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ants interfered to prevent the collection of the general taxes of the county The alleged unlawful acts of the defendants could injure only the plaintiff, and the other judgment creditors of Scotland county, for whose benefit the special tax was levied. If there is any cause of action against the defendants, it belongs to the plaintiff and other judgment creditors individually, and the public has no share in it. The objection that the plaintiff is only injured in common with all the other members of the body politic, and has no separate and individual cause of action, cannot be successfully urged. The right of a judgment creditor to proceed by action against those who rescue the person of his debtor arrested on mesne or final process, or interfere with the goods of his debtor so as to prevent a levy or sale by the sheriff to satisfy his judgment, is well recognized at common law. Thus, in Smith v. Tonstall, Carth. 3, 4, adjudged on demurrer in the king's bench and affirmed in the house of lords, A., a judgment creditor, sued B. for procuring J. S., the judgment debtor, to confess a judgment in favor of one J. N., to whom he did not owe anything, and J. N. sued out execution on this feigned judgment, by virtue of which he seized all the goods and chattels of J. S., which he esloined to places unknown and converted to his own use, by reason whereof the plaintiff lost his debt. Held, that the action lay.
In Comyns' Digest, under the head of “Action on the Case for Malfeasance," A 5, it is stated that an action will lie for rescue of a person arrested upon mesne or judicial process, citing May v. Proby, 2 Cro. 419; Hodges v.. Marks, Id. 486; Mynn v. Coughton, Cro. Car. 109; or of goods taken in esecution, citing Fitzherbert's Natura Brevium, 101, 102, Reg. 117. And the action lies by the party to the suit in which the arrest was, citing Hodges v. Marks, 2 Cro. 486; Mynn v. Coughton, Cro. Car. 109; 2 Rolle, Abr. 556, pl. 14, 15. Under the head of “Rescous,” D 2, the same author says: “So, if a person arrested upon mesne process be rescued, an action upon the case lies against the rescuers by the plaintiff in the suit, for he has the loss and no remedy against the sheriff," referring to cases above cited, and also to Kent v. Elwis, 2 Cro. 242; May v. Proby, 3 Bulst. 200; Congham's Case, Hut. 98.
In 2 Rolle, Abr. 556, pl. 14, 15, it is said: “If a sergeant of London or bailiff of the counter take a man on a capias in process at my suit, and J. S. rescues him out of his possession,"I may have a general writ of trespass against him, because the sergeant is, for this purpose, my servant as well as the king's, and because the taking out of the sergeant's possession, he being my servant, is a taking out of mine. Trin. 15, Jac. I., Wheatley v. Stone, adjudged on a writ of error at Sergeant's Inn. But I may have action in the case as well. Trin. Jac. I., Speere v. Stone, affirmed same time; S. C. Hobart, 180, sub nom. Wheatley v. Stone."
So in Mynn v. Coughton, Cro. Car. 109, cited in Bac. Abr. “Execution,” 0, it was held that, if a defendant be rescued after being taken on a capias ad satisfaciendum, the plaintiff may have an action for the misfeasance against the rescuers; for he is the party who hath the loss, and to whom the injury is done, and he ought not to be compelled to sue the sheriff, who may be dead, and if he recover, the rescuers may plead it if sued by the sheriff, so that there is no danger of being double charged. 3 to 7. Š. C. Hut. 98, sub nom. Congham's Case.
In May v. Sheriff of Middlesex, Cro. Jac. 419, which was an action on the case for escape on mesne process, it was held that rescue may be pleaded in bar, but not for escape on final process. On mesne process, the sheriff was not bound to take posse comitatus, and on rescues returned by sheriff on mesne process, process may be awarded against the rescuers, and an action on the case lies against them. S. C. 3 Bulst. 198–201, where a full argument by Coke and Doddridge is reported. The latter refers to Fitz. N. B. 102, to show that the party may sne rescuers.
Hodges v. Marks, Cro. Jac. 485, was an action on the case for rescuing
plaintiff's debtor out of sheriff's possession after arrest on mesne process, whereby the debtor escaped and went to places unknown. Held good, for the loss is the plaintiff's, as he cannot sue the sheriff; and therefore it is reason that he should have action against those who did the injury to him whereby he lost his process and his means to recover his debt. Kent v. Elwis, Cro. Jac. 241. See, also, May v. Proby, 3 Bulst. 200; Bonham Strangewaie's Case, 5 Mod. 217; Boothman v. Earl of Surry, 2 Term R. 5; Bonafous v.49 Walker, Id. 126.
