Page images

Vol. I.]

WARREN v. Ives.

(No. 8.

at the argument, that the bill was designed to be in the alternative, I shall so regard the case, and permit an amendment at once and without terms.

Touching the status of the suit brought by Mr. Ives in the state court, and sought to be removed to this by Warren and others, it is urged that inasmuch as I intimated the petition to be defective, on the argument of the motion to remand, any exercise of jurisdiction now by the court over that case would be inconsistent with such expressed views, and prima facie unauthorized. This objection assumes the bill filed by Warren to be a cross-bill and nothing more, whereas it was, as already explained, presented and allowed to be filed either as a cross-bill or as an original bill, depending upon the disposition which should ultimately be made by Judge Emmons of the motion to remand. As I shall show when the second objection is discussed, jurisdiction attaches to Mr. Warren's bill as an original bill if the suit by Ives is dismissed to the state court.

But I entertain the view that, as a cross-bill, the court would be justified in asserting jurisdiction. The question is new, for I find no authorities to govern me; but, primâ facie, the suit of Mr. Ives has been removed from the Mecosta circuit court, and is pending here. That court ordered the cause removed, and it was so far consummated that the papers were taken from that into this court, and here filed and the case docketed. The state tribunal, by an order of removal granted after a hearing, judicially declared itself without further jurisdiction, and would not now probably assert further jurisdiction. The case is one clearly within the act of Congress providing for the removal, and defendants in that suit have attempted, and, as they claim, successfully, to comply with the statute. This court has so far entertained the cause as to hear a motion to remand, after allowing the papers to be filed, and without deciding the motion, has allowed a provisional injunction to protect rights for the time being. The simple fact that the jurisdiction of this court is challenged does not raise a primâ facie case against it, nor do I quite appreciate why a previous intimation against retaining the cause, but which intimation is not a decision, should have the effect claimed of preventing the court from giving such incidental protection as the rights of the parties require, while the jurisdictional question is pending and undetermined. For the present the controversy is pending here primâ facie, and while courts are careful not to exercise a doubtful jurisdiction, they will not, while parties are before them under a claim of right, refuse to protect the interests of the parties in an emergency like the present one, from the fact that jurisdiction is questioned or even doubtful.

But, as I have already said, the bill by complainant Warren is not to be regarded merely as a cross-bill for the purposes of this motion. Whether it will stand here as a cross or as an original bill depends upon the future disposition of the motion to remand. It is claimed, however, that by the well recognized rule of comity, this court will not entertain a suit where it appears the same parties in interest are litigating the same subject matter in a state court. The proposition is fully conceded, and if we are to regard this bill as an original and not as a cross-bill, then the rule of comity insisted upon fails to defeat jurisdiction, for the reason that it appears that the question of an injunction to restrain waste is not involved in the suit by Ives against Warren and Leonard ; and although

Vol. I.)

WARREN v. Ives.

(No. 8.

the title to the land is in controversy in that suit, this court may properly entertain a suit between the same parties having for its object the prevention of waste pending the litigation in the state tribunal. Citizenship of the parties and the amount in controversy, as well as the subject matter, injunction, gives to complainant the right to invoke the jurisdiction and power of this court to protect his rights in the land ; and so far as those rights are not involved in the other suit, this court has no right to refuse what the act of Congress imposes as a duty.

It is true this bill is framed to meet an emergency, and, therefore, is not more than an injunction-bill, inasınuch as it asks no other relief than an injunction. The undetermined question on the motion to remand the Ives suit induced and justified framing the bill in this present aspect.

Should the Ives suit. be remanded, it would be competent for complainant to so amend the prayer of his bill as to render it simply an injunctionbill, and under the circumstances attending the case, the court would so administer the rules of practice as to accomplish the end and purpose of jurisdiction instead of defeating them. It is one of the distinguishing features of equity that it adapts itself to the circumstances and rights of parties, when once its jurisdiction attaches, so that if it cannot give the precise remedy asked, it will grant such as the very right of the matter demands under the general prayer for other relief. Upon the whole I am not in doubt as to jurisdiction.

