FEmiJRAL

REI'ORTER, vol. 48.

'l1.

LEwIS

SHAINWALD.

C07trt, D. California. November 25, 1881.)
1. J'URISDIOTJON OJ' CmOUIT COURTS-EQUITY RULE 90.

Equity rule 90, providing that, where the rules prescribed by the supreme or clrQuit courts do not apply, the practice oUhe circuit courts shall be regulated by the present practlSJe of the high court of chancery of England, etc., affects the practice only of the circuit courts, and does not apply in determining questions of Jurisdiction.

2. .

8;...NB

By virtue of the jurisdiction attaching to courts of equity in cases of fraud, and independE\Il.t of anr statute giving the rigl!t to maintain a creditors' bill, a federal court may entertam a bill alleging the return of an execution nulla bonn, and that the debtor" pending the suit, has converted part of his property into cash, and is engaged ill (l!sposing of. and concealing the remaillder, or is about to carry it out of the state,all with the declared intent of so "fixing" his property that it cannot . be seizedtosatisty judgment. .
OF FEDERAIJ DISTRICT COURTS·

CREDITORS' BILL-J"URISDJOTION OF FEDERAL COURTS-FRAUD.

4l

. ·Under: U. S. § 716, tqat the supreme court and the circuit a!1d district courts shall have power to Issue writs of scire jacf.as, 'Qnd "all otber wrIts ; not'lilpecilically provided for by statute,which may be necessary for the exercise of thei\, and agl'E!eable to the usages and Pl'inciples of law, " the distri¢t courts have power to issue writs of ne exeat repub/Ma. The ,ofne exeat republica Is not a mere provisional remedY,in the sense that It can onlybejssued pending the suit, alld mllst expire with the rendition of judgment; ou·tbEi contrary, its issuance may be p\-ovided for in the final decree, and it .; will oontillue in force untiil dissolved by the court, or until thedecree is satisJied.
SAME-'WHENGRANTED. .

Bill to reach property not subject to execution. On apFor former reports see 6 Fed. Rep. 753, 766, 8 Fed. Rep. 878. , J. D. Crittenden, for complainant. Delos Lake, for respondent. Before SAWYER, Circuit Judge.
Heal from the p.istrict court.

In Equity.

·. This isa bill in equity,called by appellant's counsel a "credito,rs' bill," based upon a prior proceeding, in which a decree had been entered in the district court against the respondent, appellant here, for a large sum of money, and execution issueu,upon which a return of nulla bona had been made. It is .by the respondent that, prior to the adoption of the Revised Statutes in the state of New York, no such bill, in the senseshlce used, was known; that a thing as a creditors' bill of the character here set forth was unknown to the court of chancery; and that, therefore, the case is not properly one of equity jurisdiction. Upon this proposition some decif·<ions of the English courts are cited; and it appears that some of the latter decisions overrule some of the former ones upon certain points. In this connection equity rule 90 is cited as having a bearing upon the case, as prescribing that the English chancery practice shall be adopted in cases where our equity rules do not apply. That rule is as follows: "In all Ca'l6S where the rules prescribed by this court or by the circuit court do not apply, the practke of the circuit court shall be regulated by the present practice of the high court of chancery of England, so far as the same may

LEWIS V. SHAINWALD.