In Bentley v. Donnelly, 8 Term R. 127, which was an action by plaintiff in primer action against rescuers of defendant after arrest on mesne process, the action was sustained.
These principles have been recognized by courts of high authority in this country. In Yates v. Joyce, 11 Johns. 136, Yates, the assignee of a judgment against John Joyce, which was a lien on the property of the latter, was about to take out execution and seize a certain lot of land, and the defendant, G. Joyce, knowing this, pulled down and carried away certain buildings from off the land, whereby Yates was deprived of the benefit of his judgment. It was held that Yates might maintain an action on the case against G. Joyce for fraudulently removing the property of John Joyce and converting it to his own use, with intent to defeat the judgment of Yates. In giving judgment on a demurrer to the declaration, the court said: “It is obvious, from the statement of the plaintiff's case in the declaration, the truth of which is admitted by the dem urrer, that he has sustained damage by the act of the defendant which, he alleges, was done fraudulently and with intent to injure him. It is the pride of the common law that, whenever it recognizes or creates a private right, it gives a remedy for the willful violation of it. It is a sound principle, that where the fraudulent misconduct of a party occasions injury to the private rights of another, he shall be responsible in damages for the same, and such is the case presented by the pleadings in this cause.” Penrod v. Mitchell, 8 Serg. & R. 522, was an action on the case in the nature of a writ of conspiracy for fraudulently withdrawing the goods of the defendant, in an execution, from the reach of the plaintiff. It was not questioned that the action would lie. The court held that the measure of damages was the value of the goods thus withdrawn, and not the amount of the judgment on which the execution was issued. In Mott v. Danforth, 6 Watts, 304, it was held that a creditor, without judgment or execution, and even before his debt was due, might sue parties at law who conspire to defeat his right of collection by fraudulently concealing and converting the debtor's goods. See, also, to the same effect, Kelsey v. Murphy, 26 Pa. St. 78. And see Meredith v. Johns, 1 Hen. & M. 584. The three cases last cited extend the rule further than the exigency of the present case requires, and further than this court has been disposed to go. These authorities establish the right of a judgment creditor to his action against rescuers of the person or goods of the debtor, seized by the sheriff to satisfy the judgment, or against one who prevents the seizure of the debtor's goods on execution; and the principle on which they rest is directly in the face of the contention of the defendants in error, that the plaintiff has no legal interest in the taxes to be collected to pay bis judgment, and has sustained no legal damages by the alleged acts of the defendants. We think they support the action in the present case.
Of the authorities cited by the counsel for the defendant in error in support of the demurrer, the principal case is Adler v. Fenton, 24 How. 408, where it was held that an action would not lie by a creditor, whose debt was not yet due, against his debtors and two others for a conspiracy carried into effect to enable the debtors fraudulently to dispose of their property, so as to hinder and defeat the creditor in the collection of his debt. Mr. Justice CAMPBELL, who delivered the opinion, put the decision of the court on the ground that
to sustain the action it must be shown not only that there was a conspiracy, but that there were tortious acts in furtherance of it and consequent damage: that Adler & Schiff, the judgment debtors, were the lawful owners of the property, and had the legal right to use and enjoy or sell it at their pleasure, and the plaintiffs, being general creditors, had no interest in or lien upon it. There was, therefore, no wrong of which the plaintiffs could complain.
In the other cases cited by the defendants, the plaintiff was merely a general creditor, and had no judgment, attachment, or lien, the enforcement of which was obstructed by the defendant, or the cases were otherwise inappli. cable to the question in hand. In the present case there was a conspiracy, tortious acts in furtherance of it, and consequent damage to the plaintiff. The property seized by the collector was in the custody of the law. The tax. payers, for whose unpaid taxes it had been seized, had no longer any right to its possession or use, and could not sell or otherwise dispose of it. It was devoted by the law to be sold to raise a fund to pay the plaintiff's judgment. The plaintiff had, therefore, an interest, which the law gave him, in the property and its sale, and suffered a direct damage from the alleged acts of the defendants by which a sale was prevented. The plaintiff, according to the averments of his petition, had recovered his judgment against the county; and he had obtained his mandamus to the county court directing it to levy and cause to be collected a special tax to pay the judgment. The collector of the county, in obedience to the orders of the county court, which were themselves in obedience to the mandamus of the circuit court, was proceeding to collect the tax, and had levied on property to that end, and was about to sell it when the threats and hostile demonstrations of the defendants defeated the sale, and the petition averred the defendants continued to overawe and intimidate the tax-payers of the county, so that they did not pay the tax, and the collector had not been able, by reason thereof, to collect the tax.
