Mary Bein, and Richard Bein, Her Husband Hawkins, and James Masters, Plaintiffs In Error v. Mary Heath

• Decision Date: 01 December 1851
• Citation: 12 How. 168,13 L.Ed. 939,53 U.S. 168
• Parties: MARY BEIN, AND RICHARD BEIN, HER HUSBAND, G. S. HAWKINS, AND JAMES M'MASTERS, PLAINTIFFS IN ERROR, v. MARY HEATH
• Court: U.S. Supreme Court

53 U.S. 168

12 How. 168

13 L.Ed. 939

MARY BEIN, AND RICHARD BEIN, HER HUSBAND, G. S. HAWKINS, AND JAMES M'MASTERS, PLAINTIFFS IN ERROR, v. MARY HEATH.

December Term, 1851

THIS case was brought up, by writ of error, from the Circuit Court of the United States, for the Eastern District of Louisiana.

It was an action brought by the defendant in error upon an injunction-bond, and was a consequence of the case of Bein et al. v. Heath, reported in 6 How., 228.

A brief recital of the circumstances may be necessary.

In May, 1838, Mary Heath lent some money to Mary Bein, the wife of Richard Bein, and took a mortgage upon the separate property of the wife to secure the payment of two notes, one for $10,711.71, and the other for $535.50.

In 1840 Richard Bein applied for the benefit of the insolvent law, notwithstanding which the interest upon the loan continued to be paid to Mary Heath, until 1842.

The interest then becoming in arrear, Mary Heath applied for, and obtained, a writ of seizure and sale of the mortgaged property in May, 1843.

Bein and wife then filed a bill in the Circuit Court of the United States for the Eastern District of Louisiana, to set aside the mortgage, upon the ground that it was not executed conformably to law, and praying for an injunction to suspend proceedings, under the order of seizure and sale. On the 28th June, 1843, the court passed the order directing the injunction to issue as prayed, upon the complainants giving a bond with certain sureties named in the order, to answer all damages which the defendant in that suit might sustain in consequence of said injunction being granted, should the same be thereafter dissolved.

On the 21st June, 1843, a bond was executed in the penalty of $3000, signed by Mary Bein, G.S akn,adJmsMMses u nta ftecniinbigi h anrpecie ytecut, it was as follows:——

'Now the condition of the above obligation is, that we, the above bound Mary Bein, Gilbert S. Hawkins, and James McMasters, sureties, will well and truly pay to the said Mary Heath, the defendant in said injunction and plaintiff in said case of seizure and sale, all such damages as she may recover against us, in case it should be decided that the said injunction was wrongfully obtained.

Signed, M. BEIN,

G. S. Hawkins,

JAMES McMASTERS.'

Upon the trial of the cause in the Circuit Court, that court decided that the mortgage was well executed, and dissolved the injunction. Bein and wife appealed to this court. It came up for hearing at January term, 1848, and is reported in 6 How., 228. This court having affirmed the judgment of the Circuit Court, the order of seizure and sale became released from the injunction, and was executed by the marshal. The mortgaged property was sold for only $7000.

In December, 1848, Mary Heath brought a suit, by way of

petition, upon the injunction-bond, alleging that she was greatly damaged by the wrongful issuance of said injunction; that she encountered long delays in obtaining any portion of the sum due to her; that she incurred many and heavy expenses in consequence of the said injunction, and was subjected to great vexation and trouble.

That she is entitled by law to damages, at the rate of ten per cent. per annum upon the amount enjoined; that she has paid various large sums to lawyers for their professional services in defending said injunction, and in getting the same dissolved, viz., to Messrs. Ellmore & King, attorneys at law, seven hundred dollars; to John R. Grymes, attorney at law, five hundred dollars; to J. W. Smith, five hundred dollars; and to attorneys and counsellors in Washington to attend the argument of the case in the Supreme Court—to Walter Jones, attorney at law, two hundred and fifty dollars, and—Bradley, Esq., attorney at law, two hundred and fifty dollars.

That the trouble and labor of the petitioner was an injury to her of at least one thousand dollars.

That the damages thus caused to the defendant, as above alleged, amount to about eight thousand six hundred dollars, which the said Mary Bein and the said Gilbert S. Hawkins are bound in solido to pay to the petitioner, by virtue of the foregoing allegations, and the bond signed by them to the extent of three thousand dollars. As the damages greatly exceed the amount of the bond, the petitioner is entitled to judgment against the defendant for the whole penal sum of the said bond, viz., for three thousand dollars, with interest from the date of judicial demand.

