bankruptcy been made. . . . The latter [the assignee] representing general creditors, cannot dispute such claim, since, had there been no adjudication, it could not have been disputed by the mortgagors. The assignee can assert in behalf of the general creditors no claims to the proceeds of the sale of that property which the bankrupts themselves could not have asserted in a contest exclusively between them and their mortgagee.'

It follows that, Bayer becoming a bankrupt while in possession of the skins purchased, and in the tannery, under the contract of May 29, 1874, if his assignee in bankruptcy had taken possession of them, he would have done so, subject to the terms of that contract; and Hauselt would have had the right to require, either that he should perform the contract to its termination, so far as the skins then on hand were concerned, by finishing them, and forwarding them for sale; or that he should surrender possession to Hauselt, under some arrangement, mutually beneficial, whereby the enterprise might be wound up, under his management, such as that actually made by Bayer, on Nov. 6, 1874; or if the assignee sold the property in the condition in which he received it, that he should account to Hauselt specifically for the proceeds of the sale, and recognize him as a creditor for the remainder of his advances, not thereby refunded.

Such being the mutual rights of the parties, the transaction of Nov. 6, 1874, though made with knowledge of Bayer's insolvency, and in contemplation of his bankruptcy, if made in good faith, as it is admitted to have been, for the purpose of securing to Hauselt the benefits of the contract of May 29, 1874, was legitimate, and did not constitute, as was held by the Circuit Court, an unlawful prederence in fraud of the bankrupt law. It is quite true that Hauselt could not have compelled Bayer, by an action at law, to deliver to him possession of his tannery and its contents; nor could he have recovered possession of the skins, tanned or untanned, by force of a legal title; but it is equally true that, in equity, he could, by injunction, have prevented Bayer from making any disposition of the property, inconsistent with his obligations under the contract; and upon proof of his inability or unwillingness to complete the performance of his agreement the court would not have hesitated, in the exercise of a familiar jurisdiction, to protect the interests of Hauselt, by placing the property in the custody of a receiver for preservation, with authority, if such a course seemed expedient, in its discretion, to finish the unfinished work, and ultimately, by a sale and distribution of its proceeds, to adjust the rights of the parties.

For these reasons, we think the court below erred in its charges to the jury. The judgment will, therefore, be reversed, with instructions to grant a new trial; and it is

So ordered.


text: Talk:Hauselt v. Harrison/Opinion of the Court

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text:
Hannibal v. Fauntleroy

ERROR to the Circuit Court of the United States for the Eastern District of Missouri.

The facts are stated in the opinion of the court.

Mr. Chester H. Krum, with whom was Mr. J. M. Krum, for the plaintiff in error.

Mr. James Grant for the defendant in error.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

title: Hannibal v. Fauntleroy


text: Talk:Hannibal v. Fauntleroy

title: Talk:Hannibal v. Fauntleroy


text:
Hannibal v. Fauntleroy/Opinion of the Court

This was an action brought by Fauntleroy, the defendant in error, a citizen of Virginia, against the city of Hannibal, a municipal corporation of Missouri, to recover the amount of principal and interest alleged to be due on certain bonds and coupons. The bonds are dated April 1, 1858, for $1,000 each, and are payable twenty years after date of A. O. Nash, auditor of said city, or bearer, at the American Exchange Bank, New York, for value received, without defalcation, with interest at the rate of ten per cent per annum, payable semi-annually, on the first day of October and April in each year, upon presentation of the annexed coupons severally, until the payment of the principal sum. They purport on their face to have been issued by the city to pay calls on subscription for stock in the Pike County Railroad, Illinois. They contain no other recitals. They were issued, it is claimed, under the authority of an act of the legislature of Missouri, passed Feb. 27, 1857, to amend the charter of the city, the third section of which reads as follows:--

'SECT. 3. Said city council shall have power to subscribe for     and take stock in any railroad terminating at the city of      Hannibal or upon the bank of the Mississippi River opposite      to said city in the State of Illinois. But before such     subscription shall be valid, it shall be ratified by a      majority of the taxpayers, at a poll to be opened for that      purpose.'

The second section of the same act provides that 'said council shall also have power to borrow on the credit of the city and to pledge the revenues and public property for the payment thereof; but a greater rate of interest than ten per cent shall not be paid on any sum borrowed, unless two-thirds of the qualified voters of said city, at polls to be opened for that purpose, shall instruct the payment of a greater rate.'

It is, therefore, not denied that the bonds are binding obligations upon the municipal corporation, provided the subscription to the stock of the Pike County Railroad, in payment of which they were issued, was lawfully made; and no question is made as to the validity of this subscription, except that it was not ratified, as is claimed, by a majority of the taxpayers, in accordance with the provisions of the third section of the amended charter.

It appears that, at a called meeting of the city council of the city of Hannibal, held on Oct. 22, 1857, an ordinance was duly passed authorizing and directing the subscription of $100,000 stock in the Pike County Railroad, as follows:--

'Be it ordained by the city council of the city of Hannibal,     as follows:--

'SECT. 1. That the mayor of the city of Hannibal be, and is     hereby, authorized and directed to subscribe for and take for      the city of Hannibal, one hundred thousand dollars stock in      the Pike County Railroad, having its western terminus on the      bank of the Mississippi River, at a point in the State of      Illinois opposite the city of Hannibal, within a one-half      mile of the western terminus of Suy Carty Plank Road; said      stock to be paid for in the bonds of the city of Hannibal at      their par value, which bonds are to be made payable not      exceeding twenty years from the date of their issue, and are      to bear ten per cent interest per annum, payable      semiannually.

'SECT. 2. That the mayor be, and is hereby, directed to cause     a poll to be opened in said city of Hannibal for the purpose      of obtaining the ratification of the foregoing said      subscription of one hundred thousand dollars stock in said      Pike County Railroad by the taxpayers of said city of      Hannibal, in accordance with the provisions contained in the      third section of an act passed by the General Assembly of the      State of Missouri, entitled 'An Act to amend the charter of      the city of Hannibal,' approved February 27th, 1857.

'SECT. 3 This ordinance to take effect from and after its     passage.'

On the trial of the cause in the Circuit Court, the plaintiff, recognizing his obligation to prove affirmatively that the bonds in question had been issued under the authority of the law, introduced in evidence the poll-books of an election held at voting places in the three wards of the city, on the first Monday (the second day) of November, 1857, for the purpose of electing a mayor, marshal, recorder, and attorney for said city, three councilmen for each ward, and for the ratification of the subscription of $100,000 of stock in the Pike County Railroad. These poll-books contain the name of every voter, with a record of his vote, whether for or against ratification, and are authenticated by the certificate of the judges and clerks of the election, stating the result, and specifying in their return, under the head 'for ratifying the subscription of $100,000 stock in Pike Co. Railroad,' the number of votes cast in favor of and against the ratification. The result as shown by these poll-books, in the aggregate, was that three hundred and sixteen votes were cast in favor of, and thirty-two against, the ratification. At a called meeting of the city council of the city, on Nov. 4, 1857, it is recorded, that the clerk read to the city council the certificate of the mayor and one judge of the election from each ward in the city, whereby it was shown to the satisfaction of the council that at the municipal election held in the several wards on Monday, Nov. 2, 1857, certain persons named therein had been duly elected to the several offices therein specified, and thereupon it was resolved that certificates be made out and delivered to the officers elect, and at the conclusion of the entry upon the record there is the statement,-'for ratification, three hundred and sixteen votes; against, thirty-two votes.'

At a regular meeting of the city council on Dec. 7, 1857, it is recorded, that, 'on motion of Mr. Dowling, resolved, that the mayor be, and he is hereby, authorized and instructed to issue the bonds of the city of the Pike County Railroad, in accordance with calls on the capital stock made by order of the board of directors, and in pursuance of an ordinance approved October 22d, 1857.'

The stock subscribed for was duly issued to the city, and is still held by it; and the corporation has continuously exercised the privileges of a stockholder, though it is admitted that the stock has no pecuniary value.

It was also proven that, in various ways, prior to the institution of this suit, the city had admitted her liability upon these bonds by making arrangements for the payment of coupons as they fell due, receiving them in payment of taxes, permitting judgment to be rendered on account of unpaid coupons, once by consent and once by default; but the city objected to the whole evidence on the ground that it was insufficient to establish such liability, because it failed to show a ratification of the subscription by a vote of a majority of taxpayers at an election called and held for that purpose.