Authorities were cited and discussion had touching the absolute or conditional character of the deed of July 15th, 1859, by Chauncy P. Ives to Warren and Leonard ; it is enough to dispose of that question for the present, that the showing here leaves that consequence in doubt.

6. Who owns the land ?” is the principal and vital question at issue, and when the evidence shall be before the court, it can be more intelligently determined. Thus far the showing on both sides is necessarily incomplete, and, as it is ex parte, is unsatisfactory for the purpose of passing on the absolute or conditional character of such deed." This belongs to the final hearing, and should await that stage of the cause. Meanwhile neither party ought to be suffered to remove the timber, which is the chief value of the land. So far I feel constrained to go under the showing. But Mr. Ives having been suffered to remove timber during the winter of 1873-4, and having a steam-mill to be stocked from the logs got in part from the lands in question, to enjoin him from sawing and disposing of this lumber, would work great if not irreparable injury to him. I am not disposed to do that which will break up his business, under all the facts and circumstances of the case.

Mr. Warren is not without remedy at law for the value of the timber cut, or by replevin for the logs, if he is owner. If the deed is but a mortgage, then the land and remaining timber, worth not less than one hundred and twenty thousand dollars, are ample security for his debt.

The injunction will be modified to prevent cutting the timber, and continued.

Vol. I.)


(No. 8.


[May, 1874.]




An assignment of a debt to arise for wages not yet earned, against any person by

whom the assignor may thereafter be employed, although followed by a subsequent notice of the assignment to such an employer, is insufficient, without acceptance, to make a valid transfer of the debt against the employer.

OPINION by MERCUR, J. The first assignment of error is to the answer of the court on an abstract proposition submitted by the plaintiff in error. In view of the broad and general terms in which the point was presented, we see no error in the answer. In some cases a valid assignment may be made of moneys thereafter to be made, or of grain thereafter to be grown: Grantham v. Hawley, Hobart, 132 ; or of the future earnings of a railroad ; Bittenbender v. S. f E. R. R. Co. 4 Wright, 270. If

. counsel desire an answer applicable to the evidence in the case being tried, they should so indicate it in their point submitted.

The second assignment involves the sufficiency of the transfer to give a right of action to Moffitt against Jermyn. Leslie assigned to Moffitt “five dollars a month of my earnings in the employment of the Delaware and Hudson Canal Company, or with whomsoever I may be employed, until the amount due said Moffitt is paid.” Jermyn's name is not mentioned in the assignment. It does not appear that, at the date thereof, Leslie was in his employ, or that any business relations then existed between them.

The court charged substantially, if Moffitt did, within a few months after the assignment was made, hand a copy of it to Jermyn, and Leslie continued in his employment thereafter, then Jermyn became responsible to Moffitt at the rate of five dollars a month out of wages so earned by Leslie, until the amount due from the latter to Moffitt was paid. The answer wholly excludes from the jury all question in regard to any acceptance by Jermyn, and any express or implied agreement of his, to pay. The court assumes as matter of law, that if Moffitt merely handed a copy of the assignment to Jermyn, and Leslie thereafter continued in his employ, it gave Moffitt a right of action against Jermyn. It is true, where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund, and after notice to the drawee, it binds the fund in his hands. Where, however, the assignment is of a part only of the fund the law seems to be otherwise. Thus, it was said by Mr. Justice Story, in giving the opinion of the court in Mandeville v. Welch, 5 Wheat. 277, “ When the order is drawn on a general or a particular fund for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consent to the appropriation

Vol. I.)


