Barrett v. Prince

• Decision Date: 02 January 1906
• Docket Number: 1,186.
• Citation: 143 F. 302
• Parties: BARRETT, Sheriff, v. PRINCE.
• Court: U.S. Court of Appeals — Seventh Circuit

143 F. 302

BARRETT, Sheriff, v. PRINCE.

No. 1,186.

United States Court of Appeals, Seventh Circuit.

January 2, 1906

March 30th, 1905, on his voluntary petition filed February 15th preceding, appellee was adjudged, in the District Court of the Northern District of Illinois, a bankrupt. Between the filing of the petition, and the adjudication, at the suit of one John L. Robson, in the Circuit Court of Cook County appellee was arrested on a capias ad respondendum, and held to bail. Subsequent to the adjudication of bankruptcy, having been surrendered by his bondsmen in the capias suit to the sheriff, the petition of appellee for a writ of habeas corpus was filed, based upon the averment that the claim of Robson in the suit in which the capias was issued, was one provable in bankruptcy, from which appellee's discharge in bankruptcy would be a release. The petition for habeas corpus was heard in the District Court upon the stipulation of the parties that the return of the respondent contained a full statement of the claim upon which the suit in the state court had been brought and the capias issued, which statement is as follows:

'John L. Robson of the City of Chicago, County and State aforesaid who is about to commence his action of Trespass on the Case in the Circuit Court of the said County against E. H. Prince of the same place, makes oath and says that on or about, to wit, February 28, 1905, at Chicago, County aforesaid, the said E. H. Prince embezzled and fraudulently converted to his own use certain goods and chattels, to wit, 60 shares of common stock of the U.S. Steel Corporation, a corporation, of the value, to wit, $2100.00, which said shares of stock were then and there the property of this affiant and which shares of stock had before that time been delivered by this affiant to said E. H. Prince as a stock broker to be sold by said E. H. Prince for the sole use and benefit of this affiant according to certain instructions there given by this affiant to said E. H. Prince, to wit, that said E. H. Prince should sell 20 shares of said stock when the market price should reach $34 per share, another 20 shares of said stock when the market price should reach $35 per share, and the remaining 20 shares of said stock when the market price should reach $36 per share. Affiant further says that the said E. H. Prince disregarded utterly the aforesaid instructions and embezzled and fraudulently converted the said shares of stock to his own use as aforesaid well knowing the said shares of stock to be the property of this affiant and has not as yet delivered the same or any part of them to this affiant although often thereto requested. And this affiant further says that by reason of the premises he has sustained damages in this behalf to the amount of $2100.00 and this affiant verily believes that the benefit of whatever judgment he may obtain in said suit will be in danger of being lost unless the said E. H. Prince be held to bail.'

The petition was granted.

Edwin Terwilliger, Jr., for appellant.

Chas. C. Carnahan and M. Slusser, for appellee.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

GROSSCUP Circuit Judge, after stating the facts, delivered the opinion.

The sole question in this case is whether the cause of action set out in the return is one provable as a claim against appellee in bankruptcy. If it be thus provable, the detention of the petitioner on the capias was unlawful, and the order of the District Court...