The answer to this objection, however, is found in the provisions of art. 1, sect. 10, of the charter of 1851, of the city (Laws of Missouri, 1851, p. 327), admitted to have been in force at the time, which defined the qualification of voters are follows:--

'SECT. 10. All free white male citizens, who have arrived at     the full age of twenty-one years, and who shall be entitled      to vote for State officers, and who shall have resided within      the city limits at least six months next preceding any      election, and, moreover, who shall have paid a city tax or      any city license according to ordinance, shall be eligible,      and entitled to vote at any ward or city election for      officers of the city.'

It thus appears that no person could lawfully vote at the election held Nov. 2, 1857, for city officers, except taxpayers; and assuming that the list of names contained in the pollbooks as having voted for or against the ratification of the subscription to the stock in the Pike County Railroad are those of the same persons who voted for city officers, it follows that they must all have been taxpayers, on the presumption, which certainly must be applied, that they were all legally entitled to vote.

It is argued that the legislature used the word 'taxpayers,' in the third section of the act of 1857, in a sense designedly differing from that of 'qualified voters,' in the second section, who are to decide upon the question of the rate of interest on money borrowed in excess of the ten per cent per annum. We see no evidence, however, of such an intention. On the contrary, that supposition would necessitate the conclusion that by the word 'taxpayers' the legislature meant to include persons not otherwise qualified to vote; for example, not free white male citizens, minors, women, married and unmarried, and non-residents. The reasonable interpretation is, that the question of ratifying the subscription should be submitted to the vote of the taxpayers of the city, having the qualification otherwise of lawful voters; and this included, as we have seen, all the qualified voters of the city.

To allow the present objection to prevail would require the plaintiff, not only to show that the persons voting to ratify the stock subscription were all taxpayers, but also that they had all the other requisite qualifications of persons entitled by law to vote. In our opinion, the law imposes no such unreasonable burden upon the owner of such bonds. He is bound to show, in the absence of recitals that prevent its denial, that the corporation issued them, in the exercise of a power conferred by law; and where that can arise only in consequence of the performance of a condition precedent, such as the result of an election by a public vote, he has the burden of proof to show the fact. That fact, as in the present case, is fully proven by an exhibition of the record, which shows on its face the result claimed. He is not bound to sustain the truth of the record, as if it were the case of a contested election, and prove that the majority, on the existence of which his rights rest, consisted of persons, all of whom possessed the qualification of voters. Whether each voter was lawfully such, was a question in the first place, in the present case, for the judges of the election, who were appointed under the law, for the express purpose of receiving and deciding upon their votes; and, in the second place, for the city council, to whom the official return of the election and of its result was made, as required, and who were authorized to act upon that result as certified to and verified by themselves, in the very matter of consummating the subscription, which was the subject of the vote. It would be impracticable for any purchaser of the bond, put on inquiry, as to the authority of the city council to make the issue of the bonds in question, to make inquisition into the facts of the election, beyond these returns and records; and it is but reasonable to permit him safely to rest his rights upon them, as they appear. They show the fact, that the subscription to the railroad stock was ratified by a majority of the voters, presumed to be qualified to vote, because permitted by the authorities controlling the election to do so, at an election held for the purpose, among other things, of deciding that question; and that fact constitutes the condition on which the authority to issue the bonds, by law, depends, and is the guarantee of their validity.

Judgment affirmed.


text: Talk:Hannibal v. Fauntleroy/Opinion of the Court


text:
United States v. Emholt

APPEAL from the Circuit Court of the United States for the Western District of Wisconsin.

This was an information, for the forfeiture of the right, title, and interest of Severin Schulte in certain real estate on which he carried on the business of a distiller, without having given bond as required by law, and with intent to deprive the United States of the tax on the spirits distilled by him.

In the District Court, held by Judge Bunn, Bernard Emholt and Eliza Bergener appeared and answered as claimants of the real estate under mortgages from Schulte. Upon the trial it was found by special verdict that Schulte was guilty as charged in the information, and that he held the legal title to the real estate, subject to a mortgage to each of the claimants; judgment was given that the mortgages constituted no lien or incumbrance against the United States, and that all the real estate be forfeited; and the claimants appealed to the Circuit Court.

In the Circuit Court, held by Mr. Justice Harlan and Judge Bunn, the judgment was reversed; and a certificate, signed by Mr. Justice Harlan only, was entered of record, stating that the hearing upon the special verdict found in the District Court was, by consent of parties, had before the circuit justice and the district judge, and that they were divided in their opinion on the question whether, upon the facts found in the special verdict, the United States was entitled to judgment forfeiting the property described in the information to the use of the United States, except subject to the interest and claim of the claimants, as set out in their answers. From the judgment of the Circuit Court the district attorney on behalf of the United States, claimed an appeal to this court, which was allowed.

The Solicitor-General for the United States.

Mr. George C. Hazelton and Mr. S. U. Pinney, contra.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

title: United States v. Emholt


text: Talk:United States v. Emholt

title: Talk:United States v. Emholt


text:
United States v. Emholt/Opinion of the Court

This court has no jurisdiction of the question certified. The office and object of a certificate of division of opinion are to bring to this court for determination a question of law upon which the opinions of two judges, competent to take part in the judgment of the Circuit Court, are opposed to each other. By the provisions of sect. 4 of the act of of Sept. 24, 1789, c. 20, and of sect. 5 of the act of April 29, 1802, c. 31, re-enacted in the Revised Statutes, sect. 614, upon the hearing in the Circuit Court of an appeal from a judgment of the District Court, the district judge who rendered the decision appealed from, although he may, for the information of the Circuit Court, assign his reasons for that decision, is prohibited from voting or taking part in the judgment of the Circuit Court, and that judgment is to be entered according to the opinion of the judge who is not so disqualified. The provision of sect. 2 of the act of March 2, 1867, c. 185, also incorporated in the same section of the Revised Statutes, which, in order to prevent failure or delay of justice, permits such a case, by consent of parties, to be heard and disposed of by the district judge when alone holding the Circuit Court, has no application when another judge is present. And the provisions of sect. 6 of the act of April 29, 1802, c. 31, and of sect. 1 of the act of June 1, 1872, c. 255, embodied in sects. 650, 652, 693, 697, of the Revised Statutes, do not enlarge the authority of the district judge in this respect. It necessarily follows that the case cannot be brought to this court upon a certificate of division of opinion between the judge who is qualified and the judge who is disqualified to take part in the judgment. United States v. Lancaster, 5 Wheat. 434; Nelson v. Carland, 1 How. 265.

The case cannot be treated as before this court on the appeal from the Circuit Court, without regard to the certificate of division, because it is on the common-law side of that court. If it is to be considered as a civil action, the proper mode of bringing it up is by writ of error, and not by appeal. Bevins v. Ramsey, 11 How. 185; Jones v. La Vallette, 5 Wall. 579. If, according to Clifton v. United States (4 How. 242, 250), it should be treated as in the nature of a criminal proceeding, it is hard to see how it could be brought to this court at all, except upon a certificate of division of opinion. Ex parte Gordon, 1 Black, 503.

Neither the consent of parties nor the allowance of the appeal in the court appealed from can enable this court to review the judgment of that court in any other form of proceeding than the law prescribes. Kelsey v. Forsyth, 21 How. 85; Callan v. May, 2 Black, 541.

This court having no jurisdiction of the case, the appeal must be dismissed, and the case

Remanded to the Circuit Court.


text: Talk:United States v. Emholt/Opinion of the Court


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Hitchcock v. Buchanan

ERROR to the Circuit Court of the United States for the Southern District of Illinois.

This was an action of assumpsit by Hitchcock as indorsee, against Buchanan and Waugh as drawers, of the following bill of exchange:--

'OFFICE OF BELLEVILLE NAIL MILL CO., BELLEVILLE, ILLS.,

'$5,477.13. Dec. 15th, 1875.

'Four months after date, pay to the order of John Stevens, Jr., cashier, fifty-four hundred and seventy-seven 13/100 dollars, value received, and charge same to account of Belleville Nail Mill Co.

'WM. C. BUCHANAN, Pres't.

'JAMES C. WAUGH, Sec'y.

'TO J. H. PIEPER, Treas., Belleville, Illinois.'

The declaration alleged that the defendants, on the 15th of December, 1875, 'at the office of Belleville Nail Mill Co., Belleville, Ills., made their certain bill of exchange' (describing it), and, after it had been accepted by the drawee, delivered it to the payee therein named, and he indorsed it to the plaintiff, and the bill at maturity was presented for payment, and payment refused, and the bill protested for non-payment, and the defendants, knowing that it would not be paid by the acceptor, had omitted to provide funds for its payment. A copy of the instrument above set forth, and of the acceptance and indorsement thereon, was filed with the declaration.