(No. 8.

by an acceptance of the draft; or an obligation to accept may be fairly implied from the custom of trade or the course of business between the parties, as a part of their contract.” The reasons which he gives are, that a creditor should not be permitted to split up a single cause of action into many actions, without the assent of his debtor, thereby subjecting the latter to embarrassments and responsibilities not contemplated in his original contract. It was held in Gibson v. Cook, 20 Pick. 15, that the assignment of part of a debt will not bind the debtor, either in equity or at law, nor deprive him of the right to pay the whole to the assignor, after notice that a part has been transferred to the assignee. All the decisions relating to this question of assignment are not in entire harmony. We shall not now attempt to reconcile them. We, however, are clearly of the opinion that an assignment like the present one, which professes to transfer a debt to arise for wages not yet earned, against any person by whom the assignor may thereafter be employed, although followed by a subsequent notice of the assignment to such an employer, is insufficient, without acceptance, to make a valid transfer of the debt against the employer. The second assignment of error is sustained.

Judgment reversed, and a venire facias de novo awarded.




[JUNE, 1874.]





A court has no power to restrain the treasurer of a state from paying out money in

pursuance of law upon the ground that an earlier appropriation for a specific purpose has been misapplied. The treasurer as an agent of the State is bound only to pay its debts when required to do so by law.

The facts are set forth in the opinion.
The opinion of the court was delivered by

WAITE, C. J. Article V. Section 5 of the Constitution of North Carolina is in these words :

“Until the bonds of the State shall be at par, the General Assembly shall have no power to contract any new debt or pecuniary obligation in behalf of the State, except to supply a casual deficit, or for suppressing invasion or insurrection, unless it shall in the same bill levy a special tax to pay the interest annually. And the General Assembly shall have no power to give or lend the credit of the State in aid of any person, association, or corporation, except to aid in the completion of such railroads as may be unfinished at the time of the adoption of this Constitution, or in which the State has a direct pecuniary interest, unless the subject be sub

Vol. 1.)


(No. 8.

mitted to a direct vote of the people of the State, and be approved by a majority of those who shall vote thereon.”

Article V. Section 8, is in these words :

“Every act of the General Assembly levying a tax shall state the special object to which it is to be applied, and it shall be applied to no other purpose.

The Wilmington, Charlotte, & Rutherford Railroad Company was incorporated in 1855, to construct a railroad from Wilmington to Rutherford. This railroad was unfinished at the time of the adoption of the Constitution.

By an act of the General Assembly, passed on the 29th January, 1869, the capital stock of this company was increased to seven millions of dollars, and, in order to complete the road, the public treasurer was directed to subscribe four millions of dollars to the stock. The payment of this subscription was to be made in the bonds of the State having thirty years to run, the interest, at six per cent. being payable semi-annually. To provide for the payment of the interest and the principal at its maturity, the act imposed an annual tax of one eighth of one per cent. upon all the taxable property of the State, to be levied, collected and paid into the treasury as other public taxes.

This authorized subscription was made, and bonds to the amount of $3,000,000 delivered to the president of the company in part payment.

The special tax provided for was levied in 1869, and $151,491.13 collected therefrom and paid into the state treasury. Out of this, $29,400 was paid on account of the interest accruing upon the bonds, but on the 20th of January, 1870, a resolution was adopted by the General Assembly instructing and directing the treasurer not to pay any more until authorized by the General Assembly, and he thereupon suspended the payment.

On the 8th of March, 1870, the General Assembly repealed the act making appropriations to the railroad company, and directed all the bonds then in the hands of the president to be returned to the treasurer.

On the 12th of the same month, the General Assembly, by a law duly enacted, directed the treasurer to use $150,000 of the special tax funds, in payment of the ordinary expenses of the state government, and to repay advances theretofore made by the board of education, and authorized him to replace the same out of the first moneys which might come into his hands by way of dividend of corporations or of taxes theretofore or thereafter to be levied.

By another act passed December 20, 1870, he was directed to use $200,000 more of the same funds, in payment of the ordinary expenses of the state government, and the appropriation for the charitable and penal institutions, and to replace the same from the first moneys paid into the state treasury from dividends, or taxes levied and collected for general purposes.

In accordance with these directions, the treasurer used $122,091.13 of the fund collected to pay interest on these bonds, for the purposes specified in the acts.

On the 20th of December, 1871, the treasurer was forbidden by the General Assembly to apply any money collected under the revenue act of


« PreviousContinue »