Mattingly et al. v. Boyd. surety of the garnishee, to restrain him from paying the money in his hands to his creditor, pending the attachment suit, or order it to be paid the attaching creditor, on his giving surety to refund if the suit was decided against him, it follows that the fund was in custody of the law, and that the garnishee could not be sued a second time; so that, in this case, if Bylen, or Miss Roane, had sued Boyd pending the attachment suit, he or she could have pleaded in abatement the former suit pending, to the same effect as if he had been twice sued by Bylen. This is plainly inferrible from the face of the statute; and the position is supported by adjudged cases both in England and in this country. (Brooke v. Smith, 1 Salk., 280; Embree and Collins v. Hanna, 5 John. R., 101; Irvine v. The Lumberman's Bank, 2 Watts and Sargent, 208.) The same rule was recognised by this court in the case of Wallace v. McConnell, 13 Peters, 151. Mr. Drake, in his well-considered treatise on attachment, (section 720,) has stated the practice in different States, to which book we refer. We are opinion that Boyd's holding was not adverse until the suit in Virginia was ended; and, secondly, that neither Bylen, as guardian, nor Sarah Ann Roane, after she became of age, had cause of action against Boyd for retaining the money, whilst the suit was pending, and therefore the act of limitations is no defence. The next question is, whether Boyd is bound to pay interest on the fund? As a general rule, a garnishee is not bound to pay interest, because he is liable to be called on to pay at all times. (11 Sargent and Rawle, 188; Drake Pr., 725; 1 Washington Va. R., 149.) But here the bill alleges that he used the money as his own; and the proof is, that in the latter part of November, 1826, he received the money as agent of Bylen, and immediately loaned it to George Boyd, his father, who was in failing circumstances, and shortly thereafter became insolvent. As this was an appropriation of the money, and a manifest breach of trust, David H. Boyd was bound to account with interest. The bill only claims interest from the time the attachment process was served, up to the time of David H. Boyd's death; we therefore order that interest be calculated from the 23d of October, 1827, to the 25th of August, 1851, these being the dates from and to which interest is claimed. In June, 1826, David H. Boyd forwarded an account to Bylen for the money he had expended for the latter, in prosecuting the suit, at Richmond, against Spencer Roane's executors, including one hundred dollars for his trouble in attending to the business. McMicken v. Perin. The amount claimed is $216.39. We think this charge is reasonable, and order it to be deducted from the principal sum sued for, which is $1,112.33, and leaves $896.44 due of principal, on which interest after the rate of six per cent. per annum will be calculated, from 23d day of October, 1827, up to the 25th day of August, 1851, to be levied of the goods and chattels of the estate of David H. Boyd in the hands of his administrator, John H. Boyd, the respondent, to be administered. It is further ordered, that the decree of the Circuit Court for the district of West Tennessee, dismissing the bill, be reversed, and that the cause be remanded to said court, for further proceedings to be had therein. CHARLES MCMICKEN, APPELLANT, v. FRANKLIN PERIN. Where this court affirmed a decree of a Circuit Court, which was, that a convey- THIS was an appeal from the Circuit Court of the United States for the eastern district of Louisiana. It was before this court at a preceding term, and is reported in 18th Howard, 508. When the mandate of this court went down, the money therein mentioned was tendered to McMicken, who refused to accept it; whereupon, an order was obtained to attach him for contempt, in refusing to make the conveyance required by the decree. Whilst in custody of the marshal, he executed the conveyance, and at the same time took an appeal from the order to attach. Mr. Taylor moved to dismiss the appeal, which motion was opposed by Mr. Gillet. Mr. Taylor referred to the cases of Watson v. Thomas, Littell's Select Cases, (6 Lit.,) 248; Carr v. Hoxie, 13 Pet., 462; and Lovelace v. Taylor, 6 Rob. R., 93. Mr. Justice McLEAN delivered the opinion of the court. This is an appeal from the Circuit Court for the eastern district of Louisiana. The defendant, Perin, in the year 1848, being desirous of purchasing the interests the Fletchers had in a plantation, with 20h 133 L-ed 857 22h 285 11wa674 McMicken v. Perin. the improvements thereon, situated in the parish of East Baton Rouge, in the State of Louisiana, applied to Charles McMicken, a relation of his, living in Cincinnati, Ohio, to loan him five thousand dollars for the purchase, which he agreed to do; and, in order to secure McMicken, it was agreed that he should take the title in his own name in trust, on condition that Perin should pay him the money advanced. And it appears that, under various pretences, McMicken sought to hold the plantation as his property. A bill was filed by Perin for a specific execution of the contract, by a conveyance to him on the payment of the five thousand dollars borrowed. And after various proceedings were had and testimony examined, the court decreed that Perin, within six months, shall pay McMicken the sum of $7,266.30, with interest thereon at the rate of eight per cent., from the date until paid; and, on the payment thereof, that McMicken shall convey to Perin the undivided three-fourths part of the plantation aforesaid, in the parish of East Baton Rouge. Subsequently, the time for the payment of the money was extended three months. But this order was afterwards annulled, and an appeal to the Supreme Court from the decree was granted. And afterwards, at the January term, 1857, on filing the mandate of the Supreme Court of the United States affirming the decree of the Circuit Court, and upon showing that a tender had been made of the sum of money specified in said decree, and the interest thereon, by said Perin to said McMicken, according to the terms of the decree, to wit, the sum of eight thousand seven hundred and fifty-five dollars, which sum has been deposited in this court in satisfaction of said decree