The defendants, after oyer craved and had, severally filed. general demurrers to the declaration, which were sustained by the Circuit Court, and judgment given for the defendants, on the ground that the instrument declared on was the bill of exchange of the Belleville Nail Mill Company, and not the bill of the defendants.

Mr. Thomas G. Allen for the plaintiff in error.

Mr. C. W. Thomas for the defendants in error.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

title: Hitchcock v. Buchanan


text: Talk:Hitchcock v. Buchanan

title: Talk:Hitchcock v. Buchanan


text:
Hitchcock v. Buchanan/Opinion of the Court

The bill of exchange declared on is manifestly the draft of the Belleville Nail Miss Company, and not of the individuals by whose hands it is subscribed. It purports to be made at the office of the company, and directs the drawee to charge the amount thereof to the account of the company, of which the signers describe themselves as president and secretary. An instrument bearing on its face all these signs of being the contract of the principal cannot be held to bind the agents personally. Sayre v. Nichols, 7 Cal. 535; Carpenter v. Farnsworth, 106 Mass. 561, and cases there cited.

The allegation in the declaration, that the defendants made 'their' bill of exchange, is inconsistent with the terms of the writing sued on and made part of the record, and is not admitted by the demurrer. Dillon v. Barnard, 21 Wall 430; Binz v. Tyler, 79 Ill. 248.

The provision of the statute of Illinois (ed. 1877, title Practice, sects. 34, 36) prohibiting defendants sued on written instruments from denying their signatures, except under plea verified by affidavit, has no application where the fact of signature is admitted by demurrer, and the only issue is one of law.

Judgment affirmed.


text: Talk:Hitchcock v. Buchanan/Opinion of the Court


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United States v. Rindskopf

ERROR to the Circuit Court of the United States for the Eastern District of Wisconsin.

This is an action against Lewis Rindskopf, the principal, and Raphael Reichmann and Elias Rindskopf, sureties, on a distiller's bond for $7,000, executed March 23, 1875. The principal was then engaged in the business of a distiller within the first collection district of Wisconsin. The condition of the bond provided, among other things, that he should 'company with all the provisions of law in relation to the duties and business of distillers.' The complaint alleges as a breach of these conditions the non-payment of the tax due on 3,640 gallons of spirits distilled by him at his distillery between the 25th of April and the 1st of May, 1875, amounting to $3,276. It also alleges that the Commissioner of Internal Revenue assessed the tax against him on the special list for October of that year; and that the assessment was returned to the collector of the district, who demanded payment of the tax, which was refused.

The answer contained a general denial, and also set up as a special defence that on the 1st of November, 1875, the Commissioner of Internal Revenue made an assessment upon the distiller to the amount of $7,117.70, for spirits alleged to have been manufactured at his distillery in the month of April, 1875, and removed therefrom without payment of the tax thereon, and with intent to defraud the government; that this assessment was returned to the collector of the district, who demanded payment of the tax; that afterwards, in May, 1876, the plaintiffs brought a suit in equity to enforce its collection; that the distiller was served with process and answered the complaint, averring that the assessment was illegal and void; that that suit was still pending; and that the assessment mentioned in the complaint here was upon the same spirits for which the above assessment of $7,117 was made.

A supplemental and amended answer repeated these allegations, and added that the equity case was heard in April, 1879, when the assessment was adjudged to be illegal, and the bill dismissed. The answer pleads the decree entered in bar of the present action.

The case was tried at the January Term of the court in 1880. There is no statement of the evidence or of its purport in the record, except as appears in the charge given to the jury. The bill of exceptions states that the plaintiffs offered evidence tending to maintain the issues on their part, 'as is generally stated in the charge of the court hereinafter contained;' and that the defendants offered evidence tending to maintain the issues on their part, 'as is in like manner stated in the charge of the court.' Then follows the charge at length, at the end of which particular parts of it are indicated to which exceptions were taken, and among others the following: 'To all that portion of said charge which defines and sets forth the legal force and effect of an assessment, and the means whereby it may be attacked and overcome; to all of that portion of said charge which touches the entirety of the assessment and affirms that the plaintiffs must recover the exact amount of the assessment or nothing.' That portion of the charge to which reference is thus made is found in different passages, which are as follows: After speaking of the power of the Commissioner of Internal Revenue to make an assessment, the court said:--

'When, therefore, an assessment has been made by this officer, it is to be presumed, until such presumption is overcome by proof to the contrary, that it was made upon sufficient evidence, and it is not necessary that the evidence upon which the commissioner acted should be laid before the jury. In other words, the jury have a right to presume until the contrary appears that when the commissioner made the assessment in question he had before him proofs which were sufficient to satisfy a just and fair-minded person that such assessment ought to be made; and before the jury can disregard the assessment they should be convinced by the evidence that the commissioner acted in making it in a manner unjust to the defendant distiller, and unwarranted by the actual facts. Such an assessment is not, however, conclusive evidence of the liability of the distiller; it is open to attack; it is prima facie proof only of such liability, and prima facie evidence is such evidence as is sufficient when unassailed to establish a given fact, and it remains sufficient for that purpose until it is rebutted and overcome. . . . Upon introduction of the assessment in evidence a prima facie case of liability on the part of the defendant Lewis Rindskopf is made. The burden of proof then falls upon the defendants, who may proceed to introduce evidence to overcome the assessment by showing that the defendant Lewis Rindskopf did not, during the period covered by the assessment, manufacture and remove from his distillery spirits upon which the tax was not paid.

'And upon it being so made to appear, the burden of proof then shifts to the plaintiffs, and it then becomes incumbent on the plaintiffs to maintain and establish the correctness of the assessment by sufficient and competent evidence. . . . The order of proof which has been maintained upon the trial is in consonance with the rules of law applicable to such a case, which have just been stated.'

And, after commenting upon the general character of the evidence in the case, the court further said:-- 'In passing upon the validity of this assessment, and indetermining the question of liability on account of it, it is to be taken and considered in its entirety: Either the government is entitled to recover the exact amount of the assessment, namely, the sum of $3,276, or it is not entitled to recover any sum whatever. The court and jury, upon an investigation of the justness and validity of the assessment, have no right to exercise the powers committed to the commissioner, but our right is limited to an inquiry into the question as to whether the assessment which has been made embraces or represents a just and valid demand against the defendant distiller, and, as the result of such investigation, it must either wholly stand or wholly fall.'

In support of the special defence, founded upon the decree in the equity case, that the assessment of November 1 was invalid, the defendants produced the record of the assessment and of the suit, which was admitted in evidence against the objection of the attorney of the government,-the court stating that proper instructions would be given to the jury in relation to the same. No proof was offered that the assessment covered the spirits for which the first assessment was made; and the court instructed the jury that without such proof the record would not be a bar to the prosecution of this action.

The jury found for the defendants, and upon their verdict judgment was entered; to review which the case is brought to this court on writ of error.

The Solicitor-General for the United States.

Mr. Jedd P. C. Cottrill and Mr. Charles E. Mayer for the defendants in error.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

title: United States v. Rindskopf


text: Talk:United States v. Rindskopf

title: Talk:United States v. Rindskopf


text:
United States v. Rindskopf/Opinion of the Court

The bill of exceptions in this case sets forth the charge of the court below in full, in disregard of our frequent condemnation of this practice. Only the parts to which the exceptions relate should have been given; all else is unnecessary, and produces only inconvenience. We repeat of this practice what we said of another practice not uncommon, and equally objectionable,-that of inserting the entire evidence in the record: 'If counsel will not heed our admonitions upon this subject, so frequently expressed by us, the judges of the courts below, to whom the bills are presented, should withhold their signatures until the bills are prepared in proper form, freed from all matter not essential to explain and point the exceptions.' Lincoln v. Laflin, 7 Wall. 132, 137.

The assessment of the Commissioner of Internal Revenue was only prima facie evidence of the amount due as taxes upon the spirits distilled between the dates mentioned. It established a prima facie case of liability against the distiller, and nothing more. If not impeached, it was sufficient to justify a recovery; but every material fact upon which his liability was asserted was open to contestation. He and his sureties were at liberty to show that no spirits, or a less quantity than that stated by the commissioner, were distilled within the period mentioned, and thus entirely, or in part, overthrow the assessment. They were also at liberty to show a payment of the tax assessed, in whole or in part, and thus discharge or reduce the distiller's liability. To the extent, however, in which the assessment was not impaired, it was evidence of the amount due. The court, therefore, erred in instructing the jury that the assessment was to be taken and considered in its entirety, and that the government was entitled to recover the exact amount assessed, or not any sum. In other respects the charge, as given above, correctly presents the law.

