Enoch Roberts, Plaintiff In Error v. James Cooper

• Decision Date: 01 December 1856
• Parties: ENOCH C. ROBERTS, PLAINTIFF IN ERROR, v. JAMES M. COOPER
• Court: U.S. Supreme Court

60 U.S. 373

19 How. 373

15 L.Ed. 687

ENOCH C. ROBERTS, PLAINTIFF IN ERROR, v. JAMES M. COOPER.

December Term, 1856

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Michigan.

It will be seen, by reference to 18 Howard, that this court, at the last term, in a case between these same parties, decided in favor of Cooper's title to a tract of land in Michigan. In order to recover a part of the tract which was not included in the former suit, Cooper brought an ejectment against Roberts, and obtained a judgment against him. Roberts then brought the case up to this court by writ of error.

But in consequence of its being so low upon the docket as not to be reached at the present term, Mr. Vinton, counsel for Cooper, moved for an order requiring the plaintiff in error to give additional security in the sum of $25,000, or for such other sum as, in the judgment of the court, would be sufficient to answer all damages and costs which Cooper might suffer if the writ of error should not be prosecuted with effect; and filed an affidavit by Cooper in support thereof.

The motion was argued by Mr. Vinton in support, and by Mr. Romeyn against it.

Mr. Justice WAYNE delivered the opinion of the court.

In this case, Roberts, who is the plaintiff in error, on the allowance of the writ of error, gave security in the sum of one thousand dollars, conditioned that he would prosecute his writ to effect, and answer all damages and costs if he failed to make his plea good. Cooper now declares that the bond for one thousand dollars is not sufficient to answer all the damages and costs, if Roberts should fail to prosecute his writ to effect, and refers to an affidavit filed by him as the basis of this motion to show that fact.

Mr. Vinton, counsel of Cooper, now moves the court for an order requiring Roberts to give additional security in the sum of twenty-five thousand dollars, or such other sum as the court may deem to be sufficient to cover all damages which Cooper may suffer, if the writ of error should not be prosecuted with effect.

The case between the parties is for the recovery of land in ejectment. Cooper represents that he holds the legal title to the land in controversy in trust for the National Mining Company, incorporated by the Legislature of the State of Michigan, to carry on the business of mining for copper, and that he is the secretary and treasurer of the company; that he instituted this suit to recover the possession of this land for them, that they might have the use and occupation of it for their chartered purposes. It is also stated by the affiant that a decision had been given by the Supreme Court of the United States at its last term, on a writ of error to the Circuit Court for the district of Michigan, between the same parties in controversy, for the same land, establishing, on the merits of the case, the title of the affiant to the land, and that the mining company, in consequence of it, had prepared to prosecute...