98 F. 939 | 5th Cir. | 1900
after stating the case as above, delivered the opinion of the court.
This case was determined in the court below on a question of equitable jurisdiction. The case was on trial at law, and the court was of opinion that it “involved an accounting, and was therefore equitable in its nature, and could not be entertained in a suit at law.” It is true that in the United States courts the distinction between common law and equity is maintained. This distinction must be .observed, even if it be abolished by the code procedure of the state in which the federal court is sitting. In re Sawyer, 124 U. S. 200, 209, 8 Sup. Ct. 482, 31 L. Ed. 402; Fenn v. Holme, 21 How. 481, 16 L. Ed. 198. Many cases of accounting arise of which an equity court alone has jurisdiction. . But, if the case is one of accounting only, it will be found that the complicated nature of the accounts constitutes the ground for going into equity. Kirby v. Railroad Co., 120 U. S. 130, 134, 7 Sup. Ct. 430, 30 L. Ed. 569. The bill which invokes this jurisdiction is insufficient if it only alleges that the accounts are of an intricate and complicated nature. It must descend to particulars, and state the facts showing the intricate and complex nature of the accounts. 3 Daniell, Ch. Pl. & Prac. (4th Am. Ed.) p. 1929, and note 1. It cannot be maintained that a court of
When the writ of garnishment was served on Tandy, he held about 221 head of cattle bought under the contract. Hudson, the purchaser, had a contingent interest in them, for he was to have one-half of the profits from the sale of the cattle. Other cattle were purchased before the garnishee answered. It is important to note that some of the cattle had been sold before the garnishee answered. One-half of the proceeds of such sale, after deducting moneys advanced by Tandy, with interest and expenses, belonged to Hudson. This was the status when the answer was filed. Before the trial all the cattle were sold. The evidence showed that after deducting advances, interest, and expenses, there remained a profit, and that under the contract Hudson’s share was several thousand dollars. The transactions under the contract had been closed. Clearly, Hudson, the defendant in the judgment, could have maintained an action at law for his share of the profits remaining in Tandy’s hands, for their joint trading venture was ended. This being true, the garnishee, Tandy, is indebted to Hudson in the sense of the statute authorizing garnishment. Rev. St. Tex. art. 219; Rood, G-arnish. § 57. The general rule is that the liability of the garnishee is determined solely with reference to the facts as they existed when the writ was served. Id. § 49. This doctrine, however, is modified in some of the states by the garnishment statutes, and in others the courts have limited its application. “Some liability,” said Chief Justice Shaw, “must exist at that time, in order to charge him; hut that liability may he greatly modified, and even discharged, by subsequent events.” Smith v. Stearns, 19 Pick. 20, 23. In Edgerton v. Martin, 35 Vt. 116, it was held that by the service of the writ “the plaintiffs gained the right .that the goods, effects, and credits of the defendants then in the trustee’s hands, as well as all collections which he should afterwards make on the demands turned out to him, should he applied on his liabilities for them, in accordance with the contract between them existing at the time the process was