There may undoubtedly be cases where an assessment must stand as an entirety, or not at all; as where an erroneous rate has been adopted by the officer; or where it is impossible to separate from the property assessed the part which is exempt from the tax; or where its validity depends upon the jurisdiction of the commissioner. The present case does not fall within either of these classes. Here the question is as to the quantity of spirits produced on which taxes were not paid.

The decree in the equity suit was properly held not to be a bar to the prosecution of this action in the absence of proof that the assessment which it adjudged invalid covered the spirits upon which the assessment here was made. The instruction to the jury deprived it of any weight as evidence with them.

Judgment reversed, and cause remanded for a new trial.


text: Talk:United States v. Rindskopf/Opinion of the Court


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Marchand v. Frellsen

ERROR to the Circuit Court of the United States for the District of Louisiana.

On Dec. 31, 1863, Frellsen sold to Fairex a plantation in St. Charles Parish, in the State of Louisiana, for the consideration of $133,000, of which Fairex paid $3,000 in cash, and the residue he agreed to pay in annual instalments, bearing interest and falling due respectively on the first day of May in every year for eleven years. He executed and delivered to Frellsen his promissory notes for the principal of these deferred payments, and also notes for the interest to accrue thereon. In the authentic act by which Frellsen conveyed the property to Fairex he reserved his vendor's privilege.

On May 19, 1869, Frellsen applied to the Seventh District Court of the Parish of Orleans for an order of seizure and sale, to be directed against the plantation, to satisfy the two notes given for the instalment of the purchase-money which fell due on May 1, 1869,-one for $11,000 principal money, and the other for $5,390 interest. The writ as prayed for was issued, but its execution was suspended by an appeal taken by Fairex to the Supreme Court. The bond for the appeal was in the penalty of $26,000, and Marchand was the surety. The condition of the bond was as follows: 'Now the condition of the above obligation is such that the above-bound Daniel Fairex shall prosecute this appeal and shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate, real or personal, if he be cast in the appeal; otherwise that the said Marchand, surety, shall be liable in his place.' The Supreme Court affirmed the order of the Seventh District Court directing the writ of seizure and sale to issue, and gave judgment against Fairex for ten per cent on the amount of the two notes which were the basis of the writ of seizure and sale, on account of his frivolous appeal.

While the appeal was pending, the two notes, one for $11,000, principal, and the other for $4,620, interest, maturing May 1, 1870, became due and were not paid. Thereupon, to satisfy them, Frellsen, on May 18, 1870, obtained from the Fifth District Court for the Parish of Orleans, on his petition, an order of seizure and sale directed against the plantation. On May 26, 1870, Fairex appealed to the Supreme Court from this order, and gave bond with Marchand, as surety, for the appeal in the penalty of $23,000. It was conditioned precisely as that on the former appeal.

Fairex died Aug. 26, 1871, and the administratrix of his estate was made party to the appeal in the Supreme Court.

On Jan. 19, 1874, the Supreme Court made the following decree upon this appeal: 'The court, therefore, orders that the plaintiff and appellee recover from the defendant five hundred dollars as damages for a frivolous appeal, and that the appeal be dismissed at the costs of the appellant.'

While the appeal from the Fifth District Court was pending in the Supreme Court, that court having affirmed the order of seizure and sale made by the Seventh District Court, Frellsen, on Nov. 28, 1871, applied to the last-named court for an alias order of seizure and sale, to satisfy the two notes which matured May 1, 1869, the amount due on which was $16,390. The court directed the writ to issue, and by virtue of it the plantation was sold by the sheriff to Frellsen, the original vendor, for $40,000. This sum, by order of the court, was applied pro rata on all the notes for the purchase-money of the plantation remaining unpaid. After the notes which were the basis of the proceedings in the Fifth District Court were thus credited, there remained due thereon $8,595, and after the credit was applied to the notes which were proceeded on in the Seventh District Court, there remained due thereon $13,342.

On May 21, 1872, a rule was taken on Marchand in the Seventh District Court to hold him liable upon the bond for the appeal taken from that court. Judgment was demanded against him on the bond for the balance, $13,342, due on the notes which had been proceeded on in that court; and for $1,639, the judgment for damages for the frivolous appeal, rendered by the Supreme Court. Upon the trial of this rule the Seventh District Court entered judgment against Marchand for $1,639, the damages for the frivolous appeal, and for interest and costs, amounting to $1,900, and dismissed the rule as to the residue of Frellsen's demand. Marchand paid, Dec. 3, 1873, the sum of $1,900, which he was condemned to pay, and it was accepted by Frellsen in full satisfaction of the judgment rendered as aforesaid.

After all these proceedings, on May 8, 1876, a rule in the Fifth District Court was taken against Marchand by Frellsen, who alleged that on the demand upon which he had obtained the order for seizure and sale in that court, a balance of $8,595 was due, with interest at the rate of eight per cent per annum from Feb. 3, 1872; that the property, subject to executory judgment, had been sold pursuant to an order and judgment of the Seventh District Court; that Fairex had no other property which could be found by the sheriff to satisfy the demand; and that he was dead and his estate insolvent. Marchand was required to show cause why he should not be condemned, by reason of his suretyship on the bond for the appeal from the order of seizure and sale made by that court, to pay that balance with interest, and $500, the damages adjudged for a frivolous appeal. This suit was removed by Marchand to the Circuit Court of the United States for the District of Louisiana, where the rule was made absolute, and judgment rendered against him for $8,595, with interest theron, and also for the sum of $500, the abovementioned damages.

This writ of error is prosecuted by Marchand to review that judgment.

The cause was argued by Mr. Charles W. Hornor for the plaintiff in error, and by Mr. Philip Phillips and Mr. W. Hallett Phillips for the defendant in error.

MR. JUSTICE WOODS, after stating the case, delivered the opinion of the court.

title: Marchand v. Frellsen


text: Talk:Marchand v. Frellsen

title: Talk:Marchand v. Frellsen


text:
Marchand v. Frellsen/Opinion of the Court

The first contention of the plaintiff in error is that the court below erred in the construction which it gave to the appealbond executed by him for the appeal taken from the order of the Fifth District Court. He insists that the obligation which he thereby assumed was to pay for the use and detention of the property pending the appeal, just damages for delay, costs of suit, and costs and interest on the appeal, and that he did not bind himself to pay the debt to satisfy which the writ of seizure and sale had been ordered.

We find no warrant for this construction of the bond in the decisions of the Supreme Court of Louisiana, which interpret the articles of the code by virtue of which the bond was exacted.

Bonds for appeal from an order directing a writ of seizure and sale are given by virtue of the provisions of articles 575 and 579 of the Louisiana Code of Practice. Alley v. Hawthorn, 1 La. Ann. 122; Cottman v. Ratliff, 20 id. 179; ''State, ex rel. Bankhead, v. Judge of the Fourth District Court'', 22 id. 116.

These articles are as follows:--

'ART. 575. If the appeal has been taken within ten days, not     including Sundays, after the judgment has been notified to      the party cast in the suit, wben such notice is required by      law to be given, it shall stay execution and all other      proceedings until definitive judgment be rendered on the      appeal: Provided, the appellant gives his obligation with      good and solvent security, residing within the jurisdiction      of the court, in favor of the clerk of the court rendering      the judgment, for a sum exceeding by one-half the amount for      which the judgment was given, if the same be for a specific      sum, as security for the payment of the amount of such      judgment, in case the same is affirmed by the court to which      the appeal is taken. . ..

'ART. 579. In the appeal-bond it must be set forth in     substance that it is given as security that the appellant      shall prosecute his appeal, and that he shall satisfy whatever judgment may be rendered      against him, or that the same shall be satisfied by the      proceeds of the sale of his estate, real or personal, if he      be cast in his appeal, otherwise, that the surety shall be      liable in his place.'

It is evident from an inspection of the bond, which is the basis of this suit, that it was given under these articles.

The authentic act whereby Frellsen conveyed the plantation to Fairex, and the latter agreed that the plantation should be subject to the vendor's lien for the payment of the notes given for the purchase-money, imported a confession of judgment in favor of Frellsen by Fairex for the amount of said notes respectively as they severally fell due. When, therefore, Fairex, the mortgagor, appealed from an order of the court directing a writ of seizure and sale to satisfy such of the notes as were then due and unpaid, he suspended the execution of a judgment against him, and the surety on the appeal-bond became bound for the debt. That such is the effect of the bond for appeal in cases of this class has been repeatedly decided by the Supreme Court of Louisiana.

In Whann v. Irwin (27 La. Ann. 706), that court said: 'It is contended that the proceeding against the surety was premature, as only the property mortgaged had been sold under the writ, and no execution had been issued against the judgment debtor, and returned nulla bona. It this proposition be correct, to require a bond for an appeal from an order of seizure and sale is an idle form.

