*1 TERM, 1890. 260 Syllabus. GRISWOLD v. HAZARD.
APPEAL THE THE FROM CIRCUIT' COURT OF UNITED STATES FOR
THE ISLAND. DISTRICT OF RHODE GRISWOLD HAZARD. TO THE COURT OF THE UNITED
ERROR CIRCUIT STATES FOR THE
DISTRICT OF RHODE ISLAND.
GRISWOLD v. HAZARD.
GRISWOLD v. HAZARD. FROM THE THE APPEALS CIRCUIT OF UNITED COURT STATES FOR
THE DISTRICT OF RHODE ISLAND. Argued 52. 50, 10,13,1891. Nos. submitted Decided April May clearly misapprehension making An admitted established in law the equity, creates a contract basis for the interference of a rest- ,court discretion, ing unquestionable on its to be exercised and fla- an.d grant cases. imputed party seeking laches is to be to a the aid of a Whether court depends upon particular equity the circumstances of the case. ’ given by it is held on In this case the evidence that the bond Griswold in proceeding proceed- the ne exeat conditioned' that the defendant in that ” perform ing should abide and the orders and decrees of the court was apprehension him executed under snch an obligations in law it, executing assumed him in delivering duty as to make it the of a equity court of to reform it so as to penal make him liable for the sum named, only principal in the event that appear fail to and become subject court; to the orders that, and decrees of .the but the defendant in died, the suit which the ne exeat having was.issued and such a decree . laches, being inappropriate, therefore being guilty Griswold of no perpetually decree should be entered enjoining prosecution action, proceeding suit or make him liable in sum on or reason of said bond.' n In the action law given the bond proceedings (No. the ne exeat 53) the-court ordering erred in pleas the amended to be stricken from ’ the files. Supreme D. sued Court of Rhode Island stockholders Mobilier accounting payment for an might Crédit what be found GRISWOLD v. HAZARD.
Statement of the Case.- accounting, moneys due on the coming securities into his hands president company the Crédit Aobilier. The receiver of that Pennsylvania liability. Supreme released him from such Court *2 interposed Island Rhode would not allow release to be aas defence. Held, error, any, respect that the if in by could not be corrected bill equity by surety in given filed a on a bond to release arrested D. when proceedings on ne exeat in that Rhode Island suit. pleading question presenting A a judgment of error in a of a state ' go jurisdiction. does not to the court first the above suits was a citi- Griswold, brought The zen New York, 'the citizens of Rhode against appellees, Island, to obtain a decree relief that char- (if cancelling, acter could not be a certain bond, for the granted) reforming sum of $53,735, executed Thomas O. Durant, principal, and Griswold and Bradford, S. D. as his sureties. It was heard and bill, answer and the bill was dis-- proofs, t^pon* missed.
The action at was law,. 53, No. brought by appellees Griswold in the above bond one of the courts of against upon Rhode Island, was removed, Cir- petition, cuit Court United States for the District of Rhode Island, was him where rendered for the sum of judgment against $66,470.
The other two Nos. were suits cases,- in'equity .51 Griswold, the action at law Circuit brought by pending Court, to obtain an its further injunction.'against prosecution.
The relief asked, each of those was suits, and the denied, bills were dismissed. All of the have their cases a suit origin equity brought, ' Court Rhode Island,
August Supreme Isaac P. of that Thomas Hazard, State, C. Durant, Oliver Ames, Bates, E. John Cornelius S. Bush- Duff, Benjamin nell, McComb, Crédit Mobilier of Dillon, S. Sidney Henry América, a the Union Pacific- Pennsylvania corporation, Railroad created acts Company, corporation Congress. Hazard sued behalf of himself and all other stockholders in the first-named should who bécome to his parties corporation bill. from an daté in 1864 until 18, 1867, early May was of the Crédit Mobilier of America, president having, TERM, 1890. of the Case.
Statement of its extent, management to a affairs great alleged, and trustees, as well its as the confidence of directors and the and of its disbursements, treasurer, finances control of its bill was that he had theory clerks and servants. the stock Crédit Mobilier amount a large acquired had been dividends paid of America money of the Union Pacific bonds Railroad and in stock and th¿ it was bonds of such exceeding, amount alleged, Company, and the amount'of such dollars, stock seven hundred thousand two millions of dol- nearly of the last-named being corporation bonds and stock, so re- moneys, and that the shares ; lars Crédit Mobilier of him, . ceived by belonged equitably America and its stockholders.
The bill Durant’s pecuniary,condition pre- alleged had been, time ; carious that he and for a was, long largely financial hazardous operations, engaged speculations *3 to sustain losses, others; and liable thereby heavy sustaining feared, could not' be him, was any recovery against (cid:127)enforced execution or that he law; ordinary process was “about to out of the State and out depart jurisdic- tion of this and that court;” defendants, individual (the defendants sued as trustees a certain contract with being Pacific Union Railroad of which Company, profits to the Crédit its Mobilier of America and stockhold- belonged so to and ers,) had “though do,” requested "wholly neglected refused to take to him to account said any steps compel stocks and moneys, bonds, so received and appro- improperly priated. relief' to asked was that Durant be principal required over and deliver to and
pay the Crédit Mobilier of America Hazard such plaintiff sums of and shares stock money (cid:127) as should an or be- due appear to be upon accounting justly to that make such and to and to longing Hazard, corporation transfer of the stock its and and would bonds as fully protect to be that the amounts ascertained rights premises; due be a lien stock of each of the shares adjudged (cid:127) said owned or in' name held or corporations,- by, standing of, Durant, as well as contract above assigned v. HAZABD.
GBISWOLD Statement of tlie Case. and the trustees, dividends,
defendant and stocks earnings, to received or be received virtue of bonds contract, of the shares to which Durant the extent be entitled might that on default in under it; and payment delivery and. stocks bonds so found all due, such moneys, stocks sold under the direction and bonds be of the court, or other- transferred wise apportioned equitably among rightful and claimants and that such thereof; stock, owners bonds, interest and so Durant, deemed moneys, rights, procured and taken as the of the Crédit Mobilier of rightful property America and its stockholders. The bill that Durant prayed be restrained from out and out State, departing writ of ne exeat, issued under its jurisdiction its order. seal and by
A writ of ne-exeat was ordered to be issued, August It was in 1868, for these words : $53,735.
“Whereas it is to our Court, represented Supreme sitting Isaac P. Hazard and others, on the part complain- equity, Durant and others, C. Thomas ants, defendants, indebted to the C. Durant said com- said Thomas greatly into other quickly go parts designs beyond plainants, behalf made in. that oath State, this (as by appears,) the said damage tends complain- great prejudice Therefore, we in order ants: prevent injustice, hereby without do, cause the said command delay, you you before to come sufficient bail you Thomas C. Durant give thousand seven or in the sum hundred fifty-three security, said Thomas dollars, that C. will he, and thirty-five into this State without beyond parts go attempt go *4 and in case the said said Thomas court; leave of our C. refuse to such bail or then are Durant shall security, give you Durant, the said to our commit him, county jail, your in safe until he do there to be shall custody kept precinct, when shall have taken his own accord such secu- ;,and you and return a to make certificate thereof are forthwith you rity under to our and to- court, hand, said plainly, your distinctly with writ.” this gether under this writ on the
Durant was arrested night August TERM, 1890.