493

reasonably be applied consistently with the local circumstances and local convenience of the district where the court is held, not as positive rules, but a8 furnishingjust analogies to regulate the practice." In my judgment, that rwe does not in any way affect the question. The jurisdiction of this court is derived from the constitution and laws of the United States, and these rules are simply rules of practice for regulating the mode of proceeding in the courts. They do not, and could not, properly, either limit or enlarge the jurisdiction of the court. The rule quoted simply regulates the practice in exercising the jurisdiction of the court in those respects wherein the rules adopted do not apply; but the practiee of the high court of chancery is to be applied, not as controlling, but simply as furnishing just analogies to regulate the practice. . I am satisfied that creditors' bills of some kind's, whether of the preof t-Pat now under consideration or not, were entertained cise chancery courts and intbe courts of chancery in both by the the lleveral states, particularly in the courts of New York, prior to the adop.tion of the Revised Statutes of the latter state. The creditors' bills which were recognized previous to that time were, perhaps, in different form thattpen adopted; but there undoubtedly were instances of billsmall)tainedby creditors to subject the assets of debtors to the payme'nt of their debts. The discussions upon the related mainly to the character of the assets and the circumstances of the particular case. In thecase of Hadd&n v.Spader, 20 Johns. 554, before the court oferr0rs, and in which the decision of Chancellor a creditors' bill is, affirmed, I think the rule is established that certain assets can be reached and appropriated by a bill filed by a creditor; and several prior recognized the same principle. In the subsequent case of Donovan v. Finn, Ropk. Ch. 59, there was suggestt.d some limitation. That case, however, did not overrulei or purport to overrule, as it could not, the decision of thecoutt of errOrs in the case last referred to. Indeed, the two decisions, as to the real point involved and decided, do not conflict. The latter case was one into which the element of fralld, either actual or constructive, did not enter. It was simply 8 case where a legacy had been left to a debtor, which was in the hands of an executor, and a creditors' bill was filed to reach that legacy. There was no collusion or fraud, or voluntary conveyance, or other subject-matter of The debt was treateq as an honest debt, equity jurisdiction in the and the ehancellor held that it could not properly be reached by a creditors' He recognizes, however, the propriety of filing such bills in cases of fraud. Frands and trustE' are in themselves subjects of equity jurisdiction. Indeed, matters of fraud and trusts are among the most extensive heads of equity jurisdiction. Wherever there is fraud in a case which cannot be fUlly remedied at law, equity intervenes and covers the fraud; and the.fact that a creditor is injured by a fraudulent concealment or withholding of property brings him ,into such relations to the fraudulellt transaction that he may, on thatgroulld, invoke the equitable jurisdiction of a court of equity,havethe fraud uncovered,

il94

FEDERAL, REPORTER

48.

and take hoJd aftbe funds,:or the property fraudulentlyconnealed and withheld from him. He cornell within the jurisdiction of the court, not merely because he is a creditor, not because his bill is a creditors' bill, but because he presents a ,case in which he sets forth matters of fraud, or trust; and equityentertainl3 his bill simply because he stands in such It. relation to the, that he is entitled to have the fmud uncovel'ed, or a and enforced·. This principle is recognized, in the case last referred to. I read from the decision as repQrteq in 14 Amer. Dec. 533. After stating that "it is appa,rent that this cased,oesnot belong to any general head of equitable as fraud, trusts, accidents, mistakes, accounts, or the specific performance of qontracts;" that "there is neither fraud nor . trust nor accident, nor any other ingredient of equitable jurisdiction,"the chancellor proceeds to say,: lIThe English cases cited proceedE'd, 8S I conceive, not upon the ground of silbjecting the credits of'the jUdgmerit debtor to the payment of his debts, but upon Borne ground of equitable jurisdiction, as fraud or trust, eXisting in each case. · · .. The case of Bflyard v. Hoffman, 4 Johns. Cll. 450, was not theicase of a judgment creditor; hut of the suit was to annul an assi,gllwent in, trust, a debtor withollt consideration. The asslgnoi"was Insolvent when the, assignment was made. That fact not being then knOl"n, nUllctnal fraud WaS intendE'd: bnt the assignment had all the opel'ation'of fraud against the crE'diturs of the insolvE'nt delJtor, and for th"'se reasoltathe rause was of equitable jllrisdidion. .. · · The case of Hadden v. Spa.der. 5 Jolln(l. 20 Johns. 554, was also a case of an assignment by an, insolvent of property upon various trusts. It was clearly case of trust; the assignmE'nt was charged to have bpen made by fraud, and, tbo'lgh the answers deniell that fraud was intended, the facts exhibited:a cl\se of fraud. The effect of the aSSignment, if it hail prevailed. would have been to withdraw and Hcrpen from execution the pl'Operty of the debtor. 'l1heassignment was held to be void, and thp jndgment creditor had relief.:1illese are the principal:eases whieh have been adjudgt'd in this court, and in A\lllf, tbem some acknowledged ground, of eqUitable jUl'lsdicliun exthey were to st't aside con veyances, wl,I'ch prevented tbe seizurElof property by the Sheriff, and the convej"ances ha\ e been consid· ered frauds, E-i til er actual orcouiltructive. .. '. .. In giVing relief in such cases, this'court' does not proceed upon the idea of giving E'xecution against a species of property whichlB exempt from execution at law:; but it acts upon some of the,J;ilost allcit'nt grounds of its jurisdiction, wbichenableit to give relief incases, lind trullt"E'ithel' to ajudgmentcredUor 01' to any other person rna)" bt' destroyed urimpeded by sllch,a cause. .. · ... !fully concur witbJudge PLATT In his opinion given in the case of Hadden v. Spader, and in his of the powers and jurisdiction of this 'court, in respect' to the rights andremediillJ of creditors. The case now to be dt'clded has not, one featuloe of equitable jurisdictioll'·. In iUllere is neithf'r fraud nor trust nllrcon'of any in_llrruptlon ufthe !'ffect of auexecutlon or the due, ·. But when ,equity has jurisdictilln,by reason ot' of t,bEldebtor's property. made in of the credItor, at'Jdwben, iJj sucb.a the shl'riff of the county in which the property is situated !eti:lt<ns'flpon the exem..tion that nO iproPerty is found, the return is :important to show thatithefl'auduhint disposltiOli ·has had effect by .preventing the service of the, exet·ution. By the existiJlg law, the propof a ng of inaction. held by him without fraud,. is'