'Article 575 of the Code of Practice, and article 37 of the Revised Statutes of 1871, justify the mode of proceeding in this case. The only execution which it was possible for the judgment creditor to cause to be issued, was issued and returned not satisfied. The requirements of the law were substantially complied with. The surety knew that under the executory process no other property could be sold except that which was included in the mortgage, and when he stopped that by signing the appeal-bond, he obligated himself to pay the amount of the judgment for which the writ had issued, if affirmed on appeal.

'By reason of the nature of the judgment no execution could be taken out, after the return of the order of seizure and sale, which could reach the property of the debtor, and, therefore, the plaintiff had the right to proceed against the surety on the appeal-bond. A different interpretation of the law would make of judicial suretyship a mere farce, the commencement rather than the end of litigation.'

The rule thus laid down was reaffirmed in the case of Landry v. Victor, 30 La. Ann., Part 2, 1041.

So in Thompson v. Grow, not reported, it was held that the surety on a bond given for a suspensive appeal from an order of seizure and sale is liable for the amount of the mortgage claim sued on. See Louque's Digest, title Appeal, III. e. 4, p. 39. We have been able to find no conflicting decisions.

This interpretation of the local law and of the construction of bonds executed pursuant to its provisions is binding on this court, and leaves no ground for the contention now under consideration to stand on.

It is next insisted by the plaintiff in error that all the proceedings in the Fifth District Court, in which the bond sued on in this case was given, were absolutely void, and, therefore, that the bond was also void.

The reason for this contention is stated to be that Frellsen having begun his proceedings for seizure and sale in the Seventh District Court on the notes which matured May 1, 1869, the institution of a similar proceeding on other notes of the same series, subsequently falling due, in the Fifth District Court, was an illegal and oppressive act. It is asserted that 'all the proceedings in the Seventh District Court were regular and legal, whilst all those in the Fifth District Court were null and void on account of the error produced in the minds of the judges of the Supreme Court and the Fifth District Court by the action of Frellsen in withholding from them knowledge of the pendency of the suit in the Seventh District Court.'

It is not disputed that the subject-matter of the proceedings in the Fifth District Court was within its jurisdiction, and that the parties were before it. Its proceedings, therefore, however erroneous, cannot be null and void. In passing upon this point it is only necessary to apply the rule laid down by this court as an axiom of the law, that the validity of a judgment cannot be questioned collaterally for errors which do not affect the jurisdiction of the court which rendered it. Cooper v. Reynolds, 10 Wall. 308.

The complaint seems to be this: that in the proceeding in the Fifth District Court, Frellsen, on whose appeal-bond Marchand became surety, had a good defence against the order or judgment rendered in that case, if he had only taken the trouble to make it. But the fact that he did not make it, and that his antagonist did not make it for him, does not render the judgment void, the court having unquestioned jurisdiction to make orders for seizure and sale, ant the mortgagor being present in court to resist it.

It is further insisted that the payment by Marchand of the judgment for $1,900, rendered against him by the Seventh District Court upon the appeal-bond given for the appeal from the order of that court, is also a satisfaction of any claim on the appeal-bond signed by him in the Fifth District Court for the appeal from the order of that court allowing the writ of seizure and sale for the satisfaction of other notes of Fairex.

If, as decided by the Supreme Court of Louisiana, the appealbond in such cases is a security for the payment of the notes on which the application for the order of seizure and sale is based, it is plain that the satisfaction of a bond for an appeal on one note cannot be a satisfaction of another bond for another appeal on a different note. Each note is a separate cause of action, and the satisfaction of one does not necessarily imply the satisfaction of another.

Lastly, article 3061 of the code of 1870 is relied on for a reversal of the judgment below.

That article declares, 'The security is discharged when, by the act of the creditor, the subrogation to his rights, mortgages, and privileges can no longer be operated in favor of the surety.'

The defence founded on this article is thus set forth in the answer filed by Marchand to the rule taken on him in the Fifth District Court: 'Said plaintiff has by his acts made it impossible and placed it beyond the power of respondent to satisfy the alleged order of seizure and sale herein, or the alleged decree on appeal therefrom; that said plaintiff, without respondent's consent, has, by his said acts, impaired respondent's rights to subrogation, and respondent is thereby released from any liability, if any existed, which is denied.'

It is sufficient to say in reply to this contention, that the mortgage to which Marchand claims the right of subrogation has been enforced, and the proceeds of the mortgaged property applied pro rata to the satisfaction of the claim for which he is surety. If he had been actually subrogated to the rights of Frellsen, under the mortgage, he could have secured nothing more. He has not been injured. He has lost nothing by the foreclosure of the mortgage. It has resulted to his advantage in the reduction of the debt for which he is surety, and is no ground for his discharge from the unpaid balance.

Judgment affirmed.


text: Talk:Marchand v. Frellsen/Opinion of the Court


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Dowell v. Mitchell Mitchell

APPEALS from the Circuit Court of the United States for the Eastern District of Arkansas.

These are cross-appeals from the same decree. The original bill was filed Aug. 22, 1877, by John H. Dowell and H. M. Mandeville, late partners under the name of J. H. Dowell & Co., against Askew, as administrator of the estate of Claiborne S. Barron, deceased, Margaret Barron, his widow, his three children, and William H. Brazell. Askew resigned pending the suit, and C. E. Mitchell, the administrator de bonis non, was made a party defendant in his stead.

It appears from the evidence that the complainants were cotton-factors and commission-merchants in St. Louis, and in that capacity acted for Barron and Brazell, who, Oct. 4, 1873, formed a partnership under the name of Barron & Brazell, to continue two years. On Oct. 4, 1875, the day upon which the partnership expired by its own limitation, Barron died, the firm being then indebted to the complainants for advances in the sum of $15,989. Brazell as surviving partner was left in possession of the assets of the late firm, with which he continued business in the firm name, and on April 15, 1876, he had an accounting and settlement with the complaimants, to whom there was found to be due $8,456. Thereupon he, in the name and as surviving partner of the late firm, made to them three notes, in the ggregate amounting to that sum, and to secure them executed a mortgage on a parcel of real estate in the town of Hope, in the State of Arkansas, the legal title to which was in Barron at the time of his death. The bill was to foreclose the mortgage. The defences were: (1) That there was nothing due from the late firm of Barron & Brazell on the notes; and (2) That neither Brazell nor the firm had any title to the real estate, but that it was the individual property of Barron, and that the mortgage was, therefore, void.

Upon final hearing the Circuit Court was of opinion that the amount specified in the notes was due to the complainants from Brazell and the estate of Barron, his late partner; that the real estate described in the bill, and alleged to be the property of the late firm, had never been its property, but belonged to Barron at the time of his death; that the title thereto was in his heirs; and that Brazell, as surviving partner, 'had no right or authority to execute said mortgage on said property, and that said mortgage deed was void and of no effect.'

Thereupon the court decreed that 'so much of complainants' bill as prays a decree of foreclosure of said mortgage be denied,' and rendered a decree against the administrator of Barron's estate and Brazell for the amount due on the notes purperting to be secured by the mortgage.

The complainants and the administrator appealed from this decree.

Mr. Augustus H. Garland and Mr. W. F. Henderson for Dowell.

Mr. Solomon F. Clark and Mr. Samuel W. Williams, contra.

MR. JUSTICE WOODS, after stating the case, delivered the opinion of the court.

title: Dowell v. Mitchell Mitchell


text: Talk:Dowell v. Mitchell Mitchell

title: Talk:Dowell v. Mitchell Mitchell


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Dowell v. Mitchell Mitchell/Opinion of the Court

Without going into a discussion of the evidence on the subject, we declare our opinion to be that the Circuit Court was right in holding that the title to the property described in the mortgage executed by Brazell in the name of the late firm of Barron & Brazell had never been either in the late firm or in Brazell, but was in Barron, the deceased member of the firm, at the time of his death, and that at the date of the mortgage the title of the mortgaged premises was in his heirs.

When this fact was established by the evidence, the court below, sitting as a court of equity, had no jurisdiction to proceed in the cause. There was nothing on which it could act but the promissory notes, and to enforce their payment the complainants had a plain, adequate, and complete remedy at law.

The rule is that where a cause of action cognizable at law is entertained in equity on the ground of some equitable relief sought by the bill, which it turns out cannot, for defect of proof or other reason, be granted, the court is without jurisdiction to proceed further, and should dismiss the bill without prejudice. Russell v. Clarke, 7 Cranch, 69; Price's Patent Candle Co. v. Bauwen's Patent Candle Co., 4 Kay & J. 727; Bailey v. Taylor, 1 Russ. & M. 73; French v. Howard, 3 Bibb (Ky.), 301; Robinson v. Gilbreth, 4 id. 183; Nourse v. Gregory, 3 Litt. (Ky.) 378.