Statement Case. and on the 24th he with 22, 1868, executed, Griswold and as his Bradford, bond, drawn one of sureties, following Hazard’s attorneys: “ men Know all Thomas O. as we, Durant, principal, and John N. A. Griswold and S. Dexter Bradford, sureties, are Hazard, bound Isaac P. Row- Hazard, firmly Rowland land G. Elizabeth Elizabeth Hazard, Hazard, trustee, Hazard, Anna P. Hazard, Vernon Hazard, Alary Lydia Torrey, Sophia and Horner in Anna 'the sum of thousand seven fifty-three and hundred to be said dollars, their thirty-five paid obligees, executors, administrators or to which we assigns; payment bind our several ourselves, heirs, executors and respective administrators, jointly severally, hereby. day August, Sealed with our seals and dated this 24th a.d. condition of
“The is that said Thomas C. obligation shall on his Durant abide and the orders and part perform decrees of the Court of the State of- Island in Supreme Rhode of Isaac P. Hazard the suit-in and others said equity and others, C- Thomas Durant now in said court pending for the within This is the county bond Newport.” referred to. above the latter date,
Under before the presumbly execution Hazard and bond, Durant .attorneys signed “ In the above-entitled case it is following agreement: agreed that shid Thomas C. shall file a bond, surety marked the writ of ne exeat therein, to penalty abide the orders and decrees of the court in said perform cause, writ and that of ne exeat aforesaid thereupon shall be dis- and that the court ehter -decree may charged, accordingly.” under the date, The “ same entered the order: following Thomas C. one of the defendants in this suit, having filed a bond, executed and with sureties, to abide and perform and decrees of orders the court made in this suit, now, it is consent, ordered that the writ of ne exeat heretofore issued For reason, some the writ of discharged.” explained, was not ne exeat returned to the clerk’s and filed until office October 1868. The sheriff made on the this return
GRISWOLD HAZARD. 265 Statement Case.
writ: 24-, 1868. I caused the “Newport, August within- named Thomas C. Durant to come personally before me, as within on the 22d commanded, of this day and month, now ' writ is order of court.” discharged by
On the 2d December, 1882, more than fourteen years after the commencement of Hazard’s it was suit, ordered, and decreed in that adjudged suit, other as things, among follows: “ Second. That Thomas C. is ac defendant, countable for and do,' within-90 from the date hereof, days the sum of $16,071,659.97, with from pay interest this date, the said with sum, interest to be thereon, deposited this court, or, be in the first instance, to registry-of paid, Rowland Hazard,, South State, said and Kingston, Henry Martin, in the State New who are Tork, Brooklyn, with hereby commissioners, appointed special authority, jointly and to collect and and receive with same, severally power to take such as be to collect the same and steps necessary may or so much thereof as be law, said fund, may according be directed to- otherwise, collected or paid hereby process court the credit this of this deposited registry cause. sum of $16,071,659.97, Third. the aforesaid Of total allowed is decreed Durant,'is defendant, Thomas C. hereby $8,816,232.93, part be entitled to and discharge pay stock of the and delivering thereof tanto, transferring fro and sink- first Union mortgage Pacific Railroad Company ‘ now G,’ statement per bonds said ing-fund company cause,- filed exhibited to be directed court and or received with all been collected have dividends may decree, of this date said after the defendant or his assigns date of the -same to the payment with interest together stock, said defendant, thereof the certificates said delivered, thereof, transfers said bonds and the who are said Martin, hereby Rowland Hazard and Henry same, and who to receive commissioners appointed special or such same, are to sell the directed hereby authorized..and time fo Aelivered them-from to. portions thereof ..as..-may ' ' OCTOBER, - TERM, (cid:127) (cid:127) Statement, of the Case. secured, auction, time as are receive public *6 the costs and after- thereof) and, deducting charges proceeds of this court to- in the of such the same sales, deposit registry n the however, said Provided, credit this That cause: Thomas C.. defendant, herein to the said. privilege granted said stocks and- bonds .to and Durant,’ transfer deliver herein before decreed sum and partial discharge payment him from within to be hini exercised thirty days be by paid by of' and that default decree; date of the this entering of' and the transfer delivery such transfer and or of delivery, within said bonds .the amount' of said stock-and entire( Thomas C. .defendant, thirty days, obligation or of the- tp said sum of 'the Durant, pay proportion said stocks, of such residue of the amount after same,- deducting their face- aforesaid, and bonds as be as delivered, may absolute:-. become, be, shall is value, declared hereby .and or- And That the said nevertheless, option .provided further, said interfere in Thomas C: Durant shall not privilege-of .the (cid:127) order in the manner with or decree cause any touching- any stock, transfer, sale or other of said delivery, disposition bonds. and (cid:127) C. is defendant, likewise- .Thomas “.Fourth. and directed to transfer deliver, ordered within thirty and from the date hereof hundred five thousand seven and days shares the stock the Crédit (5707-j^) seven. Mobilier- ^¡- has been (which stock found master to- America by been with .have the funds purchased Mobilier, of the Crédit (cid:127) which stock and with any dividends or to- br accrued profits accrue the same, is. declared to be- the hereby property -said- subject in this corporation, and decrees ordérs interest, any cause), dividends, and profits- rights, benefits have accruéd.to may said as the Thomas.Ó. (cid:127)'holder of pi the said shares stock or thereof any part -5707-^ hereinbefore him, said transfer and charged against be delivery made to the' said Hazard and Rowland. Henry-' them, Martin either of commissioners,with power, or. special -which to* said-commissioners, forthwith hereby granted take, suits, siich or measures,. suit or in their- own names
GRISWOLD v. HAZARD.
Statement of the Case. otherwise, as bemay advised is lawful and necessary stocks, transfer, enforce such collection and said delivery, to be held said commissioners subject further order- of the court in this cause. “ Fifth. All interlocutory heretofore injunctions made in . so far cause, as consistent with' this are decree, declared to be and are made hereby perpetual, further consid- eration cause, as to particularly allowances to the for costs, complainants expenses services, and as to the distribution of the funds that be iii the may deposited registry of the court to the credit of the cause, also the considera- tion of order or decree which may necessary premises against defendant, Thomas C. Durant, reason default which be made him may touching any por- *7 tion and decree, also the consideration of other and any defendants, further decree' herein or concerning other said than the Durant, Thomas C. and be, they hereby directed to stand are, leave to over, any interest, party - save who parties'in contempt to be for- parties may appear to at other cause time for further disqualified, apply orders and directions.” No. 50
The bill case was filed 13, 1881. September these That the bond of grounds: That suit upon proceeds Griswold became 1868, bound, as one 2ij whereby August that the latter should Durant, on his of the sureties of part orders and decrees the Supreme abide and perform in the suit in Rhode Island of the equity Court State said Thomas C. Durant 'others against Isaac P. Hazard at/ court,” in said was obtained others, and now pending [thoit] him of facts he entitled from was concealment fraud and by assumed the he obliga- him before to to have-communicated he intended to that sign, instrument; tions that imposed a bond simply believed, that he time, at the signed, should be so that he bound him for the appearance court and orders amenable to the process personally bond execution of'the Hazard; that the the suit brought mistake; that the agreement the result'of was in question of a writ of bond,'the the execution by whereby, upon ' 1890. TERM, of the Case. Statement made his knowl- was without was to be tie exeat discharged, of court also the order pursuance' as was or consent, edge his ; rights and 'was in derogation such agreement,' .of to for Durant’s appearance only become surety his purpose time was well known answer process (cid:127) who super- and' attorneys, prepared, his- the-.plaintiff .to writ of that the ne exeat and' bond; the- of, execution vised the Durant was about depart out was ground sued- he State'when, fact, contemplated coming from the State. bond- that he of. the was effect that the
Protesting legal of Durant so as be should Responsibleonly appearance b¿ suit, of the court Hazard process subject he -bond,' to execute exeat proper- averring willingness -as the bond in be set aside question'' having prayed mistake,.or reformed, fraud, obtained been imposition indicated, and that defendants restrained as' by injunc- from in its tion enforcing present shape. the defendants in issue the
The answers of material alle- put of the bill. The filed a gations plaintiff replication, proofs and the cause the bill as taken, heard, stated, .being already . dismissed. 26 Fed. Rep. action at case law, commenced, No. being in one 1883,- courts of March Rhode and was Island, Griswold’s removed, Circuit Court of application, United States’.. The declaration set out the bond- of Bradford, one sureties August H-868r^alleged *8 thereon, was dead, Durant had not its condition kept and'that in that .he' had not the above decree of Decem- performed suit ber the 2,1882, Hazard; equity brought by whereby . Rowland Hazard, Hazard, Rowland G. Anna Hazard, plaintiffs to have were‘entitled demand of him Torrey Lydia $53,735. amount of said- bond, that decree was copy ‡. an in-the made declaration. The defendant / exhibit Griswold ten each of which -filed was in bar of the action. One pleas, a of the suit Hazard’s pleas.made copy proceedings of it. -a Demurrers were filed to the replications part second, those to the fifth third, and seventh fourth, pleas, GRISWOLD v. HAZARD. 269'
Statement of'the Case. demurrers. an being order pleas special By entered 1, July 1884, the demurrers were sustained to the second, third, fourth, fifth and seventh of the pleas, court opinion delivered being Mr. Justice 21 Fed. 178. Gray. Rep. to a
Pursuant of counsel, stipulation dated November 26, 1883, demur plaintiff might specially second, third; fifth and fourth, seventh in case de- pleas, and, murrers were overruled, to those if reply as no demurrers pleas been, filed, had and that amended if be' pleas, desired, might the defendant, filed and in obedience to the order of court the amended to be filed on or before requiring pleas October 15, 1884, the on 14th defendant, October, filed 1884, third, amended fifth fourth, and seventh The case was pleas. on heard a motion made subsequently by plaintiff, November 19, 1884, the amended be stricken and on out, pleas “ of March, 30th was made: 1885, this order Plaintiff’s motion from'the files is Oertain strike amended granted.” pleas others, between counsel, were made among one stipulations able to under the to the effect that the were prove plaintiffs Island, decree of Rhode of the Court Supreme equity suit amount of excess Hazard, an damage brought by on suit.” A hav- sum in this of the bond declared jury penal' as of court been waived judgment, ing writing, gave $66,470. 1887, 12, Griswold, February against June The suit in No. -brought equity to the suit case, The bill in that after referring equity that, the 17th Hazard in showed Isaac P. brought commenced suit in G. Hazard November, Rowland Crédit' one the courts of equity Pennsylvania, - Mobilier which was others,- America subsequently re for the States East moved tó the Circuit Court of United ern 'the domicil District' of Pennsylvania, being Oliver Ames was in such suit corporation; appointed receiver of -and effects all the chattels, rights goods, in Pennsylvania and was authorized' corporation, csipses all actions, .deed of release from .deliver dues, debts, action, suits, bills, bonds',- obligatory^ \vritings duties, exe-' -of accounts, sums' reckonings,' mogey^jiidg'ments, *9 TERM, 1890.
