The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-28
THE BROADWAY RAILROAD CASE.
Supreme COurt.
ARGUMENT OF EX-cHIEF JUSTICE JONES on BEHALF
or THE GRANTEES


ARGUMENT OF Ex-cHIEF JUSTICE JONES on BEHALF
or THE GRANTEES.
Before Judges Edwards, Morris and Strong.
FEB. 2S.--John Miihaw and Others rs. Jacob
Sharp and others.
This was an action upon promissory note; but IN
the course Of that came up this state OF acts:
that certain party had made a voluntary assign
ment of all his effects for the benefit OF creditors and
there was an Injunction obtained on bill filed
against him and the assignees restraining them from
collecting or receiving any OF the debts. The ques-
ton arose upon the validity Of that payment and the
Injunction enoined the assignees from receiving or
collecting any Of the debts. They, however, re-
ceved this debt after the service OF that Injunction
upon them and with the full knowledge OF the credi-
tors. The opinion was given by Chief Justice Mel
son, and he says-"The only question in the case i,
whether the payment Of the note is to be regarded as
having been made by the defendant in his own
wrong by reason of the injunction restraining the
payees from collecting receiving the debts due"
Precisely as here whether we receive this grant or
license in our own wrong by reason of the injunction
against granting 1t, andwRur knowledge OF the ex-
stence Of that junction. THE Judge goes on to say
tt is general rule that courts OF law will not lend
their aid to enforce inunctions from chancery nor
do they ordinarily take any notice Of such writs in
the course Of proceedings in suits at law The case
of Burt VS.. Mapes, q Hill, 649) is an authority to
show that if the payers of the note in question had
instituted suit in this court against the defendant
we should not have received the facts set up to
avoid the effect of the payment in bar OF the action;
and do not see, therefore, how we can consistent
ly say that payment was not well made. we should
have allowed the plaintiffs to go with the suit,
and left the Court Of Chancery to deal with them as
il fit under the particular circumstances OF the
case That court might have excused the act, and
overlooked the breach Of ts process at all events we
do not assume the Office Of determining what shall or
shall not be the effect consequences ofsuch breach
of its process. 1t is enough that the Court OF
Chancery possesses ample power TO punish any un-
warrantabe interference with violation OF its man.
dates and does not need the aid of this court. The
nor ~ ha yQfl n
assgnees, and may be remunerated for all his dam
ages by the infection of proper fines, If the case be
which, in the ordinary course OF proceedings,
and in the exercise Of sound discretion, would be
regarded as demanding the interference of tao Court
of Chancery. In Booth -. Mott, IL Sslh. 322: G
Mod. 22S, : CD the court let aside an execution
wilton mad hcea Issued, after the expiration os yeef
fLaut ,ciTe fociaS; and this, though the plaintiff
had been tied up by an injunction issued on the
defendants application. The court said they could
not take notice Of chancery njunctions In Mitchell
Cue, G. Burr, 6600 the judges refused to set aside
an execution under like circumstances; not however
on the ground that the court bound to notice the
Injunction but for the that the party should
not be allowed to take advantage of his act in
delaying the plaintiff. In Gorton v. Dyson Il Brod.
and Bing. 219) the court entertained the argument
of cause, Notwithstanding an injunction in the
Court OF Exchequer against all further proceedings
in the c. b. And observe, also, that IN Franklin
" Thomas, 6 Meriv, 234) it was said to have been
the opinion Of Lord Thurlow that where an injunc-
ton is obtained after execution levied, though
il i breach Of i or the party to call upon the She
rn 70 pay the money yet, ii he voluntarily pay,
il is no breach of the injunction to receyet Lord Ell
don thought that IN such case the person receiving
the money could be ordered to pay It into court In
the before us, the defendant was not made par
ty nor was he enjoined and it would seem, from the
doctrine of Lord Thurlow, that the payment by the
defendant would, even in the Court Of Chancery, be
discharge Of the debt. Unless we are bound by
some settled principle of law to take notice Of this
injunction, (and think we are not it will certainly
lead to more Just and equitable arrangement, in
respect 70 all parties concerned for the plaintiffs to
appeal 10 the tribunal whose process has been dsre
garded 1t seems that the money has BEEN in fact APP
piled in payment ofa debt due from Hempsted to Keel
er to whose estate the note belonged and if the defend
ant should now be held accountable for the money,
this consideration might 20 to mitigate his loss.
Again, possibly the Court of Chancery would be dis
posed to follow out the idea Of Lord Eldon and call
upon the Clinton Bank for the whole part of the
money The powers OF that court all the parties
concerned in the payment and receipt OF the money,
upon the note in question, are much more ample and
extensive than those possessed by courts at law In
the exercise OF those powers the former court would
be enabled to bring out more full developement Of
the circumstances connected with the whole matter
than can possibly be done here. II might, perhaps,
regard the trifng sum for which the note was held
by the receiver Those considerations should induce
TO leave the question Of breach Of the injunction
and its effect, to the exclusive cognZance Of the
Court of Chancery. | am OF opinion, therefore, as
well upon the fitness and pr0prety OF the thing as
upon authority that cannot take notice of the in
junction, and consequently, that valid payment of
the note was established The report Of the reference
must be set aside, costs to abide the event"
But proceeding to observe that in this case we
apprehend that this injunction IL it was intended TO
operate and could By the terms Of 1t operate If valid
upon the two Boards OF the Common Council, if their
action upon this resolution was unauthorized that
that court bad no jurisdiction 10 issue it, this
proposition rests upon these grounds: that this
lntion, then pending before that Common Council
was legislative act, and that no judicial tribunal
had jurisdiction to interfere with the passage of le-
gislatiye act before legislative body This Is how
ever, another view OF that part Of il which it may be
proper to submit to the Court before particularly con
sidering the that / have just suggested. The
Common Council is public organized body, invest
ed with particular powers for public purposes. IT, in
the exercise Of those powers for those purposes or
for any purpose, they exceed their Jurisdiction how
are they to be restranedl Il it by writ Of njunc.
ton from court Of equity Or Is il not by writ Of
prohibition, in case they are going on, or writ Of
mandamus in case they reinse to 90 on, from the
court which has the superintendent Ia the State of
all inferior jurisdictions except itself, within that
State Is it not, if they transcend their power.
or II they act in cOntrayention to their autho-
rty, and refuse TO do the act which the court
may suppose they ought to do is it not by man
damus from this court OF general supcrintend-
ent jurisdiction to command them to do that act
II, Tor abuse OF power, ask, it be possible that
court-that body invested with legislative pow
er and general dsctetion--can be called to account
~, So.i. =, .iuey' ny VIII Oh iDJuncton, III
curing INTO their motives and conduct and impeach
ing them as guilty Of breach of trust I believe
that you NAV search the whole records of the Eng
fish courts Of justice, and you will never find such a
case. Acts are therefore, done under the AUTHORITY
Of this legislative or discretionary power Their
agents or servants are those who attempt TO carry
their legislation into effect and are affected and may
lie affected by injunction from court Of equity but
the passage Of The act itselthe exercise Of the Ie
yslave functions, the proper exercise Of the legal
discretion does not belong TO a court Of equity 10
correct or 10 inquire into; and that subject so far az
( relates to discretion Court will remember. en-
races powers of all descriptions whether legislative
udciaf or executive. IL embraced the case of Pre-
ident Madison, who was authorized TO call out the
hat very Superior Court assuming TO Issue its writ
mandamus 10 the Supreme Court who had granted
new trial In a certain case, ordering them to re-
erse That new Trial end give Judgment The ques-