We are of opinion, therefore, that the decree of the Circuit Court should be reversed, and the cause remanded with directions to dismiss the bill without prejudice to an action at law on the notes which the invalid mortgage purported to secure; and it is

So ordered.


text: Talk:Dowell v. Mitchell Mitchell/Opinion of the Court


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Russell v. Farley

APPEAL from the Circuit Court of the United States for the District of Minnesota.

The case is fully stated in the opinion of the court.

Mr. Richard L. Ashurst and Mr. Thomas H. Hubbard for the appellant.

Mr. Henry J. Horn for the appellee.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Russell v. Farley


text: Talk:Russell v. Farley

title: Talk:Russell v. Farley


text:
Russell v. Farley/Opinion of the Court

This case comes before us by appeal from a decree in a case in equity wherein Jesse P. Farley, as receiver of certain branch lines of the St. Paul and Pacific Railroad Company, and of all lands and other property appurtenant thereto, was complainant, and the firm of De Graff & Co., the Northern Pacific Railroad Company, the Lake Superior and Mississippi Railroad Company, B. S. Russell, G. W. Cass, receiver of the Northern Pacific Railroad Company, and C. W. Mead, general manager of said company, were defendants. The complainant was appointed receiver Aug. 1, 1873, in a foreclosure suit brought of John S. Kennedy and others, trustees under a mortgage given by the St. Paul and Pacific Railroad Company to secure fifteen millions of dollars of bonds issued by a subsidiary corporation called the First Division of the St. Paul and Pacific Railroad Company, which had a contract to build the railroad, and a lease of the road for ninety-nine years. Amongst the assets supposed by the receiver to be subject to this mortgage was certain railroad iron, which had been purchased in England with the money raised by the sale of the bonds, to wit, 1,700 tons lying at Glyndon, on the line of the road, and 1,000 tons at Duluth, claimed by De Graff & Co., and 1,860 tons at Duluth, claimed by B. S. Russell,-that at Duluth being mostly held in the custom-house for unpaid duties, but some of it being about to be reshipped. The bill in this case was filed by the receiver in the State District Court for the county of Ramsey on the 21st of June, 1875, seeking to set aside the respective transfers of iron by virtue of which De Graff & Co. and Russell claimed to hold it, and for an injunction to restrain them from removing it, or taking it from the custom-house.

By a statute of Minnesota it is declared that, 'when no special provision is made by law as to security upon injunction, the court or judge allowing the writ shall require a bond on behalf of the party applying for such writ, in a sum not less than two hundred and fifty dollars, executed by him or some person for him, as principal, together with one or more sufficient sureties, to be approved by said court or judge, to the effect that the party applying for the writ will pay the party enjoined or detained such damages as he sustains by reason of the writ, if the court finally decide that the party was not entitled thereto. The damages may be ascertained by a reference or otherwise as the court shall direct.' 2 Bissell's Statutes, 806, sect. 121.

On filing the bill in this cause, the complainant (the said receiver) obtained a temporary injunction upon giving to the defendants a bond in the penalty of $10,000, with the following condition, to wit: 'Whereas the said plaintiff is about to apply to this court for a temporary injunction enjoining and restraining the defendants, and each of them, from shipping, removing, selling, hypothecating, transporting, interfering, or intermeddling with 4,560 tons of iron rails now lying at Glyndon and Duluth, Minnesota, or any part thereof: Now, therefore, if the plaintiff will pay the parties enjoined by such writ, or detained thereby, such damages as they or either or any of them may sustain by reason of the writ, if the court finally decide that the party was not entitled thereto, the above obligation shall be void, else of full force and virtue.'

De Graff & Co. having by consent rebonded 1,000 tons of the iron claimed by them, the court, on the 11th of August, 1875, required a further bond from the complainant in the sum of $79,000, the condition of which was as follows, to wit: 'Whereas an injunction has heretofore been granted in this court enjoining and restraining the said defendants, and each of them, from shipping, removing, selling, hypothecating, transferring, or interfering, or intermeddling with 4,500 tons of iron rails now lying at Glyndon and Duluth, Minnesota, or any part thereof; and whereas said injunction is still in force and effect except as to one thousand tons of said iron, claimed by said De Graff & Co., at Duluth, aforesaid; and whereas the said court has ordered, as a condition for the continuance of said injunction, that the plaintiff execute to the defendants herein a bond in the sum of seventy-nine thousand dollars, in addition to the bond for ten thousand dollars heretofore given by the plaintiff on the issuanc of the injunction: Now, therefore, if the plaintiff will pay the parties enjoined by such injunction, or detained thereby, such damages as they, or either or any of them, may sustain by reason of such injunction, if the court finally decide that the party was not entitled thereto, the above obligation shall be void, else of full force and virtue.'

The defendants severally answered the bill, and on the 1st of March, 1876, on application of the complainant, the cause was removed to the Circuit Court of the United States for the District of Minnesota. After taking a large amount of evidence, it was brought to a hearing, and on the 13th of October, 1877, a final decree was made dismissing the bill as to De Graff & Co., without costs to either party. As to the defendant Russell, who was charged with holding 1,860 tons of the iron, it appeared that he was acting as agent for William G. Morehead, who was trustee or agent for the First Division Company in procuring the iron and carrying on the work of construction, and who had sold to De Graff & Co., sub-contractors, the iron claimed by them, in part payment of moneys due them for work; and had pledged a portion of the 1,860 tons of iron (claimed by Russell) to pay Jay Cooke & Co. for advances of money, and Jay Cooke & Co. had pledged and sold it to the United States (the Navy Department) for a debt due to it. Some 1,090 tons of the 1,860 tons in question remained at Duluth unsold, and this was claimed by Edward M. Lewis, trustee in bankruptcy of Morehead; but the court held that it was subject to the mortgage, and that the receiver was entitled to it. The decree on this part of the case was as follows, to wit:--

'It is also further ordered, adjudged, and decreed that the said Farley, as receiver, as against the defendant B. S. Russell, and against the defendant Edward M. Lewis, trustee in bankruptcy of William G. Morehead and others, is entitled, for the benefit of the trust which he represents, to all the iron rails in controversy herein not sold to De Graff & Co., and not pledged and sold to the Navy Department; which said iron rails, subject to the customs duties to the United States, thus decreed to the said Farley as receiver, he is authorized to use in the construction of the said extension lines, or to sell at the best prices and on the best terms practicable, and apply the net proceeds thereof to the credit of the mortgage, dated April 1, 1871, executed by the St. Paul and Pacific Railroad Company to Horace Thompson, George L. Becker, and William G. Morehead, trustees, who in the said trust have been succeeded by the said Wetmore, Pearsal, and Denny, as trustees, and which mortgage is now being foreclosed in this court, neither party as against the other to recover costs or damages. It is further adjudged and decreed that all transfers of the 1,860 tons of iron in controversy herein claimed by defendant Russell from William G. Morehead to said Russell, except transfers relating to the iron pledged to the Navy Department, are null and void, and that said Russell has no right, title, or interest therein as against the said Farley and said trustees. It is further ordered, adjudged, and decreed that said Farley has no right, title, or interest in the iron transferred to the Navy Department, and which is claimed herein by defendants Russell and Lewis; and it is further adjudged that neither the plaintiff nor the defendant Russell is entitled to costs or damages herein.' Russell alone appealed from this decree, and appealed only from that portion of it which declared that neither party as against the other is entitled to costs or damages.

That an appeal does not lie from a decree in equity as to the costs merely, is well settled. Canter v. American & Ocean Insurance Co., 3 Pet. 307; Elastic Fabrics Company v. Smith, 100 U.S. 110. But it is contended by the appellant that the Circuit Court had no power to decree that he was not entitled to damages, thereby precluding him from recovering damages on the injunction bond; and, if it had ny power to make a decree on the subject of damages, the decree denying him damages in this case is erroneous.

Had the cause remained in the State court, there can be no doubt that that court, under the Minnesota statute which required an injunction bond to be given, could have determined the question of damages. The statute expressly declares that 'the damages may be ascertained by a reference, or otherwise, as the court shall direct.' But the Circuit Court of the United States is not governed in its practice in equity by the laws of the State in which it sits, but by the rules of practice prescribed by this court and by the Circuit Court not inconsistent therewith; and, when these are silent, by the practice of the High Court of Chancery in England prevailing when the equity rules were adopted, so far as the same may reasonably be applied. Equity Rule 90. The injunction bond taken by the State court, it is true, comes into the Circuit Court with the other proceedings in full force; but the power of the Circuit Court to deal with it depends upon the principles which govern the practice of that court, the same as if it had been originally taken by its direction.