27CT of the Case. Statement controversies, cutions, extents, trespasses, quarrels, damages demands, or which the both law whatever, equity, at had, then or time any Mobilier of America Credit might said demand, or claim, thereafter have, allege against or what of cause matter, for or reason-or means thing October, 1881, of 27th that, afterwards, day ever; and in consideration of under the said Ames, authority, the title a to cer Durant of deed execution by conveying of court lands mentioned order tain authorizing kind to of of the release, the latter deed release, delivered due or to, of then above of all sums indicated, money owing that (cid:127)or become to, thereafter due said corporation; was, Island above Rhode suit the Supreme Court equity been, G. Hazard; and had controlled Rowland wholly Durant, the deed delivery notwithstanding the.above Court was and the with, latter Supreme proceeded suit it him to set a decree to allow Rhode Island rendered refusing on the such'decree, as a bar to the entering ground up -of one its of that violation he was court for contempt n decreesrendered after the of the therein; delivery the defend of release to Durant the deed plaintiff requested abstain 21, 1868, ants to surrender the bond August with that him but thereon, from refused suing comply The relief an asked was restraining’ injunction request. action law. defendants further from proceeding n Upon a demurrer before Colt and hearing Judges Carpenter the bill sustained, dismissed, and the bill October of the court. 1886, Judge. Carpenter delivering opinion 28 Fed. 597. Rep. It
The bill case No. 52 filed assailed June Isladd over Court Rhode jurisdiction Supreme Hazard matter of the suit brought subject equity neither plaintiff, before ground bringing (cid:127) therein, Isaac Hazard, P. nor other stockholder Crédit Mobilier of committee America, managing requested of the board of that or stockholders corpora- directors tion to Durant. begin legal proceedings equitable n Colt cause was heard demurrer before Judges HAZARD.
GRISWOLD v.
Mr. Carter for Griswold. The demurrer was sustained and bill Carpenter. dismissed, Circuit Court delivered opinion being by Judge 28 Fed. 578. Carpenter. Rep. .
Mr. James C. Carter f<3rGriswold 50 and Nos. 53, argued and submitted 51 and 52. Nos.
In No. 50 the of errors relied was as specification follows:
—First. That the court below erred in the dis- Overlooking feature of the case that the tinguishing .obligation sought be cáncelled or reformed was one of and was suretyship, entered into under circumstances .calculated to create well the minds of as its- misapprehension real obligors character; n Second.—That the court below erred by acting .up.on the, view that in order to entitle it was complainant relief show both to- the necessary .'instrument under- parties stood that it was to be bond for the' appearance only Durant in the and that it was suit, to show equity enough char-, that the Griswold, it. to be of that supposed complainant, acter, and took it, that the well obligees knowing having reason to know that such was the good belief under which the Griswold was complainant acting. even,
Third. —That the' court below, the view that the case was one of an the ordinary attempt to impeach a written mistake, instrument ground without reference to the of the character of the points obligation that of and of the being circumstances suretyship, peculiar under which it erred procured, by deciding, against -of weight mistake was not evidence, sufficiently proved. were cited cases Mr. Carter this case: following
Barber
21 How.
Barber,
582;
v.
v.
Samuel
Meriv.
Howarth, 3
272,
10
278;
Mathews,
Railton v.
Cl. &
Russell
935;
Fin.
v.
96;
5
Asley,
Smith,
Ves.
v.
6
489;
Brayton
McNamar
Paige,
7
S. C. 32 Am.
v. Dwyer,
239;
627;
Dec.
Mitchell v.
Paige,
605;
Bunch, 2
S. C.
First. plea. second original to the murrer — in the court below erred That sustaining Second. third plea. original demurrer — in out third the court erred plea That striking Third. amended. as — erred the demurrer That the sustaining Fourth. fourth plea. original ,in — court erred out fourth That the' striking iFifth. amended. as plea the court erred in demurrer to —That sustaining
Sixth. plea. fifth original — That the' court out the fifth erred striking Seventh. amended. plea — court not at the That the below erred granting Eighth. on error for motion plaintiff judgment trial n ' plea. eighth — the court below erred That granting 'Minth. on his error motion plaintiff for judgment trial ninth plea. 10 & 935 Williams Mathews, ; Railton v. Cl. Fin. cited*:
He
1 H. L.
Brandt on
219;
L. R.
Suretyship,
v. Bayley,
§§
Sureties,
Jones,
B.
293;
Lee v.
C.
17
366; Baylies
p.
v. HAZARD.
273
GRISWOLD
for Hazard.
Citations
36
Pid
Maine, 179;
Bank v.
(N.
482; Franklin
S.)
Cooper,
v.Co.
v.
3 B. &
The Cumberland Coal
co ck
C. 605;
Bishop,
v.
Barb. 159, 171;
Steam
30
Co.,
Coal
Howell
Hoffman
v.
In No. 50
v. Mutual
cited:
Society,
Wallingford
Cas.
13 R.
685;
Petitioner,
125;
I.
Hazard
Griswold,
App.
v.
9 R.
v.
1
I.
Dick
602, 606, Potter, J.;
Swinton,
371;
& Bea.
v.
Stewart
19 Ves.
Hearn
Graham,
312;
v.
Ves.
Co.,
Insurance
In No. 53 cited: v. they Slack 15 McLagan, Illinois, 24 2; California, Builders' Ins. 39 Capuro Co., 123; v. Murphy v. Byrd, 221; Cole Joliet 79 Hemp. Co., Illinois, Opera 96; Ser v. vice v. 2 Johns. Hale v. W. Heermance, 96; Va. Oil &c. Co., 11 W. 229, Va. 235; Albee, Jones v. Illinois, 34; 70 v. Sterling Mercantile Co., 32 Penn. St. Ins. S. C. Am. 75; 72 Dec. 773; Darnell Indiana, v. 30 Rowland, 342; J'Anson v. 1 Stuart, T. R. 748; Arkansas, 5 Hynson Dunn, 395; v. Hopkins v. Woodward, Illinois, 62, 65; 75 Abraham 14 Gray, Arkansas, v. 301; 9; 2 Hawkins v. Case, Thoroughgood's Rep. Hawkins, 50 California, 558; 577; v. 29 Place, Indiana, Rogers Seeright. v. Fletcher, 6 Blackford, Co. 380; v. Insurance 66 Hodgkins, Maine, Miller v. 1 109; 267; S. C. Elliott, Indiana, 50 Am.
