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money absolutely, but a stipulation for bonds thereafter to be issuea. Nor does the promise to pay, the manner in which payment is to be made, or the form of the bond, militate against this view, for all of this may well have been set out as indicating the terms and conditions of the new bond thereafter to be issued. The bonds not being negotiable, notice as to the conditions upon which they were issued attaches. And here we find, from the order of the county court of September 7th, 1870, recited in the bond, and the agreed statement of facts, that they were issued, among others, on the condition that the said road should be graded from the point of crossing the Missouri river to the town of Marshall, and that a permanent depot be established within half a mile of the town of Marshall. The presumption arising from the issuing of said bonds as to the compliance of the conditions on which they were issued is relied on as showing that they were properly issued} and this would be the case were the bonds negotiable and in the hands of innocent holders. The object in making the subsciiption and issuing the bonds was to aid in the construction of a railroad to the town of Marshall, the county seat of Saline county, and not the having some valueless work done thereon, not accomplishing the object. The building of the railroad, as shown by the agreed facts, has been abandoned, and thus the object of the subscription and the issuing of the bonds defeated. The consideration for which the bonds were issued having failed, the coupons thereof constitute no legal obligation to pay. Judgment is therefore rendered for defendant. Judgment accordingly. [N0TE3. Subsequently the validity of the coun^ bonds was put in issue in the case of Pepper v. Saline County, Case No. 10,972. This case was heard upon demurrer to answer. The bonds were held not negotiable, and therefore subject to the equities set up by defense of noncompliance with eonditons on which they were issued. The demurrer was overruled.] MERRY (BUFFUM v.). See Case No. 2,112. MERRY, The LIZZIE. See Case No. 8,423. Case K"o. 9,486. MERRYFIELD et al. v. JONES. [2 Cart 306.] i Circuit Court, D. Massachusetts. May Term, 1855. Bonds—FoK Isjdsction—Actios pob DamagesPower OF Court op Bqditt. A court of equity cannot order the complainant and his sureties on an injunction bond, to pay the damages sustained by reason of the injunction. The defendant must resort to an acidon on the bond. [Cited Jn Spencer v. Sherwin, 86 Iowa, 120, 53 [Reported by Hon. B. R. Curtis, Circuit Justice.] |
N. W. 86; City of St. Louis v. St. Louis Gaslight Co., 82 Mo. 350; Sturgis v. Knapp, 33 Vt. 522.] R. H. Dana, Jr., in behalf of [Edwin] Jones, moved the court to refer to a master, the question, how much damage Jones had suffered by reason of temporary injunction, resti-aining him from using a machine alleged to be patented; and that the complainants [William J. Merryfleld and others], and their sureties, in a bond, conditioned to pay to Jones any damages he might suffer by reason of that injunction, if finally determined not to be rightful, might be decreed to pay the same. And he showed that the bill had been dismissed, and the injunction dissolved. The motion was resisted by Mr. Brigham, for complainants. CURTIS, Circuit Justice. It is not incident to the general powei-s of a court of equity to proceed against the principals and sureties on such a bond, and enforce payment of the damages secured by its condition, by a decree. It would be a convenient, and, perhaps, a proper power, to be conferred on the courts of the United States by congress. In Hiriart v. Ballon, 9 Pet. [34 U. S.] 15G, it was held that by virtue of a rule of the state courts of Louisiana, adopted under the act of congress of May 26, 1824 (4 Stat. 62), by the circuit com't of the United States, there might be a summary judgment against the principal and sureties in an appeal bond at law. The objection that a suit on a bond is, in its nature, a suit at the common law, and so that a right to a trial by jury is conferred by the seventh amendment of the constitution, seems not to have been overlooked in that case; though how far it was considered does not appear. If not determined, it is a* grave question, Gwin v. Breedlove, 2 How. [43 U. S.] 29; Gwin v. Martin, 6 How. [47 U. S.] 7. But I do not find it necessaiy to consider it, in this case, because I am clearly of opinion, that aside from positive legislation, a court of equity does not afford a remedy on such bonds. It must be sought by an action at law. Bean v. Heath, 12 How. [53 U. S.] 168. Motion denied.
Case No. 9,487. Ex parte MERRYMAN. [Taney, 246;[1] 9 Am. Law Reg. 524; 24 Law Rep. 78; 3 West. Law Month. 461.] Circuit Court, D. Maryland. April Term, 1861. Habeas Corpus—Power to Suspend in Time of War—President—Military Authority—Suspension by Congress. 1. On the 25th May 1861, the petitioner, a citizen of Baltimore county, in the state of Maryland, was arrested by a military force, acting under orders of a major-general of the Unit- |
- ↑ [Reported by James Mason Campbell, Esq., and here reprinted by permission.]