To this petition the general issue was pleaded, and in May, 1849, the cause came on for trial before the court, a jury being waived by agreement.

Two bills of exceptions were taken to rulings of the court in admitting certain evidence, as follows:

Circuit Court of the United States Fifth Circuit.

Be it known, that on the trial of the above suit, the counsel for the plaintiff, to maintain the allegations of his petition, offered to prove by witnesses the amount of fees paid by the plaintiff to Ellmore & King, J. R. Grymes, and J. W. Smith, Esqrs., her attorneys in the court below, in the suit in chancery of Bein and wife against said Heath, and in the proceedings had in the seizure and sale obtained by said Heath against said Bein, which said seizure and sale were enjoined in said suit in chancery, to the introduction of which the defendants, by their counsel, objected, on the ground that the employment of said counsel by

said plaintiff occurred before the issuing of the injunction and executing and filing of the injunction-bond in the suit, and before the said defendants had incurred any obligation to pay any damages, interest, or costs in said suit.

And at the same time and place the said plaintiff, to maintain the allegations in her said petition, offered to prove by an attorney at law the supposed value of the legal services rendered by the counsel for the plaintiff, in the said chancery suit in the Supreme Court of the United States; to the introduction of which said evidence the defendants by their counsel, objected, on the ground that no evidence could be offered of a quantum meruit, under the issue formed between the parties aforesaid, the plaintiff in her petition having pleaded the payment to said counsel of a specific sum of money as their fees. But the court being of the opinion that all of said evidence was admissible, received the same. Whereupon the counsel for the defendant excepted to both rulings of the court as contrary to law, and prays that the bill of exceptions may be signed and sealed, and made a part of the record, which is accordingly done.

THEO. H. McCALEB, [SEAL.] U. S. Judge.

Circuit Court of the United States, for the Fifth Circuit and District of Louisiana.

Be it known, that on the trial of this suit the plaintiff, by her counsel ___ _____, to maintain the allegations of her petition, offered to prove that a large portion of the rent of the mortgaged premises, for the sale of which she had issued against Mary Bein her executory process, has not been paid over to her by the tenant to whom the premises had been leased before the issuing of the injunction to stay said process; to the introduction of which evidence the defendants, by their counsel, objected as irrelevant to the issue joined, and because the court had appointed the marshal of the United States the receiver to collect said rent, and to hold the same subject to the final judgment of the court; and that the loss of said rent constituted no part of the damage sustained by the plaintiff by the issuing of the injunction, for which the defendants are legally liable on the injunction bond sued on; but the court being of the opinion that said evidence was admissible, received the same. To the admission of which said evidence the defendants, by their counsel, except and pray that this their bill of exceptions may be signed, sealed, and made a part of the record, which is done.

THEO. H. McCALER, [SEAL.] U. S. Judge.

On the 14th of May, 1849, the court pronounced its judgment, and after sundry proceedings which it is not necessary to state, on the 15th of June, 1849, the judgment was signed as follows:

Judgment.

MARY HEATH }

v. } No. 1751.

MARY and RICHARD BEIN et. al. }

The parties herein having waived the jury and submitted this case to the court, after argument on the evidence, and the court being satisfied from the evidence that the plaintiff has suffered damages from the injunction obtained by Mary Bein and her husband, to a greater extent than the amount of the penalty in the bond sued on, and that the plaintiff is entitled to recover in this suit to the extent of the penalty of the bond against the defendants in solido:

It is hereby ordered, adjudged, and decreed, that the plaintiff have judgment against Mary Bein and Gilbert S. Hawkins, and James McMasters, in solido, for the sum of three thousand dollars, with interest from the second day of December, A. D. 1848 until paid, and costs of suit.

Judgment rendered 14th May, 1849.

Signed 15th June, 1849.

THEO. H. McCALEB, [SEAL.] U. S. Judge.

On the 19th of June the court passed the following order:

On motion of—Eggleston, Esq., of counsel for defendants, and on his representing to the court that the said defendants felt aggrieved at the judgment herein rendered on the 15th instant, and that they desire to have a writ of error, that the proceedings may be reviewed in a higher court, it is ordered, that a writ of error be, and the same is, hereby allowed to the said defendants, returnable to the next term of the Supreme Court of the United States, on their furnishing bond with S. W. Oakey, as surety, in the penal sum of four thousand six hundred dollars, conditioned as the law requires.

Upon this writ of error the case came up to this court.

It was argued by Mr. Coxe, for the plaintiffs in error, and Mr. Bradley, for the defendant.

Mr. Coxe, for the plaintiffs in error, made the following points:

1. Under the law of Louisiana, no action of debt...