"'i .,..

LEWIS t1. SHAmw'Aw.

Dot 1mbject to, the effect of any execution issued against his property; and, while a cO.lJrt of law does not reach these things by its execution, a court of fortJ:le purpose of satisfying either equity does not reach them :by law or decrees equity. All conveyances made to defraud creditors are void, both i'lla",and equity·. When a fraud appears toacourt of law, the conveyance is there adjudged void. When such afraild is presentedto this court, it is of eqUitable jurisdiction; and the property of the .debtor. fraudulently transferred, is sllbjectto the satisfa('tion of his fllovQr()f. a creditor complaining of the fraud, Does an insolvent debtor transfer his PIIQperty to another person, in trust fOr himself, or in such a mimner as to defeat the elIe,ct pf a j udgment an execution ? This is the fraq nent case·.... It is' a case of both fraud and trust" and it is of equitable jurisdiction. It was the C8seof McDel'mutt v. St1'ong. 4 Johns. eh. and of Hadden v. Sp(Jller. supra. In all such cases this court va«ates the fraud, sets aside the .(l()nveyance in trust, and, acting both upon the debtor and bis trustee, it docs completejusticeto, the creditor. Thus the jurisdiction of this court reaches, and .reaches effectually. those case!! of fraudulent conveyances and 8881g.oments in trust whkh form the great and most vexatious impediment in the (Jourseofjustice between creditor and Bills for discovery, whe.re no TeUef is sought. also afford importan't aid to creditors against their uebtors. But this court has nb power to cause stocks, credits. and tights of action, held by, a debtor, without fraud,to be 'sold or converted Into money, to be to the creditor, or to be applied to the payment Of debts. It

the other cases refem:;dto: In the latter case it is the element of fraud

this is the

this case oiDoncwan v. Flinn an-a

whichblings within the jurisdiction; and a creditor, as well as any other party who is injured by the fraQd, is able to maintain a bill to have the fraudulent act vacated, and .to be relieved from the conse-quences ofit. In a note appended to the report of the case last cited it is said:' . "It is doubtful. where there has been no legislation upon the subject, whether. i:o. the absence of fraud or any other well-known ground for supthe exercise of Its JUrisdiction·. equity will assist a creditor to reach those assetS of his debtor which under no circumstances could have been ject to execution at law, It . A large l'luwber of cases are then cited, and it is. then added: "What stocks, choses in action. and other property which were Dot subject to execution at common law, can now, in:the absence of any statute on the subject, be reachen by a creditors' bill, must still be regarded as .unsettled. By such bills, creditors have in several ins"tances succel'ded in' obout of the interest of an heir or distributee while still in · the hands of an executor or adr;ninistrator." Then follows another citation of numerous authorities, which lliav8 -not examined, as I did not consider it necessary to this decision. Inf.thiscase the 'charge of fraud is set up in the bill,in whichjt is alleged that the respondent has made fraud ulent transfers of his property; has converted portions of it into money, and secreted the proceeds; that otPer. Property, to the 111110unt of llJany thousands of dollars, has been ,con.(}ealedl ;:(ror:p. the complainant, in order to, pl'event himfrom securing it by .exeootionissued under the decree of the court; and that he isabaut to

