Griswold v. Hazard

• Citation: 11 S.Ct. 972,141 U.S. 260,35 L.Ed. 678
• Decision Date: 25 May 1891
• Docket Number: Nos. 50-53,s. 50-53
• Parties: GRISWOLD v. HAZARD et al. , (four cases)
• Court: United States Supreme Court

141 U.S. 260

11 S.Ct. 972

35 L.Ed. 678

GRISWOLD v. HAZARD et al., (four cases).

Nos. 50-53.

May 25, 1891.

Appeals from the circuit court of the United States for the district of Rhode Island The first of the above suits was brought by Griswold, a citizen of New York, against the appellees, citizens of Rhode Island, to obtain a decree canceling or (if relief of that character could not be granted) reforming a certain bond, for the sum of $53,735, executed by Thomas C. Durant, as principal, and Griswold and S. D. Bradford, as his sureties. It was heard upon bill, answer, and proofs, and the bill was dismissed.

The action at law, No. 53, was brought by the appellees against Griswold upon the above bond in one of the courts of Rhode Island, and was removed, upon his petition, to the circuit court of the United States for the district of Rhode Island, where a judgment was rendered against him for the sum of $66,470.

The other two cases, Nos. 51 and 52, were suits in equity brought by Griswold, pending the action at law in the circuit court, to obtain an injunction against its further prosecution. The relief asked, in each of those suits, was denied, and the bills were dismissed.

All of the cases have their origin in a suit in equity brought, August 22, 1868, in the supreme court of Rhode Island, by Isaac P. Hazard, of that state, against Thomas C. Durant, Oliver Ames, Benjamin E. Bates, John Duff, Cornelius S. Bushnell, Sidney Dillon, Henry S. McComb, the Credit Mobilier of America, a Pennsylvania corporation, and the Union Pacific Railroad Company, a corporation created by acts of congress. Hazard sued on behalf of himself and all other stockholders in the first-named corporation who should become parties to his bill. Durant, from an early date in 1864 until May 18, 1867, was president of the Credit Mobilier of America; having, it was alleged, to a great extent, the management of its affairs, and the confidence of its directors and trustees, as well as the control of its finances and disbursements, and of its treasurer, clerks, and servants. The theory of the bill was that he had acquired a large amount of the stock of the Credit Mobilier of America upon which dividends had been paid in money and in the stock and bonds of the Union Pacific Railroad Company, the amount of such bonds exceeding, it was alleged, $700,000, and the amount of such stock of the lastnamed corporation being nearly $2,000,000; and that the shares of stock, bonds, and moneys, so received by him, belonged equitably to the Credit Mobilier of America and its stockholders.

The bill alleged that Durant's pecuniary condition was precarious; that he was, and for a long time had been, largely engaged in hazardous speculations and financial operations, sustaining thereby heavy losses, and liable to sustain others; that any recovery against him, it was feared, could not be enforced by execution or the ordinary process of law; that he was 'about to depart out of the state, and out of the jurisdiction of this court;' and that the defendants, (the individual defendants being sued as trustees in a certain contract with the Union Pacific Railroad Company, the profits of which belonged to the Credit Mobilier of America and its stockholders,) 'though requested so to do,' had wholly neglected and refused to take any steps to compel him to account for said moneys, stocks, and bonds, so received and improperly appropriated.

The principal relief asked was that Durant be required to pay over and deliver to the Credit Mobilier of America and the plaintiff Hazard such sums of money and shares of stock as should appear upon an accounting to be justly due or belonging to that corporation and to Hazard, and to make such transfer of the stock and bonds as would fully protect its and his rights in the premises; that the amounts ascertained to be due be adjudged a lien upon the shares in the stock of each of said corporations, owned or held by or standing in the name of Durant, as well as upon the above contract assigned to the defendant trustees and the dividends, earnings, stocks, and bonds received or to be received by virtue of that contract, to the extnt of the shares to which Durant might be entitled under it; and that, on default in the payment and delivery of the moneys, stocks, and bonds so found due, all such stocks and bonds be sold under the direction of the court, or otherwise transferred and apportioned equitably among the rightful owners and claimants thereof; and that such stock, bonds, moneys, interest, and rights, so procured by Durant, be deemed and taken as the rightful property of the Credit Mobilier of America and its stockholders. The bill prayed that Durant be restrained from departing out of the state, and out of the jurisdiction of the court, by writ of ne exeat, issued under its seal and by its order.