VOL. cxlx —18 ' TERM, 1890. 274
Opinion of the Court. Dec, 5 v. v. 475; Bennett, Hill, 303; Starr Clem & Newcastle Indiana, 9 S. 68 Railroad, 488; Danville C. Am. Dec. 653; & 8 M. Blackburn's DeG. G. v. Case, 176; Rashdall Ford, v. 2 15 750; L. R. McDonald Zeh- Maine, 225; Eq. Trafton, Indiana, 16 v. 290; Moss, ner v. 5 Riddle, Kepler, Cranch, 351, v. 11 R. 195; Hazard I. v. 357; 2 Harvey Taylor, v. 10 Wall. Wall. v. 328; 308; Cornett Cooper Reynolds, Williams, 20 Wall. v. 226; Hill, 95; 7 Haz- Jesup Paige, v. 9 R. I. v. 5 602, 606; ard Durant, Norton, Selden, People 513; Bassett v. 129 v. 176; Mass. Huscombe Stand- Crafts, v. 187; Gibbs, Cro. Jac. Mantell Brownl. & Gold. ing, 64; v. 16 v. Illinois, 358; Gould, Robinson Plummer People, 11 v. 6 Wisconsin, Cush. v. 55; 42; McClintick Fay Oatley, 3 v. Cummins, 15 McLean, 158; Lockwood, Johns. Thompson v. 130 Shattuck, 252; Fisher Pick. Bowman v. 256; Heller, 17 51; Mass. v. 131 Mass. v. Harris 153; Carmody, Griffith v. How. Jenness, 612; St. Peck 7 161; 90 Penn. Sitgreaves, 2 Atwood 471; v. Green, McCrary, Merry- Hutchinson v. Nat. Y. Bk., v. First 37 N. 5 464; Tracy L. R. weather, Eq. v. United States 322; How. Clark, 17 Buford, Booth v. 523; Bradstreet, ; 7 Pet. 647 634, Chirac Ex 12, 31, 32; 3 parte Pet. 302. 280, 11 Wheat. Reinicker, v. 616, v. 13 Bailey, : Co. Wall. cited Insurance No. 51 they
In
Lee
183;
24 How.
v. Lancashire
v. Forsyth,
Balance
621;
6
Cadwell, Allen, 503;
Fuller
527;
6 Ch. Ap.
&c.
v.
Railway,
v.
119;
Cohen,
130 Mass.
McElmoyle
Valentine,
v.
Anthony
Cranch, 481;
7
United
v. Duryea,
Mills
326;
13 Pet.
States
v.
66; White
110 U.
61, 65,
98 U. S.
Throckmorton,
Crow,
v.
308,
10 Wall.
189;
v.
Cor
316, 317;
Cooper Reynolds,
S.
308, 316,
Willoe,
20 Wall.
Bateman v.
Williams,
317;
nett v.
4
Imrie,
v.
L. R.
206;
& Lef. 201,
1
Castrique
Sch.
Q.
L. R.
In No. v. 95; 10 Wall. 7 316; Hill, Reynolds, Jesup Paige, Cooper I. R. Petitioner, Griswold, de- Harlan, after the above statement,, Justice making
Mr. *13 livered opinion HAZARD!
GRISWOLD v.
Opinion of the Court. four facts, These oases are so connected in their closely w-ell as in the determination, law for questions presented convenient to that one dispose by opinion. them will Our attention be first directed to case No. 50, decree is to cancel, a or in the to reform alternative, sought the bond of Durant as executed August princi- and Griswold and and to restrain sureties, Bradford as pal, the defendants from it in its form. The suing present of such a of course, decree refusing granting depends,, whether the Griswold evidence has, inquiry plaintiff and clear sufficiently manifested his right convincing, relief asked. ' inWhile to some is a matters there conflict respect among certain and witnesses, facts circumstances are estab- clearly lished, and summarized as follows: may Durant, August, was a citizen and resident York. He went to New for a brief on was there Newport stay, morning 22. Abdut noon of that the suit, in Saturday, August day which the writ of ne exeat was commenced him. issued, He was then with several friends, his sailing, yacht seas. The landed at the wharf high yacht' shortly Newport before eleven o’clock at he his ashore night: Upon stepping was notified two had officers, who continuous watch kept for him at had a the wharf afternoon, during — writ his arrest of ne exeat —and writ meaning ab^ve he must He them to jail. place, accompanied go one of on foot Mr. Hazard, Peckham, counsel following to’the been sheriff’s of the arrest office. Information having New York, communicated Mr. W. also a citizen of H. Gray, went to Griswold, temporarily Newport, gentleman who was his uncle, latter go jail begged had become bail for Durant’s Griswold appearance. him until met
slight never acquaintance having relations or business 1868, and held no spring personal was Durant’s kind with who him. To oblige nephew, to. friend, courtesy as an of kindness merely act. acceded to (Griswold then resided stranger Newport), in court,- to become baií for Durant’s appearance request *14 QCTOBEE TEEM, : Opinion of the Court. for that went to the Hazard only jail. learned, purpose that had been o’clock, little before arrested as eleven his that to the from lateness of he landed yacht, owing (cid:127) had taken him to the the sheriff instead the hour directly jail “ as had been He office, his own arranged.” previously of one of his to the Mr. attorneys, went immediately lodgings “to and see what could be and caused done go Bradley, him. ” over au- Durant from remaining jail Sunday; to prevent name “for the his his use purpose attorney thorizing from until said Durant Monday, being regarded, jail releasing time, in the short then re- whether Durant doubtful as very be able to before would necessary Sunday provide maining bonds,’’ n reaehed the Griswold, by Gray, after accompanied Shortly and Peck- Hazard, namely, counsel Bradley two jail, later a few moments Governor Yan there, arrived ham, from to á obedience conveyed xhessage came .in Zandt did it seems, counsel. to act as his Bradford, Hazard,, pot It was now twelve nearly counsel to jail. his accompany were there who All were jail agree o’clock. the', of Durant under a writ árrést because commanding only from the sum of him, take bail $58,735, the sheriff n into State attempt go parts beyond he would go if such court, and, leave of the bail were not without given, him in to and until him bail of his commit keep jail gave such and, accord; security own officer was being taken, the writ to return a certificate thereof to the court. required that, is no claim one There present ignorant or of writ, extent of the of. terms the offi.7 authority further, its execution. It all the oer charged agreed by there was a conversation at the between witnesses jail and Durant as what could be done order .to lawyers the latter’s effect release. But in this discussion or conversa- Griswold much is tion took no whatever. That distinctly part who stated one Hazard’s drew Beckham, attorneys al- the execution of the writ of ne exeat, bond,,and supervised that the sureties could not if he says “help hearing, though It is attention.” equally beyond dispute they paid m GRISWOLD v. HAZARD. Opinion of the Court. of Griswold’s at the well object presence known jail
to Hazard’s attorneys. here arises the
Just difference as .to witnesses among took at the what what occurred accord- place jail. Detailing to his recollection at that Peckham : When I ing says place, I found there who had got jail Judge Bradley, me there a minute or Mr. preceded two, Durant, Charles (cid:127)C. Yan Zandt, Mr. counsel, Dexter Griswold, Bradford, who I and a was, Mr. Mr. Yan Zandt stranger, presume, Gray. *15 and were about the release of Judge Bradley, already talking ‘ from Mr. Durant is a said: That' custody. Bradley Judge matter. Let him the bond called for the writ.? simple give The nature of that bond was Mr. Durant briefly explained. that said was out of the for him to that he it; .it question give couldn’t remain in Rhode that his Island; any longer presence demanded and forthwith outside absolutely State, ;' .and that he must leave It was here Monday morning. sug- that he file his answer and for the' dis- gested might apply ‘ of the writ said, but he I know what charge immediately; in court here at all.’ It and I can’t remain are, proceedings was then that he should bond same proposed give cases, two condi- amount marked the two writs decrees abide whatever tioned to court perform might in those suits. -The nature these him make pro- against, Mr; discussed bonds freely* Judge Bradley, posed Yah and the fact that were bonds and Mr. Zandt, they (cid:127) liable to and*” which would sureties pay hold principal decree madé in case Durant should perform any money Zandt Mr. Yan Mr. the court was commented on by aijd did ill the Bradley Durant. all this Judge During interview. Zandt Yan Mr. for Mr.' abd talking complainants, The witness side.” about for their same spoke equally Mr. with Durant,. (cid:127)states: “Mr. Zandt conferred Yan having — I mean with the sureties those two conferred having — an- Yán Zandt then Mr. Griswold and Bradford Mr. it was As nounced that the bonds would proposed. give at' all should then it that late, was further very meet agreed mid-’,' after office on soon my Monday morning, following TERM, 1890. Opinion of the Court. was; Besides these bonds, and execute papers. night, counsel should an also that'the sign respective agree- agreed executed the bonds writs ne exeat being ment at the Just close of the discharged. absolutely should addressed himself to all Bradley present, interview Judge make sure that all understood the that he wished saying he stated that Mr. Durant was to alike, and give arrangement and Mr. Bradford as sureties, Mr. Griswold bonds, decrees, all the abide writs, marked perform sums that counsel should in the suit; of the court sign agreements, all should meet at of- writs; my discharge for fice soon after Monday morning sign papers midnight Durant would free from in the meantime Mr. go custody and he to the sureties, of honor, his word appealed say- opon he, .that' attends.’ see ‘"We gentlemen, rely upon you, ing: I and had them then papers We prepared separated. met, when we table pursuant arrange- my lying upon took an ¡ Mr. Griswold active were' read. ment. part, They n read the think, I himself.. and, papers- at meeting without discussion at were objection signed papers were not office we more time. together my Probably tó the interview at the minutes.” than ten jail,. Referring *16 best his rec- said, was testified nothing Bradley the one, idea that the. belief,, any ollection conveying thq to obtain from .defendant a bail were complainants “ and that the terms of the bond for his bond appéarance; to the idea that it so as exclude was merely were-expressed, that it and to should be a bond a bail for provide appearance, the order the court.” He further said to abide that, perform “ and it was so an- the bond was to be a security,” accord, in material his evidence was nounced. In all respects of Peckham. the recollection with our was other evidence But there precludes accepting affair 'those version of the Gray,. given by gentlemen. with or less distinct- Zandt, Durant and Yan more Griswold, state that neither at the Satur- but all ness, jail emphatically, before nor at the day meeting -daylight Monday night, or in hint, was there a any suggestion proposition, (cid:127)morning, HAZARD. GRISWOLD u Opinion of the Court. with bond, sñould conditioned sureties, Durant
form, give that' be abide decrees that he would might perform in the Hazard or bond was talked of suit, rendered make the sureties would one responsible simply except so as to be to the- State, for his appearance subject court. Gov. Zandt testifies,, orders and Yan process at the “It was jail:. touching meeting proposed by Judge that Dr. Durant should bond, with two sureties,. give Bradley Which should be substituted for- writ and the writ with- I then drawn. understood from the conversation that bond the nature of a and that bond, was bail when the delivered Dr. Durant into the sureties to- custody either its orders decrees or to suffer personally, perform such as the court penalties personally might impose, .they would conditions the bond. comply Nothing said inconsistent with my , these presence any person took views.” what Again, referring place time bondwas the same witness bond, “A actually signed, says: me, Messrs. Peckham and was handed 'prepared Bradley, as counsel for Mr. Durant; -there some little'discussion ' whether should made the sheriff of Newport toor in the then Brad- County, complainants Judge suit:. and it was-so I told Mr. latter, done. ley preferred it -wasa that, to secure his my opinion, proper‘.bond appear- ance in the the -bond was then suit, and executed.....I Peckham, heard said or Mr. Bradley nothing by Judge except what I have stated. I told Mr. Durant that, already myself was, the instrument a bail effect, bond.”’ my opinion, said,or Further: Thére was intimated by nothing person- that, on that occasion indicate my presence hearing bond was instead of The statements security surety.” Zandt Gov. Yan are sustained fully depositions Griswold and Durant. Gray,
In view of this the- evidence great preponderance side of the as to what occurred at the before plaintiff, jail *17 of meet for separation parties Monday morning business, the consummation of the the court is not at liberty of account the defendants’ attorneys gi-ven accept TERM, 1890.
Opinion of the Court. And we have a con- of Saturday night. strong interview Griswold, of Durant and Gray, that the viction recollection is sustained all the in- interview, to that as Zandt, Yan case. And in this, we saying herent probabilities. understood as not be integrity would reflecting in the The difference recollection of attorneys. Hazard’s in which took to transactions part, respect gentlemen, that of them reason without suspect any any often happens, n would deviate from the line of absolute truth. intentionally court can differences guided by existing, Such are evidence, where the witnesses intelligent, weight to know what credibility, opportunities had-equal equal it is at all that In the ..first place, probable occurred. have executed the bond would question, surety,- Griswold believed, that it bound him informed, been ab- if he had bond, amount such within the specified solutely, an' sum Durant —almost any adjudged payment the next cannot to him.' In we place, entire suppose stranger who went the interests that the counsel jail, represent there had other see Hazard, purpose going except-to which the writ .of was, substantially, accomplished bail would authorized, ne exeat namely, obtaining from the State without the leave . Durant’s departure prevent him, times, have at all and thus Hazard’s of the court, pending decree to its respect suit, power rightful subject for, That was evidently Bradley’s rendered. purpose, to.be that Durant evidence, to Peckham’s suggested according the bond could effect executing specified release a bond was the nature of such But when explained, writ. for Durant’s out of the necessity being appeared that course rendered Monday entirely imprac- State — then informed to the evi- Was ticable, according latter tthe.' — file an thát he -could answer-and dence of Peckham apply What was meant for the of'the immediately. discharge wyit 'have' % It meant one but thing,^ suggestion could . obtain, Durant to that it was in without namely, the'power after answer- if not of the .writ, discharge objection, right, Á a bond of some kind. arrested by executing party ing, *18 v. HAZARD. 281 GRISWOLD Opinion of the Court. the writ, obtain the upon ne exeat may discharge
upon notice, and after and to some motion or according petition, “ to order it is a matter course the ne exeat to authorities,- the defendant’s to answer be upon giving security discharged, to and render himself to bill, amenable the the complainant’s the and court to such of the pending litigation, process process a to as be final decree.. performance issued compel may , . where the defendant cannot such Or, . procure security or if the he to sheriff, as will leave the State satisfy wishes. the suit, termination of. to the court before the may apply 'ne to exeat his to upon giving proper security discharge be And amenable to such process; upon applica answer will as it deem the court take such tion, sufficient, security may from' and will the sheriff 2 Barb. Pr. liability.” discharge v. 655-6; Bunch, 606, 621; Smith, Mitchell v. Brayton 2 Paige, v. 489, 239, 6 McNamara 7 244. 491; Dwyer, Paige, Paige, exeat Law Dict. ne Johnson See, Title, Jacob’s also, regno; In' Griswold, 5 G. & 481. Clendenin, v. J. Petitioner, 20, 1880, 13 determined Griswold, I. September R. to from bond in be discharged petition, sought question n himself within the jurisdiction placing his'principal’s He court and- its orders decrees. seems have subject that he in that case, entitled, upon ground proceeded, <jf But to the order of asked.' discharge Supreme right, Island did not view, Court of Rhode accept observing “ a bond to that'rt abide .the could perform regard to a bond to abide the decree as event of merely equivalé&fc. the suit.” do would so, said, To wholly ignore the^court . ” “ its bond, which, word upon perform contained of thé to be face, by agreement parties. While appeared given , court said, was there may properly, require exeat, condition a writ ne that the of. respq discharge — udént decree Robertson security give to'perform citing 3 C. 218 Wilkie, Leonard, Amb. and Atkinson v. Bro. C. —'it was conceded that courts will discharge generally writ of abide ne exeat th'e respondents’ upon giving security on the If had re decree of the suit.” hearing mained in his had Newport and, answer, applied .filing ' TERM,
Opinion Court. of.the writ ne exeat bond his discharge'of giving decree, abide security place simply himself* it is in- when within the required, jurisdiction state court under the conceivable circum- would, have denied But it was further said stances, application. — in its that case and this is quite significant bearing upon *19 “— to be another adverted even if presently question to be no other the bond was considered as having question than a bond to abide effect the decree made the. upon hearing cause, the could not be the petition granted present stage n the No final decree in the cause has proceedings. yet, been reached.” Durant could
