904
FEDERAL REPOR.TER,
vol. 49.
effect amount to an attempt on the part of the complainant$ to deceive and defraud ,the defendant, and a counter-attempt on the part of the ,defendant'to deceiv:e them, with the result that the former haye received $8,000 of the' defendant's money, which the defendant paid intentionally and voluntarily , intending that. they should receive it and retain it; and the defendant has obtained possession of and retains a deed to the property foom Barbee T. Blackburn, with covenants for title, which, although it purports to convey the entire property" is, a valid conveyance of only an undivided one-haJ'f thereof; and by thel:lonveyance of said undivided one.,half interest to the defendant, Barbee T. Blackburn has in part executeda contract whioh he voluntarily made with the defendant, and in doing· 80 he has exhausted his power to perform said contract, 80 that it remains partially unperformed and broken. There has been an abatement'ofthe contract price, corresponding to the difference in value of the property conveyed by the deed and property which the vendor by said contract assumed to. sell and promised to convey. :rrhe liability of the complainant upon the covenants of his deed is no greater than upon his litokeil contract. 1 consider that there will be no failure of justice if a· conrtof equity simply leaves all the parties in the situation in which they -have placed themselves. Let there be a decree dismissing this suit, with costs to the defendant.
in
RICHMOND
&: D. R. Co.
w.
BLAKE
et ale
(C(rClrit CQWt, D. Boufh CarOUna. :March 26, 1899.)
1.
ILLjl(JA'LTAUTION--lN.nmOTION-TBNDER-PAYloIBNT NUNC PRd TUNC.
.
oompanYl COUld.XlOt qbject that the action of the treasurers might not be binding on the. state, wbich "was not a party, since tbe company itself had sought to havetbEl assessment deciared invalid without making the state a party to the bill the would have no right to hold the money until the submitted to Its jUrlsdictlon, as this would be taking advantage of her necessItIes to ooerce her. ,'< -
In Equity. Bill by the Richmond & Railroad Company against Blake and others, county treasurers, to epjoin the collection of taxes. Heard on a motion requiring complainant to pay certain moneys admitted to ,be due. Granted. Mitchell '&;Smith, Smythe· &: Lee, JiIitz Simons &: ,Moffett, J. T. Barron, Brawleyr:&:, Barnwell, and Cothran, Wells, A'l'lBd Jc Cothran, for complain-
RICHMOND &: D. R. 00. 11. BLA.XE.
905
J. L. McLaurin, Atty. Gen. of South Carolina, Inrd &: Burke, and Ira B. Jones, for defendants. SIMONTON, District Judge. The bill is filed against certain persons filling the office of county treasurer in the several counties named therein, and certain other persons, sheriffs of the said comities, respectively. The prayer is for a perpetual injunction against them from proceeding 1 by levy or otherwise, from collecting a tax based upon an unlawful assessment. The bill admits that there is a certain sum lawfully due, avers that this sum has been lawfully tendered to each one of the defEmdants, who a.re treasurers, at the proper place, within thepropei' time, and in lawful money, and that such tender has been declined., It craves leave to pay the money into court. Upon the filing of the bill, a rule to show cause was issued against' the defendants, requiring them to show Cause on ihe first day of the ensuing term, (4th April next.) In the mean time,1he restraining orqer was entered. Attorneys representing the defendantscame intocotitt, and entered a motion that the complainant be again to tender the money previously tendered. No appearance of any kind had been entered, and no defense or plea filed in their behalf. As a matter of pta:dice, it is wen to say that. under these cIrcumstances, the motion could not have been entertained. The defendants were not in court, had nQt submitted themselves to its jurisdiction, and could not be heard by counsel. An unqualified appearance has nowheen entered. The ml)tion has been modified, so as to be, in effect, that the complainant nunc pro tuncpay to the several treasurers the sum of money tendered to each on the 19th or 20th February last; such payment to have the sarneforce and effect as if made and received on the day of said tender. The. case has been heard upon the bill and its exhibits, and on affidavits offered by the defendants,. It is a matter of extreme delicacy to interfere with the means by which moneys are raised. for the revenue of the state. In the language of the supreme court in'Dow8 v.Cityof Chicago, 11 Wall. 108: "It is upon taxation that the several states chiefly rely to obtain the means of carrying on their respective governments. It is ofthe utmost importance to all of them that the modes adopted to I'nforce the taxes levied should be interfered with as little as po8si ble." WhHe,'therefore, in many cases. the courts must interfere when there is danger of injustice or, a violation of the law, (PelEon v. Bank, t01 U. S. 148; (Jurnmings v. Bank, Id. 153,) every precaution is taken to limit the interference within the narrowest necessary limits, and to pre"'ent any delay which can be avoided, (DOW8V. Oity oj Chicago, supra.) The court takes care that only so much of the tax is enjoined. as is claimed to be illegal. It requires as a condition precedent that the amount of tax admitted be paid or tendered. "It is the established rule of this court that no one can be permitted to go into a court of equity to enjoin the collection of a tax until he hall shown himself entitled to the aid of the court by paying so much of the tax assessed against him as it can plainly be seen he ought to pay. Before he asks exact and scrupUlous justice,