The plaintiff cannot sue the collector; for he has done his duty, and no suit lies against him. Unless the plaintiff has a cause of action against the dofendants, he is without remedy. To hold that the facts of this case do not give a cause of action against them would be to decide that a citizen might be subjected to a willful and malicious injury at the hands of private persons without redress; that an organized band of conspirators could, without subjecting themselves to any liability, fraudulently and maliciously obstruct and defeat the process of the courts, issued for the satisfaction of the judgment of a private suitor, and thus render the judgment nugatory and worthless. Such a conclusion would be contrary to the principles of the common law and of right and justice. * It is no answer to the case made by the petition to say, as the defendant, by his counsel, does, that the judgment of the plaintiff is still in force and bearing interest, and the liability of the county still remains undisturbed. What is a judgment worth that cannot be enforced? The gravamen of the plaintiff's complaint is that the defendants have obstructed, and continue to obstruct, the collection of his judgment, and he avers that he has been damaged thereby to the amount of his judgment and interest; in other words, that by reason of the unlawful and malicious conduct of the defendants, his judgment has been rendered worthless. To reply to this that the judgment still remains in force on the records of the court is an inadequate answer to the plaintiff's cause of action.
It follows from the views we have expressed that the circuit court erred in sustaining the demurrer to the petition. Its judgment must therefore be
1 Lamb v. Stone, 11 Pick. 527; Wellington v. Small, 3 Cush. 146 ; Smith v. Blake, 1 Day, 258; Burnet v. Davidson, 10 Ired. Law, 94; Green v. Kimble, 6 Blackf. 552; Austin v. Barrows, 41 Conn. 287; Cowles v. Day, 30 Cona. 410; Moody v. Burton, 27 Me. 427; and Bradley v. Fuller, 118 Mass. 239.
roversed, and the cause remanded for further proceedings in conformity with this opinion; and it is so ordered.
MILLER and FIELD, JJ., dissented.
(113 U. S. 179)
(January 6, 1885.) 1. LOUISIANA PURCHASE-TREATY"PROPERTY."
The term “property,” in the treaty by which the United States acquired Louisiana, comprehends every species of title, inchoate or complete, legal or equitable,
and embraces rights which lie in contract, executory as well as executed. 2. SAVE-FRENCH AND SPANISH TREATY-TITLES IN MISSOURI-MORTGAGE.
* The incomplete title acquired from the Spanish government, prior to the treaty of St. Ildefonso bet ween Spain and France, to lands in the territory now embraced within the state of Missouri, was such a property interest as could be transferred
by mortgage or reached by judicial process. 8. SAME-Act or CONGRESS OF FEBRUARY 14, 1874.
Congress intended by the act of February 14, 1874, (18 St. 16,) entitled "An act to confirm certain titles in the state of Missouri,” to recognize the claim of Austin arising from the Spanish concession, survey, and grant recited in its preamble, and to assure those who were in possession, by contract or by operation of law, and, therefore, assignees of Austin, that they would not be disturbed by any assertion
of claim upon the part of the United States. 4. RES ADJUDICATA-DECREE IN EQUITY-COLLATERAL ATTACK.
Questions involved in the determination of a suit in equity are not open to reexamination, in any collateral proceeding between the sanie parties or their privies, if the court rendering the decree had jurisdiction of the subject matter and of the parties. In Error to the Circuit Court of the United States for the Eastern District of Missouri.
This action, in form ejectment, involves the title to an undivided half of a tract of land in the county of Washington, state of Missouri, containing 640 acres, part of a larger tract containing 7,153 arpents, or 6,085 acres, known as the Mine a Breton survey, or as United States survey numbered 430, made in the name of Moses Austin, and dated August 14 and 15, 1817. In conformity with the instructions of the court, the jury returned a verdict for the defendants.