As, therefore, answer,.and, have filed his con- to the rule, have obtained a the formably general discharge writ bond, that he would be amena- upon giving surety, the orders and ble to the as he could court; not, process with his remain in Rhode Island consistently engagements, long have an answer and to move for the dis- enough prepared, of the sufficient writ, bond to him charge upon given; Hazard and and as his counsel a desire that Durant expressed held in should not be over what custody more Sunday, natural than that the should, equitable parties consent, bring about that which Durant must have understood from Bradley that he could the accomplish, orders through court, have, a bond executed with namely, his surety compelling in the State when presence the orders of .required by his court, sureties to subjecting if he did personal liability render himself amenable to its If the process. sugges- tion that Durant could file his answer and to the court apply for the of the writ discharge bond (of course, upon securing of the amenability process had been court) adopted, would not have obtained a bond plaintiff making surety within absolutely responsible, sum named in penal the writ and bond, for a decree is, Durant. It money therefore, unreasonable to that the suppose parties separated under an Saturday night that Hazard should have agreement larger from Durant a bond that would his sureties to a subject than was involved responsibility that. made suggestion v. HAZARD. GRISWOLD Opinion of Court. an order of court for the could obtain
Durant discharge it is more reasonable to writ. On the contrary, .suppose on to be executed the bond which, Saturday agreed night, next was one would Monday morning, accomplish, what Hazard’s parties, precisely attorney by agreement that Durant an order of court. might accomplish by suggested of the made to take the was thus parties place agreement Hazard’s attor- court, of an because Durant assured order that he could not remain neys long enough Newport make a formal of the writ discharge application bond. proper
We are the condition of that, opinion although bond in should “abide perform question was n ” orders, court in the suit which it and decrees of the all the to the decided preponder- given, parties, according evidence, as an intended at the instrument it, time, ance of so the sureties for principal appearance binding and decrees be amenable to the process were to be liable and not which, before, default in law, more than means, If the bond the penalty. pay *20 — it does the case counsel this court and agree that established:, as to the mutual mistake, is one of a clearly legal no mistake as to There effect of the instrument. it was drawn one Hazard’s the bond for ; by mere words of Griswold before it. But, was read and signing attorneys, there was a evidence, to the great weight according the terms em- as to the mistake, on both sides, import legal to, In mutual short, to effect agreement. ployed give intention and whibh instrument does not .the thought express And this mis- of its execution. had at the time parties it render take was attended circumstances inequitable of it. The in- take for the in the bond to advantage obligees and of Hazard’s attorneys, strument was drawn one pre- embodying agreement presented accepted and took law, was unskilled reached. Griswold viously in the sense of the word as implying performance “perform” of the court. He Durant’s amenable becoming process — Van Durant, had no reason unless the recollection Gray, TERM, 1890. 284 Opinion Court. — Zandt at fault to and himself as is to what occurred wholly, doubt that the bond the real agreement; especially expressed if he heard Zandt’s to the latter Van when statement “ inwas, was about it a bail effect, to bond, sign 'A allow that mistake, bond.” court of not to equity ought stand caused, established and thus uncorrected, satisfactorily did intend thereby subject surety .liability assume, and to the decided which, preponderance according there was the time no evidence, impose purpose him. mistake of While is laid down that “a mere law, circumstances, of all other constitutes no ground stripped the reformation of written the rule that contracts,” an yet admitted established the law clearly misapprehension n does create basis for the interference of courts of equity, discretion and to be exercised the most resting only more in conso- cases, unquestionable flagrant certainly nance with the best-considered and cases best-reasoned upon- both point, Snell v. English Insurance American.” 98Co., U. S. 1 e 85, 90, 92; 138 Jur. f Redf. Story Eq, § ed,; Co., Iron Co.v. Hudson Iron 102 Stockbridge Mass. 45, 48; Dana, Underwood v. 4 Brockman, 309, 316; Jones v. 3 Ch. D. 791, Clifford, v. 792; 15 Canedy Marcy, Gray, v. 377; Morris & Essex Co., Green Railroad 1 Beasley, 165, 170; v. 10 Beardsley Knight, Vermont, 190; State 13 2 Arkansas, Paup, 129; Cases in 1, 979 Leading Eq. pt. 984; 843 to Pomeroy’s Eq. §§
The conclusion reached this branch of the case is the one consistent with fair towards those who were dealing to become sureties willing for the of Durant. If appearance it be not justified upon of mistake as to the mutual ground agreement, superinduced conduct of the party seeking now to take of it, there could be no advantage from escape that; the conclusion of a bond that made Griswold taking *21 liable as absolutely for amount to.be due surety, any adjudged from and not Durant, than the greater named, sum was, penal under all the circumstances a fraud in him. disclosed, law upon If the of Hazard attorneys intended to means of a obtain, by bond, more than he was entitled to such a. bond as the writ
GRISWOLD HAZARD.
Opinion of the Court. of ne exeat called and more than the court ordi- for, would dis- have Durant’s to narily them, given application if would writ; the intended to secure a bond that charge they make Griswold within the for liable, sum, personally penal decree then a fraud was Durant, money passed against him, which entitles him to ac- for, perpetrated upon relief; to the decided of the it must cording evidence, preponderance be assumed that Hazard’s that knew he attorneys signed bond in the to that, understand- belief pursuant previous it was one to secure Durant’s ing, more, nothing appearance, failed to inform that him, time, it was yet drawn to so as him a much impose upon larger responsibility. Their silence the circumstances, under was, question to a direct bond what affirmation that the meant equivalent Griswold it In did. view of what at the supposed jail passed was, their sufficient Saturday night, duty explanation, correct which he under evidently misapprehension labored. evidence, there be no under the can Besides, doubt, that the without the writ was reached agreement discharge with states consultation Griswold. No one of witnesses matter, that he was consulted or that he was in- about of an or ordef to dis- result formed as to legal agreement He testifies that knew writ. he nothing charge while such Hazard’s So, that, attorney, according agreement. bind Gris- to his a bond that would Was evidence, preparing not in excess $53,735, wold'" decree, absolutely pay any almost a be rendered one who was stranger might was then him, who, bill, Hazard stated engaged condition hazardous speculations precarious Hazard, under an aswas, pecuniarily, representative no had knowledge, Griswold agreement thus that the writ of ne compelling exeat should discharged; and put- risk principal, surety insolvency to surrender it out of his for his own ting protection, power, inas, bond, and obtain cancellation principal, been, had the bond have if case, done, surety might as he one was, appearance simply supposed from Griswold Durant. The of this concealment agreement *22 TERM, 1890. 286 Opinion of the Court. “ a him. The contract circumstances, under was, wrong “ entire faith Mr. Story, good of says imports suretyship,” whole trans- between regard confidence parties material, or or facts, concealment of any express action. Any advan- facts, or undue of such any implied misrepresentation or creditor, either by surprise taken surety tage furnish information, will undoubtedly proper by withholding- “If a- contract.” : invalidate a sufficient Again ground conceals from him facts surety, guaranty from party taking him to risk and suffers enter into which to increase his go real state of the false as to the undef contract impressions, amount to a a concealment will fraud, such because facts, make 1 is bound to disclosure.” Story’s party Eq. the same are 324, 215. To effect Franklin Bank v. Jurist §§ 1 Maine, 180, Scotland, 36 Smith v. Bank 196; Cooper, v. 10 Cl. & 272, 292; 935, Dow. Railton F. Mathews, 943; Currie, 2 Foxall, L. v. v. R. 114; Small Drewry, Phillips Q. 672; 3 B. & Adams’ B. Pidcock C. 605; 7 Bishop, But we do not our rest decision any Equity, upon § fraud in law or fraud We fact. the attor- ground acquit of Hazard- of desire to do neys purpose injustice toor commit a fraud him. But Griswold, we con- upon are of evidence, rules strained, .settled as hold, already their indicated, recollection of the under circumstances which, the bond 24 was executed is August materially mistake fault, is established alleged by convincing proof. it said that
But Griswold was of such laches in guilty relief now asked, he is not aid entitled to the seeking of a court This is based in’'equity. position principally what' occurred him between says Griswold Peckham after, fall the execution of the bond. Peck- year ham testifies: About the last October or the 1st No vember, I met Mr. Griswold on Thames time, along bond, Street, near office. He Newport, my spoke if it awere bond. I said, is a bond ‘No; bail. be liable to If, for the court
you may money. pay example, find„a should judgment suni of money n v. HAZARD.