do eqtlit,,'by asitIsqlear he ought to pay, and delay only the remainder." Bank v. Kimball,103 U. S. 732j Stat6 Railroad Tax Oases, 92 U. S. 575. The complainant fulfilled this . and tender(l{l sums' admitted.. Thl'l tender having been rebeca\lSe the leave is asked to pay them counst¥ who)ed for the objects to . tilt) from fear that .some right of the complainant may be]mtin that an maybe taken elsewhere will bit observed that the ord.er pay the money into by the.county treasurers. 1t is of their refusal to receive it on the day it "'11'.. 4s&:teqder, it is a coptinuous act. If the prayer ofthe they be permitted to do now what they should have Qn the tender, the receipt of the money must relate that do,yli8pd it ,must operate precisely in tqe same way, and to woul<ihaveoperatedtben ..Even were this the 1:>efore partiesqn sidtl$ of the by a superlOr court, will bind their, theworId. .tt is ,urged that, as the D19peYI.willeventually be,coIQe--:-mayDow be-the money of the state of no action on the part of or against these defendants can the state. < This may be true. But a final 4ecree upon the aBSelfSmen,t is sought intllis case, these c;lefendants being the If sl,lch decree can be made so to operate as to IDake,u"h, MSessment wholly void, surely an order orc;lecree made upon this ?.c.. utor.Y ion, all the par.,ties being. . .. the jU.risdiction of and suplm ... them,Sely .. to the co . .· .. ,would have an eq.ually contro.lcourtrcl\oIlnot hold this fund, admitted to be payable to the defendants, unti).,thestate in and submit to its jurisdictioP'!nThis wowd bathe us.e of thEl: nepessity,of the state to If there, b,e danger or fear in this Cfl,use, it arises from the peculilU' o(,pur ,system, .andcannot 'be avoided. part of tpe re\-enues of the state.. :tt IS now. due to: the state. by severa14efendant treasurers t chargeqto,tbem, To discharge it over when received to the state, and pro tanto discharge the complainant. Both their desire that. the admitted sums go in,to the Complll.inan,t shows this byitstenc;ler, the defend.. ants ·motion., As, we pave :seen,. no delay be avoided is Plust betp.¥en that no ,rights are compromised. '. J. D.,'e.I>qs..uin.g th El... . .·. eyin the....'r . ,and. lira.wipg it out immediate;y,,:'¥p1;lld be and idle., But the gefendants have refused made"to them much and: with great trouble." sameJormaHties agalD. Indeed, their motion,,',neqeseari.lY have come to retrace their steps, snp. must ohtiihltheir request here. , . . '. ., ' It is and the cOrpplainant with the clerk of this days from the of tl;1is otder,acer-
.he :rnustjinlt
GREEN tI'.ORICAGO, S. &'C. R.Ca.
90'1
tifi.ed check, drawn l1pona soivent bank, payable to each county treasherein;' the check to such treasurer being for the same sum urer of money ·heretofore tehdered" to him by complainant as the sum admitted to be due; that the said clerk deliver to each of said defendants, or to his attorney in this cause, the check so drawn; tha.t upon delivery of such check, the bank upon which it is drawn remaining solvent, it shall be received and accepted as of the day of the original tender, with the same force, effect, and operation, to every intent, purpose, and inference whatsoever as if'the money was actually received on that day. All questions as to the costs of this receipt and delivery are reserved.
GREEN .d
al. ".
CHICAGO; S.
& C. R. Co.
et al.
(Circuit Court oJ .Appeals. S1xth. C'rou(t. January 18. 1892.) 1. ApPBAL-AJl'FJRMAN.MANDATB-ALLOWANOB OJ'INTEREST.
2.
When a judgment for money which does not award interest is affirmed Wltbout by the lower court referel\ce to the question of interest, such a decree ia to be as a d4(claration that no inte,rest is to be allowed.
SAME-SUPREME COURT RULE.
I
RUle 28, Sup. Ct. U. S., providing for the allowance of Interest on afDrmed jndg., mentl, ill for the guidance ofthe supreme court only, and does notauthorizll an in·, ferior court to add an award' of interest to a decree affirming its own judgment;' the function of the inferior court in luch CBBe8 is minilltetial, rather tban judioial.
In Equity. NO'f"I"iA & Norris, for T. J·. ()!Brim, for appellees. Before JACKSON, Circuit Judge, and SAGE and SWAN, District Judgee.· JACKSON, Circuit Judge. In the matter of the appeal of Henry Day from the or\ler of the circuit court of the United States for the western district of Michigan,. southern division, upon the petition of Daniel E. Sickles and Benjamin F. Slevens in thE'! above·entitled cause. Under foreclosure proceedings in the above-entitled cause, a fund was brought into court for distribution among holders of the bonds of the defendant railroad company. Int1le distribution of said fund, Henry Day, assignee of Benjamin Richardson, by mistake was paid and received more than he was properly entitled to by the sum of $2,173.91. By decree entered in the cause on October 8, 1883, said mistake was corrected, and said Day was ordered to relimdsaid overpayment, which was adjudged to belong to several claimants in certain proportions and amounts. From .. is order;aIid the of distributibnrelating to other matters not necessary to be noticed, Day appealed to'the supreme court. This appeal was taken ir. November, 1883, and Day filed an approved superIedea8 bond, 8b required in the allowance thereof. On January 13,1890,
·