Daily clarion and standard. [volume] (Jackson, Miss.) 1866-1866, 1866-06-21
Dissenting Opinion by Chief Justice
Az

In the High Court of Errors aud Appeals
April Term, 1866, on an appeal from tue
Special Court of Equity at Jackson "a
the case of Catherine Z. Scott rs Joseph
Biilgerry-
am unable to agree with the vie ys taken
M the opinion of the majority of the Court
| in this case, in relation TO the jurisdiction
| of the Hon. George T Swami, Special Judge,
over the subject matter Of the contract
| sought TO be enforced, and as TO the proprie-
| ty OF reversing the decree, on that ground,
| and | viii state very briefly the reasons ol
| my dissent from those views.
1t is conceded that there was "a saie ci
| seventy-five bales of cOttoni thar the pNI-
! chase money was paid; and that the vendor
| the appellant, entered into contract III
| writing TO deliver the cotton at speclhed
| place; and this bill was filed for the puf-
| pose of enforcing specific performance OF
| that contract In the Court below no obiec-
| ton appears 10 have been made, either by
| the demurrer, or in the answer, or by motion
| TO dismiss, on the ground that It was not
/ case within the jurisdiction OF the Court;
/ and the defence was placed wholly on the
| ground that, upon the facts and special
| grounds of defence set up in the answer, the
| appellee was not entitled TO recover, either
at law or in equity. The question of jurIs-
| diction appears to have been raised for the
| first time III this Court.
| If the objection was, that the Court had
4
| specific performance OF contracts for the sale
/ and delivery of personal property, under any
state Of circumstances, 1t is true that that OBJ
/ lection might be taken, and should be en-
/ tertained, at any time III the progress OF the
/ cause, either in the Court below or in this
/ Court, by pleading, motion to dismiss or as
| signment of error, on that ground. But that
/ position has not been cOntended for in the
/ argument here, and il Is clear that 1t could
| not be maintained for the books are full OF
| cases in England and in this country, and
/ especially in more recent time, where spe-
/ citic performance has been enforced, OF con-
/ tracts for the performance Of acts IN rela-
| ton to personal property, and for the trans
| fer or delivery of ehattels and where DEGREES
/ have been rendered for compensation IN
damages in default of performance, under
/ special circumstances. These cases are nu-
| merous and familiar to the profession, and
| need not be here enumerated or commented
on.
| Bat the objection urged here, and sustain
| ed by the opinion OF the majority OF the
| Court is that the facts of the case, as de
| vcloped by the evidence showed that it was
| not proper one for'the exercise of the Jurls-
| diction of a court of equity-that the court
| below exercised its jurisdiction enormously
| in the case made by the proofs. 1t was, then,
| mere error in the court below in the particu-
| lar case. and not want Of jurisdiction of the
/ subject matter.
Ii is Just and satisfactory rule, constant
| " acted on in this Court, not t. entertain
! assignments of error here and reverse judg-
/ ments upon points not made in the court be-
| low Parties are required to state their cases
| 10y their pleadiugs in that court, whether at
| law or in equity. On that, and ON the le-
| Ultimate steps appearing, by the record, to
| have been taken in the court below, the case
| presented here must stand or fall. And this
| Court acts upon the Just and reasonable pre-
| WIZ IL here
| that if the objection had been made below,
| il might have been properly met, If indeed,
| under any conceivable state of circumstan-
| ces, it might have been obviated. Thus, II
| the court below had jurisdiction of the sub
/ ject matter, under any possible state of cir
| cumstances, and the case turned, under the
! pleadings upon grounds which conceded the
| Jurisdiction by placing the defence on points
| Independent of it, it will he presumed that
/ the particular facts iustifying the exercise
| of the jurisdiction existed and could have
| been proved, had it been proper or necessary
| to make the proof under the issues made By
the pleadings. ANY other rule would work
| surprise aud great injustice to parties in this
| Court. and this Court would occupy the at
titude of deciding a case not made by the
! parties. Possibly to the irTemediable preju-
| dice of one of them, and upon grounds
| which were conceded or pretermitted by the
| opposite party in the court below and which
| might have been obyiated, if duly presented
| there.