A writ of ne exeat was ordered to be issued, August 22, 1868, for $53,735. It was in these words:

'Whereas, it is represented to our supreme court, sitting in equity, on the part of Isaac P. Hazard and others, complainants, against Thomas C. Durant and others, defendants, that said Thomas C. Durant is greatly indebted to the said complainant, and designs quickly to go into other parts beyond this state, (as by oath made in that behalf appears,) which tends to the great prejudice and damage of the said complainants: Therefore, in order to prevent this injustice, we hereby command you that you do, without delay, cause the said Thomas C. Durant to come before you and give sufficient bail or security, in the sum of fifty-three thousand seven hundred and thirty-five dollars, that he, said Thomas C. Durant, will not go, or attempt to go, into parts beyond this state without the leave of our said court; and, in case the said Thomas C. Durant shall refuse to give such bail or security, then you are to commit him, the said Durant, to our county jail, in your precinct, there to be kept in safe custody until he shall do it of his own accord; and when you shall have taken such security you are forthwith to make and return a certificate thereof to our said court, distinctly and plainly, under your hand, together with this writ.'

Durant was arrested under this writ on the night of August 22, 1868, and on the 24th he executed, with Griswold and Bradford, as his sureties, the following bond, drawn by one of Hazard's attorneys:

'Know all men that we, Thomas C. Durant, as principal, and John N. A. Griswold and S. Dexter Bradford, as sureties, are firmly bound to Isaac P. Hazard, Rowland Hazard, Rowland G. Hazard, Elizabeth Hazard, Elizabeth Hazard, trustee, Anna Hazard, Mary P. Hazard, Lydia Torrey, Sophia Vernon, and Anna Horner in the sum of fifty-three thousand seven hundred and thirty-five dollars, to be paid said obligees, their executors, administrators, or assigns; to which payment we bind ourselves, ourseveral and respective heirs, executors, and administrators, jointly and severally, hereby.

'Sealed with our seals and dated this 24th day of August, A. D. 1868.

'The condition of this obligation is that said Thomas C. Durant shall on his part abide and perform the orders and decrees of the supreme court of the state of Rhode Island in the suit in equity of Isaac P. Hazard and others against said Thomas C. Durant and others, now pending in said court within and for the county of Newport.' This is the the bond above referred to.

Under the latter date, and presumably before the execution of that bond, the attorneys of Hazard and Durant signed the following agreement: 'In the above entitled case it is agreed that said Thomas C. Durant shall file a bond, with surety in the penalty marked in the writ of neexeat therein, to abide and perform the orders and decrees of the courtin said cause, and that thereupon the writ of ne exeat aforesaid shall be discharged, and that the court may enter decree accordingly.' The court, under the same date, entered the following order: 'Thomas C. Durant, one of the defendants in this suit, having executed and filed a bond, with sureties, to abide and perform the orders and decrees of the court made in this suit, it is now, by consent, ordered that the writ of ne exeat heretofore issued be discharged.' For some reason not explained, the writ of ne exeat was not returned to the clerk's office and filed until October 21, 1868. The sheriff made this return on the writ: 'Newport, August 24, 1868. I caused the within-named Thomas C. Durant personally to come before me, as within commanded, on the 22d day of this month, and now the writ is discharged by order of court.'

On the 2d day of December, 1882, more than 14 years after the commencement of Hazard's suit, it was ordered, adjudged, and decreed in that suit, among other things, as follows:

'Second. That the defendant Thomas C. Durant is accountable for and do, within 90 days from the date hereof, pay the sum of $16,071,659.97, with interest from this date, the said sum, with interest thereon, to be deposited in the registry of this court, or be paid, in the first instance, to Rowland Hazard, of South Kingston, in said state, and Henry Martin, of Brooklyn, in the state of New York, who are hereby appointed special commissioners, with authority, jointly and severally, to collect and receive the same, and with power to take such steps to collect the same as may be necessary and according to law, and said fund, or so much thereof as may be collected by process or otherwise, is hereby directed to be paid and deposited in the registry of this court to the credit of this cause.

'Third. Of the aforesaid total sum of $16,071,659.97, the defendant Thomas C. Durant is hereby allowed and is decreed to be entitled to pay and discharge $8,816,232.93, or any part thereof pro tanto, by transferring and delivering stock of the Union Pacific Railroad Company and first mortgage and sinking fund bonds of said company, as per Staement G, now exhibited to the court, and directed to...