by Perin, and upon filing the affidavit of Perin that McMicken refuses to convey the premises directed by said decree, the deed being herewith filed, it is therefore ordered that said defendant, Charles McMicken, do show cause, on Saturday, the 17th instant, at 10 o'clock A. M., why an attachment should not issue to enforce compliance with said decree. On the same day the mandate was entered, and prior to its entry it was proved, by the affidavit of Perin, that a tender of the above sum was made to McMicken, which he refused. In answer to the rule to show cause why an attachment should not issue against him, various reasons were assigned, all of which were overruled by the court, and an attachment was ordered to issue to compel the defendant to execute a conveyance, as directed by the decree; and, further, that the defendant should pay the costs of the rule. From this decision the defendant prayed an appeal to the Supreme Court, which Smith v. Corporation of Washington. was allowed, and on which bond was given. This is the appeal now before us, and which a motion is made to dismiss. By the appeal from the former decree, the time within which the money was required to be paid was necessarily suspended. But that decree having been affirmed by the Supreme Court, and remanded to the Circuit Court to be carried into effect, nothing further was required to be done. The tender and deposit of the money in court was all that Perin was required to do, to authorize the court to attach McMicken for a contempt, in refusing to make the conveyance. This involved no new question or decision, but was the ordinary means of enforcing the original decree. In no sense was this a final decree on which an appeal could be sustained. It is, in effect, the same as ordering an execution on a judgment at law, which had been affirmed on error, and remanded for execution to the Circuit Court. It has been held that an order of sale in execution of an original decree is not a final decree, on which an appeal will lie. (Keene v. Warren, 13 Peters, 439.) There are cases in which a second appeal may be taken, but it must be founded on a procedure subsequent to the original decree, and in a matter not concluded by it. This appeal is dismissed, at the costs of appellant. ANN C. SMITH, USE OF CALEB CUSHING, PLAINTIFF IN ERROR, v. 20h 135 L-ed 858 99 641 125 164 The power granted by Congress to the corporation of the city of Washington, "to 42f 283 open and keep in repair streets, avenues, lanes, alleys, &c., agreeably to the plan of the city," includes the power to alter the grade or change the level of the land on which the streets by the plan of the city are laid out, If, in the exercise of this power, an individual proprietor suffers inconvenience or is put to expense, the corporation are not liable in damages. THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington. It was an action on the case brought in the Circuit Court by Ann C. Smith, against the corporation of Washington, to recover damages alleged to have been suffered by the plaintiff by reason of the alteration of the grade of K street, in the city of Washington, upon which street the plaintiff's dwellinghouse and messuage were situated. Upon the trial in the court below, after much evidence had been given, the defendants' counsel asked the court to give the following instruction, which was given by the court, and plaintiff's counsel excepted. Smith v. Corporation of Washington. If, from the whole evidence aforesaid, the jury shall find that the defendants, bona fide, and to promote the public convenience, and to complete and extend the grading of the streets of said city, caused the north side of K street to be cut down, graded, and completed, and thereby caused the damage in said decla ration complained of; and that, in the execution of said work, the said corporation made their said excavation in the street, and at a distance of six or seven feet from the front line of the plaintiff's said premises, then the damages so as aforesaid alleged by the plaintiff, if the jury shall believe the same was occasioned by the acts aforesaid of the defendants, and not otherwise, is damnum absque injuria, and the plaintiff is not entitled to recover in this action, which instruction the court gave as prayed; whereupon, the plaintiff, by her counsel, excepts to said ruling of the court, and prays the court to sign and seal this, his bill of exceptions, and to cause the same to be enrolled, which is done, this 22d day of May, 1856. And on the trial of said cause, and before the same was submitted to the jury, the counsel for the said plaintiff requested the said court to give the jury the following instructions, to wit: 1. That if they find, from evidence, that the grade of K street north, in front of said plaintiff's premises mentioned in said declaration, was established and made, and said street gravelled, at or about the year 1832, and the said sidewalk graded and flagged at or about the same time, by the direction and authority of said corporation at the time of opening said street, and in pursuance of the acts of October 23, 1830, August 11, 1831, and 18th of May, 1832—that then the said corporation had no power or authority to regrade said street in a manner to occasion expense to the plaintiff, or injure the use or value of her property, without making compensation therefor, and that the defendants are liable for the damages which the said regrading occasioned plaintiff. [Refused.] 2. That if they believe that the plaintiff or her grantors was induced to build said house in consequence of the said act of October 23, 1830, and the grading of said street in front thereof under it, that then in that case the changing of said grade to her injury, without making compensation, was an act of bad faith towards her, for which the defendants are liable. [Refused.] That if they find that the said street in front of plaintiff's house was graded under and in pursuance of the act of March 3, 1851, by said defendants, that then the regrading under the act of September 12, 1851, was unauthorized, if the plaintiff sustained injury thereby, for which no compensation was made; and that then, and in that case, the defendants are liable to her for the injury which she sustained thereby. [Refused.] |