Ward. v. Chamberlain.

This case came up on a certificate of division in opinion between the Judges of the Circuit Court of the United States for the Northern District of Ohio.

The complainants, on the 12th day of November, A. D. 1856, upon appeal from the District Court, obtained a decree in the Circuit Court of the United States for the Southern District of Ohio, against the defendants, Philo Chamberlain and John H. Crawford, in a proceeding by libel for damages sustained by the libellants by a collision on the waters of Lake Erie, between the steamer Atlantic, belonging to the libellants, and the propeller Ogdensburg, belonging to said Chamberlain and Crawford, whereby the steamer was sunk and lost:

The case was taken by appeal to the Supreme Court of the United States, and the decree of the Circuit Court there affirmed.

On the 7th day of July, 1859, a joint decree was entered in said Circuit Court, upon the mandate of the Supreme Court, and by the agreement of the parties, against Chamberlain and Crawford, and also against the defendants, I. L. Hewitt, John H. Chamberlain and George W. McNeil, their sureties in the appeal to the Supreme Court of the United States. It was stipulated and agreed between the libellants and the defendants in the last-named decree, that Philo Chamberlain and John H. Crawford, the original defendants in the libel should make certain payments periodically on account of the last-named decree, that if such payments should be punctually made, no execution should issue; but that in default of any such payment being made as required by the agreement, the complainants might thereupon proceed to collect the amount due and unpaid, as they should see fit. Two payments were made and two defaults afterwards occurred: complainants caused execution to issue upon the decree, against the goods and chattels, lands and tenements of the defendants therein; the Marshal found no goods or chattels whereon to levy, and for want of such goods and chattels he levied upon the lands of the defendants, situated in the Northern District of Ohio, and described in the bill. The other defendants claimed rights and interests in, and liens upon said lands. The defendants had no goods or chattels liable to execution, and no lands or tenements in the State of Ohio, other than those levied upon and described in the bill. The prayer of the bill was, for discovery, that the rights of the parties and the dates and validity of their several liens in respect of said lands might be ascertained, that the lands might be sold and the proceeds applied, so far as could of right be done, to the payment of the amount due, and for general relief.

To this bill the defendants filed a general demurrer.

A hearing was had on the questions raised by the demurrer in the Circuit Court at the July Term, 1860, and the opinions of the Judges being opposed, the questions were certified to this Court for decision.

The points of law upon which the Circuit Court divided are distinctly set forth by Mr. Justice Clifford in the opinion of this Court.

Mr. Newberry, of Ohio, for Complainants.

Mr. Spalding, of Ohio, for Defendants.

Mr. Justice CLIFFORD.