West v. Brashear (39 U.S. 51)

ON appeal from the Circuit Court of the United States for the District of Kentucky.

This case was before the Court on appeals from both the parties; and the proceedings and decision on the case are reported in 7 Peters, 608.

The proceedings in the Circuit Court of Kentucky, subsequent to the mandate issued from the Supreme Court, were the only matters in controversy on this appeal.

The mandate of the Supreme Court was as follows: 'Whereas, lately in the Circuit Court of the United States for the District of Kentucky, before you or some of you, in a cause between Walter Brashear, complainant, and Francis West, and John Lapsley, and Samuel Mifflin, and Henry Nixon, trustees of said West, and Thomas M. Willing and Henry Nixon, executors of John Nixon, deceased, defendants in Chancery, the decree of the said Circuit Court was in the following words, to wit: 'It is the opinion of the Court, that the complainant is in equity entitled to a credit or set-off against the judgments at law obtained against him in the name of West, for the sum of four thousand and eleven dollars and sixty-eight cents, being the amount of the judgment obtained against the complainant, as special bail for West, by George Anderson; but the complainant is not entitled to any of the other credits or set-offs claimed in his bill, and amended bill. It is therefore decreed and ordered, that the said four thousand and eleven dollars and sixty-eight cents, or so much thereof as will extinguish the same, shall be, and is hereby, credited and set off as payment on the 22d of October, 1810, against the judgment at law, not against or not covered by the injunction bond; and that the residue of the said four thousand and eleven dollars and sixty-eight cents, if any, and the costs of the complainant in this suit, shall be, and is hereby, credited and set off against so much of the other judgment at law; the costs to be credited as of this day: and the clerk is hereby directed to tax the costs of this suit, and make the necessary calculations, and enter said credits accordingly; and it is further decreed and ordered, that as to the residue of the said judgments or judgment, as the case may be, after entering and giving the credits as aforesaid, the complainant's injunction shall be, and the same is hereby dissolved, with ten per centum damages upon the amount of such residue at the time the injunction was granted, and that the complainants may proceed to recover by execution at law the said residue and also the damages aforesaid, as by the inspection of the transcript of the record of the said Circuit Court, which was brought into the Supreme Court of the United States by virtue of an appeal, agreeably to an act of Congress in such cases made and provided, fully and at large appears.'

'And whereas, at the present term of January, in the year of our Lord one thousand eight hundred and thirty-three, the said cause came on to be heard before the said Supreme Court on the said transcript of the record, and was argued by counsel, on consideration whereof this Court was of opinion that there is error in the decree of the said Circuit Court in allowing to the said Walter Brashear credit for the money paid by him as special bail for Francis West, at the suit of George Anderson, and also in refusing to allow the said Walter Brashear credit for the value of the ginseng shipped and sold by the said James Latimer, with the assent of the said assignees of Francis West, after the same had been attached in his hands by the said assignees: It is therefore decreed and ordered that the decree pronounced in this cause by the Court of the United States, for the seventh circuit, in the District of Kentucky, be reversed and annulled, and that the cause be remanded to that Court, with instructions to perpetuate the injunction as to the sum which shall be equal to the amount of the ginseng shipped and sold by the said James Latimer, after the attachment sued out by Francis West for the use of Samuel Mifflin, John Lapsley, and Henry Nixon, assignees for the benefit of his creditors, was levied, to dismiss the bill as to the residue; and it is further ordered that the parties pay their own costs in this Court.

'You, therefore, are hereby commanded, that such further proceedings be had in said cause, in conformity with the opinion and decree of this Court, as, according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding.'

The cause being before the Circuit Court on the mandate, in November, 1833, it was referred to a commissioner to state the accounts between the parties in conformity thereto; and general leave was also given to take the deposition of James Latimer.

Under this order of the Court, the commissioner made a report, and stated that he gave credit to Brashear, under date of May 11, 1809, for two thousand eight hundred and seventy-three dollars and fifty cents, the amount of ginseng shipped by Latimer and Redwood. On exceptions filed to this report, it was set aside by the Court, on account of a sufficient sum not having been allowed for the ginseng shipped by Latimer, after a foreign attachment, sued out by West, had been levied on the ginseng in the hands of Latimer. The commissioner, to whom it was recommitted, was instructed to examine and ascertain all the ginseng shipped and sold by Latimer, after the attachment, and all the charges on the same. The commissioner reported the value of the ginseng was five thousand five hundred and ninety-nine dollars and fifty cents, and the charges amounting to three hundred and sixty-one dollars and sixty cents.

Exceptions were filed to this report, which were overruled; and the Circuit Court gave a decree in favour of Walter Brashear in conformity with the same. The complainants prosecuted this appeal.

The case was argued by Mr. Coxe, for the appellants; and by Mr. Crittenden, for the appellees.

For the appellants, Mr. Coxe contended that the mandate of this Court did not authorize the allowance of the whole amount of the ginseng belonging to Brashear, which had been shipped to Canton by Mr. Latimer; but only that part of it shipped after the attachment laid by the appellants. The whole value of it is allowed in the decree of the Circuit Court.

Mr. Crittenden claimed that by a true interpretation of the mandate, the sum allowed in the decree was the amount reported by the commissioner.

The counsel for both parties supported their allegations by a reference to the report of the case in 7 Peters, and to the proceedings of the Circuit Court under the mandate; which are referred to in the opinion of the Court.

Mr. Chief Justice TANEY delivered the opinion of the Court.