Hart v. Bier

• Decision Date: 30 May 1896
• Citation: 74 F. 592
• Parties: HART v. BIER et al.
• Court: U.S. District Court — Eastern District of Louisiana

74 F. 592

HART v. BIER et al.

United States Circuit Court, E.D. Louisiana.

May 30, 1896

Rogers & Dodds, for complainant.

Lazarus Moore & Luce, for defendants.

BEFORE PARDEE, Circuit Judge, and PARLANGE, District Judge.

PER CURIAM.

The complainant, Judah Hart, a citizen and resident of the city and state of New York, brought his bill against the defendant Henry Bier and the firm of Lazarus, Moore & Luce, attorneys and therein alleged that on or about the 22d day of November 1893, he was the owner of 124 first mortgage bonds of the Municipal Ice Company, of the face value of $1,000 each that, subsequent to said date, the complainant executed and delivered, through his agent, Samuel J. Hart, to him (Bier) his (complainant's) four certain promissory notes, of the sum of $25,000 each, due and payable at different dates in the year 1894; that said notes were given without any consideration; that said Bier received from complainant, as collateral security for the payment of said notes, the 124 bonds hereinbefore described, and without any consideration therefor; and that although the said Henry Bier has long since, by receipt in writing, acknowledged the payment and discharge of complainant's obligations, as evidenced by the said four notes, and although the said bonds held as collaterals or in pledge as aforesaid are the sole property of the complainant, and should have been returned to his possession by the said Bier, and the said Bier not only refuses to disclose the present whereabouts of said bonds, or who is now in possession of the same. The bill goes on to show that the defendant Bier was under conviction in the criminal court of the parish of Orleans on the charge of perjury; that the defendants Lazarus, Moore & Luce have been employed to represent the said Bier in an effort to secure a nolle prosequi; that Lazarus, Moore & Luce had given certain advice to the defendant Bier by which he refused to disclose the whereabouts of the said bonds; that the complainant had reason to believe that Lazarus, Moore & Luce were possessed of them, or knew of their location; that the bonds were negotiable, and the complainant feared that they would be removed from the jurisdiction of the court, or otherwise lost to him; and that he was without a remedy except in equity. Complainant prayed for an injunction, a receiver, and a final decree awarding to him the possession of the bonds described.

Upon a preliminary hearing, Lazarus, Moore & Luce having entered a disclaimer, and as to them the suit having been dismissed, a receiver was appointed by consent, and the bonds were thus taken into the direct custody of the court. After preliminary skirmishing, the defendant Henry Bier filed his answer to the bill, the material parts of which are as follows: That the bonds in question came into his possession from the agent of the complainant, to secure the apparent indebtedness evidenced by the notes described; that the agent of the complainant was under the direction of one Maurice J. Hart; that the execution of said notes and delivery of said bonds were, as respondent is advised, informed, and believes, with the knowledge of said Judah Hart, who acted through his agent, Samuel J. Hart, and with full knowledge of the matters and things and the objects and purposes of protecting said Maurice J. Hart from civil and criminal liability in transactions hereinafter recited; that, for reasons set forth, the said bonds are the property of Maurice J. Hart, although the name of Judah Hart was employed in the transaction with the full knowledge, consent, and concurrence of the said Judah Hart, by his said agent, said Samuel J. Hart; and that the bonds in question came into the possession of respondent under the following circumstances, which we give in extenso:

'That there was exposed for sale by the common council of the city of New Orleans the extended franchise for fifty years of the New Orleans City and Lake Railroad; that your respondent was a broker, and, as such, dealt in the securities of said corporation; that said Maurice J. Hart and others interested with him were large operators in the city of New Orleans; that, as such, the said Maurice J. Hart employed respondent to purchase, at the public bidding, the said extended franchise, and agreed to pay respondent, for his services in acquiring the same, the sum of fifteen thousand dollars; that acting under his said employment, and for the compensation aforesaid, your respondent offered to the city of New Orleans the sum of seven hundred thousand dollars for the said extended franchise; that said franchise was adjudicated to respondent for the said sum, and was subsequently confirmed by the common council of the city of New Orleans, and the title to said franchise, for the term aforesaid, awarded to respondent; that, upon its face, the said transaction had all the appearance of being a purchase by respondent, when, in fact and in truth, he was simply a broker or agent in the acquisition thereof; that subsequently, to wit, in the month of --, 1893, one S.D. Peters, a citizen and taxpayer of New Orleans, instituted proceedings in the civil district court against the city of New Orleans, applying for an injunction against the confirmation of the adjudication to respondent of the said franchise; that said proceeding was allotted to Division C of said court; and that an intervention was filed therein in the name of respondent-- all of which will more fully and at large appear by reference to said suit, No. -- on the docket of the civil district court, to which reference is herein made, and which is to be treated as though set forth in extenso in this answer; that, upon the preliminary trial of said

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