The question then arises whether the Circuit Courts have any power to make a decree on the subject of damages arising from an injunction, where an injunction bond has been required. Where no bond or undertaking has been required, it is clear that the court has no power to award damages sustained by either party in consequence of the litigation, except by making such a decree in reference to the costs of the suit as it may deem equitable and just. Has it any such power, or any power over the subject, where such a bond has been given? For a solution of this question it will be proper to advert briefly to the history and object of this kind of obligations.

It is a settled rule of the Court of Chancery, in acting on applications for injunctions, to regard the comparative injury which would be sustained by the defendant, if an injunction were granted, and by the complainant, if it were refused. Kerr on Injunctions, 209, 210. And if the legal right is doubtful, either in point of law or of fact, the court is always reluctant to take a course which may result in material injury to either party; for the damage arising from the act of the court itself is damnum absque injuria, for which there is no redress except a decree for the costs of the suit, or, in a proper case, an action for malicious prosecution. To remedy this difficulty, the court, in the exercise of its discretion, frequently resorts to the expedient of imposing terms and conditions upon the party at whose instance it proposes to act. The power to impose such conditions is founded upon, and arises from, the discretion which the court has in such cases, to grant, or not to grant, the injunction applied for. It is a power inherent in the court, as a court of equity, and has been exercised from time immemorial. The older authorities refer to numerous instances in which it has been exercised. Chief Baron Gilbert in his Forum Romanum, p. 196 (repeated in Bacon's Abridgment, title Injunction, C), speaking of the course where an answer is put in, denying the equity of the bill, followed by a rule nisi to dissolve the injunction, says: 'The plaintiff must show cause either upon the merits, or upon filing of exceptions; if upon the merits, the court may put what terms they please upon him, as bringing in the money, or paying it to the party, subject to the order of the court, or giving judgment with a release of errors, and consenting to bring no writ of error, or to give security to abide the order on hearing, or the like.' See also Newland's Ch. Pract., 223, 224; Kerr, Injunctions, 212, 622; Story, Eq. Jur., sects. 958 b, 959 d. In Marquis of Downshire v. Lady Sandys (6 Ves. Jr. 107), A. D. 1801, Lord Eldon said if there was a real doubt on the subject in controversy, he would direct an issue, 'taking care that if in the result of such a direction the defendant shou d be prejudiced by not being permitted to cut in the mean time [trees claimed to be ornamental], the plaintiff should undertake to pay the value if the decision should be against him.' In a similar case, in 1825, the same judge made an order that the plaintiff should go before the master and give such security as would in the master's judgment secure to the defendants the value of all the trees which they should be prevented from cutting by the injunction, in case it should finally turn out in the judgment of the court that they ought not to have been enjoined in equity. Wombwell v. Belasyse, id. 110, note.

Mr. Kerr, in his treatise on Injunctions, says: 'In balancing the comparative convenience or inconvenience from granting or withholding an injunction, the court will take into consideration what means it has of putting the party who may be ultimately successful in the position he would have stood if his legal rights had not been interfered with. The court may often by imposing terms on the one party, as the condition of either granting or withholding the injunction, secure the other party from damage in the event of his proving ultimately to have the legal right. . . . The defendant may be required to do such acts, or execute such works, or otherwise deal with the same as the court shall direct; or to enter into an undertaking to refrain from doing in the mean time the acts complained of by the bill, or to abide the order the court may make as to damages or otherwise, in the event of the legal right being determined in favor of the plaintiff. . . . So, on the other hand, as a condition of granting an injunction, [the court may] require the plaintiff to enter into an undertaking as to damages in the event of the right at law being determined in favor of the defendant, and the injunction proving to have been wrongly granted.' Kerr, Injunctions, 212. Again, in another place, he says: 'In doubtful cases where damage may be occasioned to the defendant in the event of an injunction or interim restraining order proving to have been wrongly granted, the court will require the plaintiff, as a condition of its interference in his favor, to enter into an undertaking to abide by any order it may make as to damages.' Kerr, 622. In Wilkins v. Aikin (17 Ves. Jr. 422), where a bill was filed to prevent the infringement of a copyright; but it being doubtful whether the defendant did more than make allowable extracts from the plaintiff's work, Lord Eldon said: 'The proper course in this instance will be to permit this work to be sold in the mean time; the defendant undertaking to account according to the result of the action.' p. 426.

The same practice has prevailed in this county, in some cases in pursuance of statute, and in others, by the action of the court itself. As early as 1723 a law was passed in Maryland, that any person desiring to proceed in equity against a verdict or judgment rendered against him in the County Court, should be required to give security in double the amount of the debt for the due prosecution of the injunction and payment of debt and all costs and damages that should accrue in the Chancery Court, or should be occasioned by the delay, unless the Court of Chancery should decree to the contrary, and in all things obey such order and decree as the court should make. In 1793 an additional law was passed, to the effect that whenever application should be made for an injunction to stay proceedings at law, the Chancellor should have power and discretion to require the applicant to give a bond to the plaintiff at law, with condition to perform such order or decree as the Chancellor should finally pass in the cause.

Similar laws were passed in Virginia in 1787, and in New Jersey in 1799, and no doubt in other States at an early date. Their object was, where an adjudication had already been had at law, to make it compulsory on the Chancellor to require security before granting an injunction. The jealousy of the courts of law at the interference of the Court of Chance y with their judgments is a matter of historical notoriety. But these laws did not interfere with the Chancellor's discretionary power to require a bond in all other cases.

Regulations substantially similar to those above adverted to were prescribed by general rule of the Court of Chancery of New York prior to the adoption of the Revised Statutes. In 1828 they were codified, with amendments, in that revision. But the rule, as well as the statute, only related to injunctions for staying proceedings at law.

In 1830, the Chancellor of New York, for the first time, made a general rule (No. 31), that where no special provision was made by law as to security, the vice-chancellor, or master, who allowed an injunction out of court, should take from the complainant, or his agent, a bond to the party enjoined, either with or without sureties in the discretion of the officer, in such sum as might be deemed sufficient, not less than $500, conditioned to pay such party all damages he might sustain by reason of such injunction if the court should decide that the complainant was not entitled to the same; and that the damages might be ascertained by a reference or otherwise, as the court should direct. 1 Hoffman, Ch. Pr. 80; 1 Barb. Ch. Pr. 622; 2 Paige (N. Y.), 122. The object, no doubt, was to prevent hasty and oppressive injunctions from being issued by subordinate officers.

This rule, enlarged and made applicable to all courts and judges, was copied in the New York Code of Procedure of 1848, sect. 195 (now sect. 222), and has been followed in other codes and systems of practice in other States. See 2 R. S. Wisconsin, 748; also Laws of Illinois, Iowa, Colorado, &c. It was substantially adopted in the Chancery Rules of New Jersey in 1853, except that it was left to the discretion of the officer to require a bond or not. It was copied in the statutes of Minnesota, under which the bonds in the present case were taken, as may be seen by comparing it with the section of said statutes already cited.

But no act of Congress or rule of this court has ever been passed or adopted on this subject. The courts of the United States, therefore, must still be governed in the matter by the general principles and usages of equity. To these we have already adverted so far as concerns the power to require security or impose terms before granting an injunction. It remains to notice the control which a Court of Chancery may exercise in relieving from or modifying such terms during the progress or at the termination of the cause, and of enforcing and carrying out the conditions imposed or the undertakings entered into.

Since the discretion of imposing terms upon a party, as a condition of granting or withholding an injunction, is an inherent power of the court, exercised for the purpose of effecting justice between the parties, it would seem to follow that, in the absence of an imperative statute to the contrary, the court should have the power to mitigate the terms imposed, or to relieve from them altogether, whenever in the course of the proceedings it appears that it would be inequitable or oppressive to continue them. Besides, the power to impose a condition implies the power to relieve from it. If, for example, it is deemed proper, upon an application for an injunction, to require, as a condition of granting or withholding it, that a sum of money should be paid into court, or that a deed or other document should be deposited with the register, and the developments of the case are afterwards such as to make it manifestly unjust to retain the fund or document and deprive the owner of its use, the court assuredly has the power (though, undoubtedly, to be exercised with caution) to order it to be delivered out to the party. When the pledge is no longer required for the purposes of justice, the court must have the power to release it, and leave the parties to the ordinary remedies given by the law to litigants inter sese. Where the fund is security for a debt or a balance of account, or other money demand this would rarely be allowable; but in many other cases it might not unfrequently occur that injustice would result from keeping property impounded in the court. On general principles the same reason applies where, instead of a pledge of money or property, a party is required to give bond to answer the damage which the adverse party may sustain by the action of the court. In the course of the cause, or at the final hearing, it may manifestly appear that such an extraordinary security ought not to be retained as a basis of further litigation between the parties; that the suit has been fairly and honestly pursued or defended by the party who was required to enter into the undertaking, and that it would be inequitable to subject him to any other liability than that which the law imposes in ordinary cases. In such a case it would be a perversion, rather than a furtherance, of justice to deny to the court the power to supersede the stipulation imposed.