GRISWOLD Opinion of the Court. the amount named could be held for it, he did you not,pay ' £ are but He I I said, Well, these bonds.’ you guess right, about it. He must do about it.’
must see Durant something ’ £ ? I asked he is rich isn’t he and Mr. him, Why, enough, *23 is but he ‘Yes; Griswold he rich is said, reckless, enough, no how such a man there is rich, long may stay telling I would must me like to add here that I men -give security.’ tioned to Mr. last winter. Mr. this said that Honey Honey he was from conversations he had had with confident, Mr. that Mr. had Griswold no recollection of client, Griswold, such conversation with and I that if Mr. me, Gris- replied it wold did not recollect I should hesitate about to swearing and that I did not think would it I swear under it, those and that I would not like .circumstances, to do so. certainly I have felt bound to state it further here, «till reflection upon If this be a these correct statement of explanations.” what between Peckham and Griswold, the occa passed sion referred it as to, months significant showing after the bond was executed Griswold of it as a bail spoke after bond. His of its declaration, Peckham’s explanation meant no terms, I are more than right,” naturally guess you discussion, without a courteous acquiescence, opinion in the law. Griswold, one learned while recall expressed, by to Peckham his the fact that he belief that it expressed ing on that denies or bond, he, a bail other explicitly was it was other than a bail admitted bond. ever 'Occasion, for was no absolute Griswold’s Besides, there mov necessity decree was until after some the matter passed ing against made to hold was him Durant, and until an attempt person bond. amount of the He for the made an ally responsible 13 R. I. effort be Petitioner, Griswold, dischargéd himself, from his bond within placing principal’s seen, as we have But, of the court. jurisdiction bond, said, after that even if the .declining discharge ' bond was to i considered no other effect question having than a bond to abide the decree made upon hearing cause, would considered its petition discharge until a final decree was judgment case passed.
'288 TERM, 1890.
Opinion Court. was an- passed September' Notwithstanding because of and doubtless the intimation that nouncement, more in law than he bond meant Griswold com- supposed, menced the suit more than a the decree year present before Durant, and the action at law rendered before Under the on the bond. circumstances of this brought peculiar think the defense of laches is without case we substantial merit. Whether laches is to be to a imputed party seeking the aid of a court of the circumstances equity depends upon There are no case. circumstances here that particular would a refusal the relief asked because of justify grant suit to Griswold’s have the bond cancelled delay instituting reformed. In the view the court takes of this case, the decree to proper if Durant were would be one make, the bond living, reforming so 24, 1868, as to make Griswold liable for the August sum named in the event that the failed penal principal and become to the orders and decrees of the appear subject *24 in court in the suit which writ of ne the exeat was issued. But a decree would not now be such Under the cir- appropriate. decree that will cumstances, the ends of only the accomplish is substantial one the justice perpetually enjoining prosecution suit or action, of. to make him liable in any proceeding (cid:127) on or reason of said bond. by sum.
We come to the action at in law, 53, No. which there now. was Griswold on the bond of against August agudgment for the sum of It is for $66,470. error that the assigned court sustained the demurrers to. the second, third, original fourth and fifth ordered the amended pleas, third, fourth and fifth be stricken from the and denied the pleas files, defend-. ant’s at the motions, for trial, on hi's judgment; eighth ninth It has been in assumed pleas. argument in record this case other substantially presents among ques- tions, the 1. Whether the bond of following: 24,1868, August not was obtained such fraud and concealment by as-rendered it void as Griswold? 2. Whether the face of record thé in suit which the order or equity decree of December 2, was the court rendered, was not without HAZARD.
GRISWOLD v.
Opinion of the Court. the essential suit, matter of jurisdiction subject it is was to administer the which, affairs, object argued, assets, and distribute the of a Pennsylvania corporation, by ? 3. of decrees and orders of a court Rhode Island means in the "Whether duress on the simple operating principal bond could be taken 4. Whether advantage by surety? of Griswold’s notwithstanding stipulation plaintiffs, under the were able counsel, trial, prove, 2,1882, an amount of excess decree December damage could maintain an sum the bond declared on,” penal until it on the bond for that or other sum, action suit what ascertained and Hazard’s distinct adjudged equity if Durant was ad- $16,071,659.97 any, part, to be account- Court of Rhode Island judged by Supreme to the America, able Credit Mobilier actually belonged, awarded, would be the bond? obligees ultimately the counsel of the These have been questions argued their respective parties signal ability, importance But in view of the condition recognized. present best now to discuss them. record is not deemed case, .of which the court below ordered amended ground upon n It does not be stricken from the files appear. may pleas (Slocomb formal demurrer be that motion treated as a because, 10 R. I. or was Powers, 255), judg granted, did the amended ment of the court, materially pleas to which the defence as special presented pleas change em not, therefore, were sustained, demurrers were fairly for their filed. made counsel braced being stipulation much were broader, in our amended But, pleas judgment, than were the averments, as well as their more specific them could and the arising upon original questions pleas; demurrer. Smith raised have been more appropriately *25 Carrol, more 1890. We are 17 R. I. willing July in of the decision of the because case, make this disposition the bond in liability case No. 50 Griswold’s respect' discussion said, of what has been there sued on. view In seem,to be of the above would unnecessary. questions sustained. in No. 51 was The demurrer to the bill properly VOL. CXLI 19— OCTOBER, TERM, 1890. -
Dissenting Opinion: Brown, J. if error, committed any, Court of by Supreme Rhode Island in not executed release, allowing Durant by the in receiver court of the Pennsylvania Credit Mobilier of to be America, as a defence in the suit interposed brought by Hazard Durant and could against others, not be corrected by bill in equity, the bond surety |iled August 2é; for the if reason, there were other, .no that the release was delivered prior the state court judgment constituting the basis of the action at law on the bond.
The demurrer to the bill in case No. 52 was also properly sustained. In that case the validity in the proceedings Rhode Hazard Supreme Island, Court against others, assailed that the bill in ground tbgt suit did not show effort had sufficiently been made Hazard, sued plaintiff therein, who as stockholder, action Durant' procure corporate against Crédit Mobilier of It America. necessary say ground of mere presents error in only question the judgment state and does not affect its jurisdiction. The deeree in '50 suit No. must be reversed, with directions to enter a new deereeperpetually enjoining defendants therein, and each them,from, a/nysuit, action prosecuting Griswold on proceeding,, against the bond executed by
him on the August, as one the sureties 2Ifth of Thomas C. decrees "cases Durant; Nos. 51 and. 52 <md must in the ; judgment action at law, affirmed No. must be reversed with directions pro- for further this, inconsistent with ceedings opinion. Griswold is nott entitled tohis costs this court in cases50 and 53, am.dthe other cases a/reentitled appellees to their costs here Griswold. It is so ordered. Mr. Justice No. 50. dissenting, Brówn, have I should no hesitation concurrence announcing my of the court in this did opinion it not cáse, seem to tome involve a disturbance of legal which I had supposed principle^ to be well settled and confirmed by decisions of this repeated court. *26 HAZARD.