| think, therefore, that it is not proper to
| hold that the peculiar circumstances did not
| exist in this case TO Justify the exercise of
| the jurisdiction, which upon general pr1n-
! ciples of equity jurisprudence, court of
| equity may exercise in relation to contracts
| for personal property, either authorizing
| decree of specific performance, or cOmpen-
| sation in damages.
| 1t is undoubtedly well established, a
/ I'D a41s tltaf
| courts of equity Will not decree specific per
| Torrance OF contracts in relation to personal
| property, or compensation in damages for
| their non-performance, unless under peculiar
circumstances showing that the remedy at
| law is not complete and adequate But 1t
| appears to me manifest, that the edict of the
| PROVISIONAL Governor appointing Judge
| Swami special judge, and defining his pow
| ers, greatly extended and enlarged the Ordi-
| nary powers of a court of equity in such
| cases, and were clearly intended to have
that effect.
In determining the extent of the authority
thus conferred, we must take into consider
alton as well the circumstances which led
to the establishment of the Special Court
which are matters of public notoriety
events in the history of the times, what
was done by the Provisional Governor III
| making the appointment,
When the Provisional Governor assumed
the functions of his Office there was a total
subversion of the State Government, in its
Executive, Legislative and Judicial depart
ments, and the only semblance ofgovernment
in the State was that of arbitrary military
rule. 4 state of lawlessness was the con-
sequence, not only in the acts of many of
our people proceeding from the prevailing
| state of confusion, but in the course pur-
| sued by the military officers IN their mode of
! administering law and acting on the civil
rights of the people In all cases of wrongs,
fb.a
When horses, mules, or cotton, which We're
| the principal subjects of contention, We're
taken or intertered with, whether justly or
not, application was made TO the cOmman-
ding General; and, without notice to the
adverse party, and on er pdrte Showings, the
most summary orders were made and en-
! forced 10y the most stringent process known
to martial law This was particularly the
case in regard to cotton. Owners of cotton
who had sold it TO purchasers during the
war, obtained orders and guards TO prevent
purchasers from taking possession of it, and
owners We're frequently dispOssessed of it by
purchasers by the same process; aud, by
these means, grievous wrongs were done to
both parties, insomuch that il was a crying
evil i'll the land.
After the Provisional Governor entered
on the duties of his office, he was applied to
in numerous cases by the parties aggrieved
by such orders for relief. and in many other
putes between the parties and, in order to
provide tribunals for adjusting such .contro-
versies, he ordained that the Replevin law
of the State, giving jurisdiction TO Justices
of the Peace in all actions of Replevin,
should be in force, which was intended to
furnish a remedy for the recovery of horses,
mules and other specific chattels-; and he
appointed Judge Swami, Special Judge
with special reference TO contracts in rela-
ton TO cotton, which had been a fruitful
source of strife before the commanding
General and the Provisional Governor
The end intended by this appointment |
unquestionably was to provide tribunal |
which should settle all disputes between |
planters and purchasers, in relation to con- |
tracts for the sale and delivery of cotton. |
That was the pressing evil which called for /
interposition, and there was no judicial tri- /
bunal in the State to settle such disturbing
contentious Under these circumstances,
Judge SWAMI, ri,lsseintad by an order in
these words:
Il VIM. L. Sharkey, Provisional Governor
of the State of Mississippi, do hereby ap- /
point said George /. Swami to the office of /
Special Judge, with equity jurisdiction in /
all contracts for cotton or other personal |
property in this State, with power TO pro-
eeed in a summary way on petition, to en-
force specific performance. or rescind con-
tracts on notice to parties &c, to appoint /
a clerk with fees as allowed ehaneery clerks
to enforce DEGREES and TO receive prescribed |
fees in each case.
What, then, was the extent of the power
conferred by the terms of this appointment
Il, |