Against this view, however, the appellants have strenuously urged the case of Novello v. James (5 De G., M. & G. 876), in which an injunction against the sale of certain composition of Mendelssohn in violation of a copyright was obtained on an undertaking of the plaintiff to abide the order of the court as to damages. After a three years' litigation the case was decided against the plaintiff. The legal title having been a doubtful one, the plaintiff moved that his bill might be dismissed without costs, and the defendant moved that the plaintiff might be decreed to pay him damages sustained by reason of the injunction. The Vice-Chancellor decided that the proper damages would be the costs of the suit. Upon appeal, this order was reversed upon the ground that the defendant, under the circumstances, had a right to insist on having his damages ascertained either by reference to an officer of the court, or by a trial at law. The Lords Justices thought that it would be unjust to the defendant to disregard, or not to give effect to, the undertaking which was the price at which the plaintiff accepted the injunction; and that there was not sufficient evidence before the Vice-Chancellor to enable him to decide what the defendant's damages amounted to, or whether the costs, supposing him not otherwise entitled to them, were a just measure of the damages.

It is evident, from a careful reading of this case, that the decision was based on the merits; and that the Lords Justices were of opinion that the defendant was entitled to damages; not as a matter of course because an undertaking had been given, but as a matter of justice and equity, which the undertaking would enable him to enforce. They held, therefore, that evidence of the damages should have been taken; and that the decree of the Vice-Chancellor was erroneous, because made without any such evidence. We do not perceive that this case is at all adverse to the view which we have taken.

When the court sees no just cause for superseding or suspending the effect of an injunction bond, or undertaking, it should be enforced in pursuance of its terms; and the party for whose benefit it was given will be entitled to an assessment of damages.

But then arises the question (not essential, however, to be decided in this case), how the damages should be assessed, and on this point different opinions have been entertained. Sometimes the form of the bond itself, or the order requiring it, or the statute or rule of court under which it is given, prescribes the mode of assessment, as by a reference, or otherwise, as the court shall direct. This is the ordinary course is England, and is that prescribed in Chancellor Walworth's order, which, as before stated, is followed in several State statutes, and, amongst others, in the statute of Minnesota. In such case no question can arise as to the authority of the Court of Chancery to cause the damages to be assessed under its own direction.

But where, as in the present case, no specific provision is made either in the bond, or by any statute or rule of court, nd the condition of the bond is simply to pay such damages as the parties enjoined may sustain by reason of the injunction if the court finally decide that the party was not entitled thereto, as before stated some difference of opinion exists as to the power of the Court of Chancery to assess the damages, and whether the only proper method is not an action at law on the bond. The appellants insist that the latter is the only proper and legal course. In the case of Bein v. Heath (12 How. 168, 179), Mr. Chief Justice Taney made this remark: 'A court proceeding according to the rules of equity cannot give a judgment against the obligors in an injunction bond when it dissolves the injunction. It merely orders the dissolution, leaving the obligee to proceed at law against the sureties, if he sustains damage from the delay occasioned by the injunction.' In that case, an injunction bond had been given to stay proceedings on an executory process in the Circuit Court for the District of Louisiana, and in an action on the bond, that court had given judgment against the sureties, not merely for the damages arising from the delay caused by the injunction, but for the whole debt, interest and costs, in accordance with the law of Louisiana, where injunction bonds are binding to that extent, and where judgment is usually given against the sureties as parties to the cause, on dismissing the injunction, similar to the proceeding against stipulators in admiralty. This court held that the circuit courts sitting in equity could not take such a bond, or taken it such effect, and reversed the judgment. The remark that the bond must be prosecuted at law was a mere passing remark; it was so prosecuted in that case; but from the great experience of the Chief Justice, it undoubtedly expressed the prevailing practice with regard to ordinary injunction bonds given under the Maryland statute in cases of injunctions to stay proceedings at law. Whether the remark can be understood as having a wider scope is doubtful.

A decision on the point, however, was made by Mr. Justice Curtis, on the first circuit, in the case of Merryfield v. Jones, 2 Curtis C. C. 306. That was a patent case in which an injunction had been issued upon condition of entering into bond to pay the defendant any damages he might suffer by reason of the injunction if finally determined not to be rightful. On dismissal of the bill, motion was made to refer to a master the question of damages. Mr. Justice Curtis denied the motion, holding that the party's remedy was an action at law, but he only referred to the case of Bein v. Heath. The opinion is brief, and it does not appear that the question was very fully examined. The learned justice seemed to think that, inasmuch as the bond gave a legal action, the court sitting in equity had no jurisdiction over the question of damages.

Other cases are referred to by the counsel of the appellants to sustain their position; but upon a careful examination we are not satisfied that they furnish any good authority for disaffirming the power of the court having possession of the case, in the absence of any statute to the contrary, to have the damages assessed under its own direction. This is the ordinary course in the Court of Chancery in England, by whose practice the courts of the United States are governed, and seems to be in accordance with sound principle. The imposition of terms and conditions upon the parties before the court is an incident to its jurisdiction over the case; and having possession of the principal case, it is fitting that it should have power to dispose of the incidents arising therein, and thus do complete justice, and put an end to further litigation. We are inclined to think that the court has this power; and that it is an inherent power, which does not depend on any provision in the bond that the party shall abide by such order as the court may make as to damages (which is the usual formula in England); nor on the existence of an express law or rule of court (as adopted in some o the States) that the damages may be ascertained by reference or otherwise, as the court may direct; this being a mere appendage to the principal provision requiring a bond to be taken, and not conferring the power to take one, or to deal with it after it has been taken. But whilst the court may have (we do not now undertake to decide that it has) the power to assess the damages, yet if it has that power, it is in its discretion to exercise it, or to leave the parties to an action at law. No doubt in many cases the latter course would be the more suitable and convenient one.

In the present case, however, the court did not attempt to assess any damages which the defendants may have sustained in consequence of the injunction and proceedings in the cause, but decreed that it was not a case for damages; in other words, that the bond ought not to be prosecuted. That damages were sustained is very probable. Such a litigation as this was could hardly fail to result in damage to all the parties engaged in it. But it is generally damnum absque injuria. The question before the court, or at least that which it undertook to determine, was whether, under the circumstances of the case, any damages at all ought to be recovered. Its decision was, that none ought to be recovered; or, in effect, that the bond ought not to be prosecuted. In view of what has already been said, we think that the court had power to decide this question.

But the appellants contend that, even if the court had the power to pass upon the question at all, its decision was erroneous, and ought to be reversed on the merits. On this point, the judgment of the court approaches so near to an exercise of discretion, that we should require a very clear case to be made in order to induce us to reverse it. The conduct of the parties and the course of litigation in the court below pass so directly under the inspection of that court, as to give it many advantages which no other court can possess, for forming a correct decision on the question, whether any extra damages should be allowed for the issuance of the injunction. Nevertheless, we have looked at the case with the view of ascertaining whether injustice has been done. And at the very threshold of the inquiry we are met by the prominent fact that the injunction has never been entirely dissolved, and it has never been decided that the complaint was not entitled to it, at least for a portion of the iron claimed by the appellant. The latter strenuously defended the suit as to the whole; but it turns out, on the final hearing, that as to more than half of it his claim is unsupported, and that the injunction was properly issued. A decree was made accordingly, from which no appeal has been taken. We must presume that it was equitable and just. This fact alone would make a prima facie case for the decree in relation to damages. We have not been able to find anything in the record which leads us to think that it was erroneous or improper.

Decree affirmed.

MR. JUSTICE GRAY did not sit in this case, nor take any part in deciding it.

title: Russell v. Farley/Opinion of the Court


text: Talk:Russell v. Farley/Opinion of the Court


text:
Ex Parte Slayton

PETITION for a writ of prohibition

The facts are stated in the opinion of the court.

Mr. Alfred Russell for the petitioner.

Mr. J. H. McGowan, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Ex Parte Slayton


text: Talk:Ex Parte Slayton

title: Talk:Ex Parte Slayton