.
,(jllgry;

BEppJ;tTER,

vol. 48·

and qther beyond the jurisdiction: of the and declared purpose of all these acts being to deflraud the'Mmplainant, and render it impossible for hiln to realize any portion'of'theamount to which heisentitled under the decree. By his demurrer admits theseavermetits pf the bill, and takes his stand upon:the point that the court is without jurisdiction to entertain or determine a cause of the character of that which is Bet forth in the bill. The case of Mou,niford v. Taylor, 6 Ves. 787, which has been cited here, was a case similar to the one at bar. The bill stated that the judgments were obtained at a time when "the defendant WRB, ever .' since has been, and now is, seised forhia own use of freehold es4ttes for his life, ,oredme greater estate; that tlie plaintiff sued out writs of elegit upon ,these judgments; but neither of them has been able to discover where .the estateB of the defendant are situate," and does not know' what they are or where they are. 'But the complainant charges that in or about 'the year '1795, some years' before, tpedefendant, upon taking a seat in the of commons, took the oaq"a,s to his having the requisite amount of property to qualify to act as,1j. merpber of that body; and that ,·'he:alsQ. delivered to the clerk of the house of commons, or some other officer of the house, a schedule, containing the particulars of the estate, ,whereby he made out his qualifications; and the plaintiffs are unable to obtain tbesaid schedille." They also state that if, as he pretends, he has since conveyed the estates of which his qualification was composed, "such'conveyance was without considl3ration, and in trust,for himself;" and the bill prayed for a discovery. . The defendant denlurred as to the main sta.tements recited ih the bill, Mr. Mansfield and MI;', Pemberton in his behalf that the object of the bill was idle curiosity j that no creditor had a right to make these inquiries. During the argument the lord chancellor, throwing out suggestions, says: "It seems admitted that they have' a, right to come here for a discovery where the property is, in order to their judgmelltsl\vailable. That, certainly, will not affect real 'property had before the jUdgment was obtained, if no longer under such circumstances that the creditor can follow it; but it does not follow that hecauDot, merllI.Y because it dOellDot remain in. the may be many cases which he might· ownership of the debtor, 'f017 .Thtlceis a charge hI this bilI,--that if there was any conveyance it ,was without consideration." '

.

is no positive averment in the bill that there was a conveyance made by the defendantjbut it alleges that, if there was a conveyance, it was made without consideration; and that, the lord chancellor says,' is a material charge. He then proceeds to say: , "First, in the common case, will a bill fora discovery lie,with all this paxtjctdarity. to know every estate he has sold and disposed of for three years? If sQ,he :maygo back forty years." : He then remarks: "There is diBiculty upon the objection that t));s would extend to an estate parted withoutconsideralioll; and I am not qUite clear that such,a bill must not allege that ata given time the defendant was seised

LEWIS.. V. SHAINWALD.

497

of given lands, (not simply suggesting, as a fishing bill, that at some time or other he bad .some land;) and that he has conveyed these lands away fraudulently, to. Pl,lt them out of the. reach of his creditor."

These remarks quoted were made by Lord ELDON during the argument; and he took the case under consideration, and on the 20th of March he overruled the demurrer, saying:
"The bill is met by a defense. admitting that it is a proper bill, and the answer does not negative all that is material to be answered. With respect to the the qualification, if be had said the property he gave into the bouse of commons was not liable to execution, the court ought to be content with that, 'without requiring from him more particularity. But the bill charges tliattbe defendant delivered in a schedule of the particulars of the estates, whereby he made out his qualification, and that he has conveyed them as evidence tbathe has landS liable to execution, as "hey may Qeunquestionably. Upon that I think he must answer."