The plaintiffs in error, who were plaintiffs below, introduced in evidence a certified copy of the foregoing survey; also a certified copy of a recorded deed of February 15, 1820, by Moses Austin and wife, whereby the grantors bargained, sold, and conveyed to James Bryan, Levi Pettibone, and Rufus Pettibone, as tenants in common,-one undivided half to Bryan, and an un. divided fourth each to the other grantees,—“the whole of that certain tract of land heretofore granted to the said Moses Austin by the Spanish government, and confirmed to him by the government of the United States, containing 7,160 arpents, and being one league square, situated at and near the Mine a Breton, in the county of Washington, and territory aforesaid, [Missouri,] being the only concession from the Spanish government to the said Moses Austin,” etc.; excepting from such conveyance several parcels, aggregating about 2,500 arpents, and which the grantor bad previously conveyed to other per sons. The deed also provided that the grantor would not warrant and defend the premises against a judgment for about $14,000, which the Bank of St. Louis had obtained in the superior court of the territory against him, for which debt that bank held, in addition, a mortgage on part of the premises conveyed; nor against three judgments in favor of Gamble's estate for about $1,029; nor against a judgment in favor of Alexander McNair, for about $450.
They also read in evidence an act of congress, approved February 14, 187d, as follows:
“CHAP. 29. An act to confirm certain land titles in the state of Missouri.
"Whereas, the baron of Carondelet, governor general of the territory of Louisiana, did, on the fifteenth day of March, anno Domini seventeen hundred and ninety-seven, instruct Zenon Trudeau, lieutenant governor of said territory, to place Moses Austin in possession of a league square of land at Mine a Breton, in said territory; and
“Whereas, the said Moses Austin did, in the year anno Domini seventeen hundred and ninety-eight, take possession of the said land by moving upon it with his family, and did improve the same by building dwelling-house, blacksmith shop, furnace, and other imp ements; and
“Whereas, the said lieutenant governor did, on the fourteenth day of January, seventeen hundred and ninety-nine, order Antone Lulard, surveyor in said territory, to survey the said land, and put the said Austin legally in possession of the same, which survey, numbered fifty-two, containing seven thousand one hundred and fifty-three arpents, and three and two-thirds feet, was executed by said Antone Lulard, and a certificate of the same filed by him in November, anno Domini eighteen hundred; and
"Whereas, Don John Ventura Morales, tben governor at New Orleans, did, in the year of our Lord eighteen hundred and two, in the name of the king of Spain, grant to the said Moses Austin the land so surveyed and located: Therefore,
“Be it enacted by the Senate and House of Representatives of the United States of America, in congress assembled, that the United States hereby release whatever title they have to said lands now numbered four hundred and thirty on the plat in the surveyor general's office, and in townships thirtyseven and thirty-eight, range two east, in the county of Washington and state of Missouri, containing seven thousand one hundred and fifty-three and thirty-two one-hundredths arpents (six thousand eighty-five and twenty-nine one-hundredths acres,) to the heirs, legal representatives, or assigns of said Moses Austin, according to their respective interests therein: provided, however, that this act shall not affect nor impair the title which any settler or other person may have acquired adverse to the title of said Moses Austin to any portion of said land.” 18 St. 16.
They also proved that James Bryan, one of the grantees in the deed of February 15, 1820, intermarried in 1813 with Emily M. Austin, a daughter of Moses Austin. There were five children of that marriage, one of whom, Stephen, was born July 16, 1814, and died in the succeeding month. Three others, the present plaintiffs, were born, respectively, December 14, 1815, September 25, 1817, and January 12, 1821; while the remaining one, Elizabeth, was born in 1822, and died in 1833. Moses Austin died in 1821 and James Bryan in 1822. The widow of the latter intermarried in 1824 with James F. Perry, of which marriage there were five children, two of whom died in infancy during the life-time of their parents, two others died without having been married, while the remaining one died in 1875, leaving several children. The surviving children of these two marriages, and their descend. ants, are the only living
descendants of Moses Austin. Upon the foregoing evidence the plaintiffs rested their case.
The defendants offered in evidence a duly certified copy of the order of Baron de Carondelet, dated March 15, 1797, to Zenon Trudeau. This paper, not being found in the files of the court, could not be made a part of the will of exceptions; but its import is shown by the preamble of the foregoing act of congress. They also read in evidence the following documents: (1) A copy, certified under the hand and seal of the register of lands for the state of