GRISWOLD v. 291 Brown, Dissenting Opinion: J. show, to
To entitle the he is bound decree, to a plaintiff failed to show either. either or fraud. I think he has mistake — was which There nothing unprecedented scarcely anything — in of the he could be called unusual the character obligation was as is to be assumed. The bond such an one proper given ne a writ of to obtain the of a defendant held upon discharge . In it is said Daniell’s exeat. this Chan- treating remedy, “ the sheriff to of the Practice, that, writ, the terms cery suf- him, cause the to come before give party, personally, that he writ, ficient bail or indorsed on sum security will with- seas, not or to into beyond go, attempt go parts he is to commit him refusal, out leave of and on his court; “ the court will dis- It is said that, the next also prison.” it the cir- the writ whenever merits, appears, charge upon the affidavits as case, cumstances disclosed upon either defendant, it and the answer granted was defendant is not that the has no or that the case, go- plaintiff do either and this it will out of the absolutely jurisdiction; ing the defendant’s is, or giving security conditional^: 3d. Am. ed. 1814, the decree of the court.” abide perform verbal some 5th Am. with 1710, 1713, changes; ed. 1817; v. & 129 Atkinson Leon Beames, ; 1 Ves. Howden v. Rogers, 5 91; Ves. v. ard, 218; 3 Bro. C. Roddam Hetherington, C. 105; McDonough v. 12 N. J. Parker, Parker (Beasley) Eq. E. 249. 18 C. v. N. J. (3 Gaynor, Green) Eq. to dis to be the practice it seems also York,
In New proper to an security writ defendant’s giving charge amenable to himself bill, and to render swer the plaintiff’s Bunch, Mitchell v. of the court litigation. pending process 2 McNamara 7 606; Dwyer, Paige, Paige, bail sufficient The writ in this case give required u Thomas the said he, of $53,735, or sum security, into beyond will parts go, attempt O. go, court.” Durant said our this without leave State, said, because, security, unwilling give and be in to leave the for him necessary State imperatively therefore, It was,, stipulated New York on the next Monday. that he Hazard, his solicitor and plaintiff, between TEEM, OCTOBEE 1890.. Brown, Opinion: Dissenting J. bond, marked in
should file surety penalty ne to abide and the orders and exeat, writ of decrees perform the writ of cause,” of the court said ne exeat thereupon *27 These are the exact terms should bond discharged. and that was There is some signed by plaintiff. prepared to took the interview on yjhat conflict as place upon Saturday- that the bond which it was should be night, agreed .given. that it witnesses assert was understood that a Plaintiff’s bond to be for his before the was 'courts when 'given appearance wanted. the other defendants’ hand, witnesses, Upon Judge Peckham, Mr. who, and outnumbered Bradley although witnesses, were men mem character, plaintiff’s highest bers of the and legal profession, understanding thoroughly about, what were" swore that the nature of the they proposed bond was discussed Mr. Yan freely by Judge Bradley, Zandt, and Mr. and the fact that were bonds which they hold the and to sureties' liable principal would pay money case Durant should not decree made the court, perform any was commented them, for upon by Judge Bradley speaking n the defendants, and Mr. Zandt and Mr. Yan themselves, The sureties were it is not present, although claimed that took in the discussion. I do part care, to however, to reconcile this or attempt testimony, deter mine where the truth lies. Griswold himself exactly admits when the bond that, and Submitted for his prepared sig nature, he read it, noticed the terms abide per ” .form the- decrees of the court; but, absence of any he inferred that it explanation, meant that Durant should and render himself appear to the of court. subject processes He does not that its contents or its complain effect were legal or that him, misstated or Mr. whc Judge Bradley Peckham, suit, represented plaintiff misled him false -by any as to its representations y tenor or He re purport. apparent- frained from of its b t as asking any explanation meaning, sumed himself it, to construe it a different gave meaning from that which the law. -it. is a This, me, seems gave mistake of law, which will no relief. Gris equity give wold, 13 R. I. Petitioner, 1 Pet. 125; Hunt v. Rousmaniere, 293 HAZARD.
GRISWOLD Brown, Opinion: Dissenting J. 46; 99 Hart v. Ames, Hart, v. U. S. States 15; United S. 85 2 Co., U. ; D. Snell Insurance 670; Pomeroy 18 Ch. Juris, sec. 843.
Equity L. R. 14 the defendant en 85, 90, Powell v. Smith, Eq. In of an the enforcement agreement give deavored defeat as to the that he was mistaken lease legal ground an Master effect of important provision. meaning “ All those cases which said: defence, Bolls overruling are cases where there been cited have argument during where sold, either a and doubt thing dispute certain an am words expressed things agreement be misunderstood one of the manner, might biguous In cases the court has held it must all those parties. if at the and that the mistake is look evidence sufficiently then set aside the But here will court agreement. proved certain, words of the are agreement quite *28 that was not understood was the effect certain thing legal which it that is Now, words contained. no mistake ground It is at all. a construction an upon question agreement concerned.” by everybody agreed Eaton v. 34 Beav. a settlement Bennett,
In marriage in as husband a manner con drawn, wás the intended alleged, he to the but before the knew its trary agreement; marriage under and reserved his contents and executed it protest, right not, it held he could after the mar to set aside. It was the settlement. The sustain a to' Master of suit rectify riage, in such cases as these, “the Bolls observed that only' both have executed it under rectifies settlement when parties mistake, what neither them'intended. and have done they draft and the settlement Here examined prior plaintiff of its was aware I to its execution, perfectly. 'purport. in it it this- think aside or alter court.” that he cannot set Indeed, court, that in it familiar to this order to is a doctrine set aside an for mistake must that the instrument appear one desirous of was mutual, mistake party taking into which he himself common of an error advantage Co., v. Marine Ins. the other has fallen. Hearne 20 Wall. party Stockbridge 490; Co., v. Hudson Iron 102 Iron Co. Mass. TERM, 1890. 294 Brown, Dissenting Opinion: J. Allen, v. 3 German-American
45, 48; 321; Sawyer Hovey, Davis, Mass. 316. Ins. Co. that was between the
In view entered into stipulation to this I do not see suit, solicitors for the parties respective mistake how it can be claimed that there upon of the bond, or Peckham as purport part Bradley to such mis- and as before unless were observed, parties is no the instrument there take, reforming equity In addition to this the evidence must such as ground. leave no reasonable doubt in mind of the court as to the of such existence and in without mistake, view, my discussing it at this case falls far short of length,' testimony certainty. requisite it seems to me' that the defence of laches is com-
Again; in this case. This bond was executed plete August, or, that, It is shown as October November of early the same in a conversation between Mr. Peckham and year, the plain- this, tiff character of bond, as Newport, distinct being called, from a mere bail to Mr. bond, Griswold’s attention Mr. who him Peckham, told it was a bond which he be liable to In Mr. Peckham’s own might pay money. words, for If, he said: the court should find a example, judgment sum of did and he money it, pay held could be for the amount named these bonds. He you ‘ IWell, are said, but I must see Durant about guess you right, him,- it. He must do about it.’ I asked something Why, ‘ is rich isn’t he? And Mr. Griswold he is enough, said, Tes, rich but he is and there is no reckless, how enough, telling ” man such a and he must me may rich, long stay give security.’ It then from this which is uncon- appears testimony, practically *29 that within tradicted, three months after the bond was given, was that it was a bond for the plaintiff distinctly apprised He to have done about money. payment appears nothing however, twelve when he filed it, a years; petition Court Rhode Island to surrender Supreme permission asking into the Durant of the court and be relieved from the custody —bond which the court refused In this petition grant. there was no or petition fraud, suggestion imposition, y..
GRISWOLD HAZARD.
Dissenting Opinion: Brown, J. it, unfairness the- obtaining practised complainants defendant sureties.” 13 R. I. Griswold, Petitioner, was not until after this had been denied, It and an petition he intimated that be bound to might pay penalty opinion bond in the event a decree he this for the first time filed set that he had been bill, up In execution of bond. the meantime imposed upon has died Hazard lost has whatever he advantage* have had in the surrender of his might body compliance bond which understood plaintiff says< - writ. discharge given defence is an I avoid the present cannot impression view, of the I think the case, In plaintiff afterthought. which this said that decree of court failed to exercise diligence entitle S. Sanders, 93 U. necessary Grymes mistake or fraud. ground party rescind court and should be think the decree of the I right below affirmed. Beadley did not and Me. Justice Beewee
Me. Justice par- the decision of case. ticinate