In this case of Mountford v. Taylor, Lord Chancellor ELDON held that the (;lonveyance of his estate by the defendant without consideration :was fraud; and that a creditor, as well as anybody else, might avail ;himselfof it. In their bill the complainants in the case declare that 1hey do. not know the character of defendant's estates, nor where they are situated; but that he had, upon taking his seat as a member of the house of delivered to the clerk or other officer a verified schedule .in which, his..estate was set forth, which schedule the plaintiffs are unable to obtain. All of the allegations oithe bill with respect to the defendant's property arEi argumentative. The complainants further alleged, howeve,r, that the defendarit had conveyed his estate without consideration, and in trust to himself, and they were unable to find it. These allegations of this creditors' bill are as indefinite as could possibly be; yet the lordphancellor sustains the bill, and his decision in that case, as well as the decisions in the cases of Hadden v. Spader and Donovan v. Finn, referred to, and numerous other cases cited in those decisions, sustain the ground that, where the case presented is one of equitable jurisdiction, a creditor, as well as anybody else, is entitled to the aid of and redress from the court· . In ,the, bill in the case at bar it is alleged that the respcndent has converted a certain portion of his property, to the amount of $20,000, into cash, which he has concealed, with the intention of carrying it out of the United States; that he has other property to the amount of$90,000,which he has so arranged and concealed that he will be enabled to take it out of the United States; and that his express and declared purpose in so . concealing and arranging his property, and in carrying out his intention of taking it away with him, is to fraudulently evade this complainant's execution. This bill has been designotedby the appellant's counsel as "fishing bill." Whatis meant by this term is indicated by Lord ELDON in the cited case of Mountford v. %ylor, in the previously quoted language, "not simply as a fishing bill, that at some time or other he had some land," which was a remark thrown out during the argument. Such a bill is one in which there are no allegations oia definite or .posiv.481<'.no.7-32

498

FEDERAL' REPORTER,

vol. 48.

live to 'the haVing at any tirneiowned, property which d&Uldhave beens.ulUeett()'e'ltecution upon thepla:intiff's claim, ry or one asking for a discov7 as to matters which cannoHn hny 'way affect the tights of the parties. 'It is evident, from the wayltlfuses the expression, that: it is to cases Of that class that Lord ELDON'refers, In that case it is alleged in the bill that,at certain time; the 'defendant did have property, whi(',h property had since conveyed, if conveyed at all,witnbllt consideration, in'trust' for himself; although the comphiinallts unable 'to: state where,the property oft}le defendant is, bill a fishing blll, :but overrules the lord pniulclmor does not the demurrer,and corn.pels the defendant to answer with refereQce to that particular, pl!operty. The natureof a fitthing bill is defined by (then a judge of the court of errors of New York) in 'the case of 'Newkirk v. Willett, 2 Johns. Cas. 413, in which he says:, does not, statesuftlcient equity to entitle the appellants to a discovery. It, states, geneh\Uy. that the respondent had made a demand upon one of the appellants, 88: executrix of, Peter Mh uyler, deceased, and that. 8S he did ,any youch!3r. she ,had fl'fused to pay him. "It states, furwl\ichshere,fus,ed;andthat linallyhe ther. that he had brought suit against appe}latits in the suprt'mecourt. The bill nothing of the d,emand of their own states. fur'ther.that ,the ap'pellants knowledge, but that they 'believett unjust. bt'cause the 'respondent took no measures toljquidate' and settle it in the Iife-timeofl!eterScbuyler. and does not n()W,:proc),llceany v.ouchers, and has been inconsistent in what he has to said as to the nature and extent of his demand. ,This is the of the bill. amoulltst,o this: · The respomlent has sued us at law, and we do not know for what, and therefore weask for a discovery although we' h\lYe reason to conclude be has sil'edusupon some grouniHess:,pratense. '!::iu<lha bill shows no equity j no right toadiscovery. It sets forti) no 'matter material to a defense at law. and wh1chcanbe proven, unless by"he,confession of the opposite. party. It is. to use .Lord Chancellor a ·fishing bill.' seeking. generally, a discovery of the demands. without stating any right to enof title them 'to it. Such a bill 'may be exhibited by any executor or administraby any defendant, who is not already tn possession of the tor. and. plaintiff's proofs. But the court of cbancery has wisely refused to sustain ,bills .for discovery in such latitude; and unless the party calling for a eove,rywiR state some matter <;If l1laterialto his defense, or which he wishestosQbstantlate, by the of the defendant, the,court will not
II .

It is with this same 'View; as 1 understand it, that Lord ELDON, in the case to ,a <;1iscovery of matters running back 40 yearp-,-matters which cannot, by any'possibility, a!fect the rights of the, parties,-and a bill asking for such a discovery is a fisbing bill. But as to a bill for' a' of"tnatters of such character and date that they can be iromediatelyconnected ,vith the cotnplainant's cause, and which matters he could not discover or ascertain without the aid· of the court, the bill also alleging that,sinoe the accruing of complainant's nf!;ht, the respondent 'bas: conveyed away his estates, without consider. ation, and :jn,trl1st' forhimself,sucha'bill is not a fishing bill, because

LEWIS .,. SHA,INWALD.

499

it sets forth matters material to the cause. A conveyance of the character alleged would be a fraud in law,llnd the complainant is entitled to a discovery. In the present case, the charge of fraud is direct. In his bill, after setting forth that he has recovered juogment as against the respondent for a large sum of money; that execution has issued, and a return of nulla bonq. has been madethereon,-the complainant avers that a short time before the rendition of judgment, and during the pendency of the action, the rellpondent disposed of and converted into cash real property to the amount of $20,000; that since the rendition of the judgment he has secretly tr!lnsferred a large part of his property, and has secreted the remainder; that he has property to the value of $90,000, which the complainant has been unable to reach by execution; that he intends and is about to convert into cash all his property, and to depart, taking it with him, beyond the jurisdiction of the court; and that all these acts and steps have been committed, taken, and proposed' with the declared purpose of so "fixing" his property that it cannot be seized to satisfy the judgment,llnd to defraud· the complainant of the money due under it. Those matters are material. Here is set forth the fraud which the com· plainant is seeking to unveil; and, if the alleged state of facts exists, he is entitled to apply the funds of the respondent, wherever they are, to the satisfaction of the judgment. The fact that the complainant.is unable to describe and locate the property and funds of the respondent ought not to make it impossible to bring his cause within the jurisdiotionof a court of equity, for under existiug laws it is possible for a party to hold property in such a manner that only by a discovery can another be enabled to locate or describe it. If, in a cuse of this kind, a complainant were not entitled to a discovery, it would be possible for a debtor to conceal his property, or to ·convert it into money and put it in his pocket, and so evade a judgment. The arm of the court of equity would certainly be very short if it could not reach the reepondent in such a case, although the. c9mplainllnt would be unable to describe the property or identify the money. In the nature of things it is impossible to identity the money. But if this respondent has in his possession the 820,000 which be is allt'ged to have received 10r that portion of his property which he has sold, and other property as well, he is bound .to discover it, and yield it up, that it may be applied to tbe satisfaction of the judgment. If, as is averred in the bill, the respondent in this case has converted a portion of his property into money. and intends to carry that and his other property beyond tbe jurisdiction of the court, then this bill is sufficient. Another point is made ill this case, with reference to the issuinf1; of a writ ofne exeat republica. Respondent's counsel contends that the court has erred in directing in its decree that the writ should issue; that such a writ is only a provisional remedy, the right to which expires upon tbe determination of the s.uit ano tM entry of judgment. 'fhe very object of this provisional remedy is to secure the presence of the party ip

500

FEDERAL REPORTER,

vol. 48.

In cases where they might be granted by the supreme court, and by any cuit justice or circuit judge in cases whenl they might be granted by the circuit court of which he Is jUdge. But no writ of ne exeat shall be granted unless. * lie, '" satisfactory proof is made to the ,court or j udgt' granting the same that the defendant designs to depart from the United states. " . " ,, . '

order that the judgment may be executed,-in order that h'e may not be able to evade it. This writ is not discharged any more than an attachment is discharged upon the entry of judgment. A writ of attachment is discharged upon the satisfaction of the judgment or upon giving security; and the writ of 'Yle exeat should continue in force until the judgment is satisfied, or until the writ is dissolved, or proper security given. Mitchel v. Bunch, 2 Paige, 606; McNamara v. Dwyer, 32 Amer. 631. It is claimed by the respondent's counsel that that portion of the decree which directs that this writ shallisRUe is arbitrary; that no limit is placed upon the length of time it shall continue in force. I presume the court will have power to control that matter. The decree may possibly be too broad in that regard'; and, if counsel desire it, it can be so modified as to obviate any objection upon that ground. That this writ may be issued even after judgment is establif;hed, see Moore v. Hudson,- 6 Madd. 218; Elliot v. Sinclair, Jac. 545; CoUinson v. , 18 Ves. 353; Russell v. Ashby; 5 Ves. 96. According to Daniell's Chancery Practice, and many .authorities,a prayer in the bill for a ne exeat is not necessary. 3 Daniell, Ch. Pi. 1936; Dunhamv.Jackson, 1 Paige, 629; Gibert v. Colt, 14 Amer. Dec. 561, note. It is sufficient if the facts alleged in the bill and established show a proper case for the writ, and it may be grantedin the decree under the prayer for general relief; or the facts may be shOwn, and the writ applied for lipan a petition presented'iri the case either before or after judgmen' ' f decree. The limitation of equity rule 21 only applies where the writ is asked for "pending the suit." "And it is further ordered, adjudged,and decreed that the writ of exeat republica of the United States of America issue out of and under the seal of this court, to restrain the said Harris Lewisfroi'l1 departinfot out of the jurisdiction of this court." That i's the form of that portion of the decree relating to this matter. I think it would have been better, and it certainly would have avoided criticism, if to this had been added, "until thE' sa.tisfaction of the decree or the further order oftbe court." Respondent's counsel cites a casein 2 Wash. C. C. (Gernon v; Boecaline, page 130) to show that a district court has no authority to sue a writ of ne exeat. In that case, however, the writ was issued by the judge, and 110t by the: court. That case arose at a time when the jurisdiction of the district court was limited, and did not cover a case of the character of that now under consideration at all. There is a distinction between the jurlge and thecourt,-adistinction recognized in the Revised Statutes. Section 717 reads: "Writs of' ne exeat IDay be granted by any justice of the supreme court

COURTRIGHT ti. BURNES.

501

By Rev. St. § 716, it is provided that" the supreme court and the circuit and district courts shall have power to issue writs of scire facia8. They shall also have power to issue all· writs not specifically provided for by statute, which may lle necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law." The writ of ne exeat is one of the writs necessary to the exercise of the present jurisdiction of the district court. The jurisdiction of that court has been enlarged since the adoption of these statutes, and since the date of the decision last referred to. In cases of the character of the one at bar, it has now concurrent jurisdiction with the circuit court. The authority of the district court. to issue this writ is therefore unquestionable. The decree of the district court must be affirmed, except that, if the appellant 80 elects, it may be modified in the respect indicated.

CoURTRIGHT 1.1. BURNES.

(Oircuit Court. W. D. Missouri. W. D. May, 1881.)
L

CoMPROMISE-AcTION TO SET ASIDE.

C. took a contract in his own name to build a railroad j the remuneration being certain bonds of the railroad company. thereafter to be issued, and also all funds or property wljich could be obtained as a bonus from people living along the proposed route. B. and several others, however, had certain interests in the profits of the contract, and·C. constituted B. his attorney in fact to manage the construction, ilnd all other matters connected with· the enterprise. After the road had been built, C. pressed B. for an accounting and settlement. which B. delayed, various reasons. Finally, C. constituted an attorney his attorney in fact and with full· powers to obtain a complete settlement. 'fhe. attorney thereupon callen upon R, presented his power of attorney. and the two then made a writing, re.citing the transactions in which B. had been engag-ed, and agreeing to meet at a certain date for a settlement of all these matters. They accordingly did meet; B. accompanied by his attorney,and another person interested in the contract. Some papers in the nature of accounts were presented, but these covered less than balf the transactions in dispute. Propositions and counter-propositions were made for full settlement, and after two days of negotiation a full settlement was effected, the papers executed, and a release in fUll of all claims gl'owing out of tbe trans8Ctionsgiven to B. Held, that tbis was not a tnere accounting of an agent to his principal, in which any mistake or fraud would be a ground fol" opening .the settlement, but was a compromise, in which each yielded Something of what he considered his rights, and hence chancery would not set it aside.
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II.

SAllfE-TENDERING BACK

B. hal'ing made a deed to C. of all his interest in· the lands acquired along the route, as part of the settlement, C. could not jllsintain abUl to set aside the settlement without tendering ,a reconveyance of this property.

In Equity; Bill to set aside settlement, and for an accounting. De Camp, BotBford &: Williams, for complainant. Wate1·s, Stringfellow, Woodson &: Hull, for respondent. MILLER,Justice, (orally.) We have arrived at 8 satisfactory conclusion to us in ·thecase of Millen Courtright v. James N. Burnes, and I will proceed :to anno\Jnce the jlJdgment of the court, and give our reasons for it.