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

In the High Court of Errors and Appeals,
April Term, 1866, on an appeal from the
Special Court of Equity at Jackson, in
the case of Catherine f. Scott Us. Joseph
Billgerry.
am unable to agree with the views taken
m the opinion of the majority of the Court
in this case, IN relation to the jurisdiction
of the Hon. George 7. Swami, Special Judge,
| over the subject matter of the contract
sought to be enforced, and rs to the proprie-
ty of reversing the decree, on that ground,
and will state very briefly the reasons of
my dissent from those views
1t is conceded that there was a sale Of
seventy-five bales of cotton; that the pur-
chase money was paid; and that thelvendor,
the appellant, entered into contract i'll
writing to deliver the cotton at a specified
| place; and this bill was filed for the pur-
pose of enforcing specific performance of
that contract. In the Court below no obiec-
| ton appears to have been made, either by
| the demurrer, or in the answer, or by motion
| to dismiss, on the ground that it was not a
| 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 in this Court. .t.F
1
not jurisdiction of the subject matter of the
| 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 in 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 it is clear that it 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 i'll rela-
| ton to personal property, and for the trans
| fer or delivery of chattels, 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 thesprofession, and
need not be here enumerated or commented
| on.
| But 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 iuris-
| dction 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 i'll the court below in the particu-
| lar case, and not want of jurisdiction of the
| subject matter.
| 1t is Just and satisfactory rule, constant
| ~ acted on in this Court, not to entertain
| assignments of error here and reverse judg-
meuts upon points not made in the court be-
| low. Parties are required to state their cases
| by their pleadings 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-
sumption, when a new point is raised here
| that if the objection had been made below,
it might have been properly met, if indeed
under any conceivable state of circumstan
ces, it might have been Obviated. Thus, il
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 be 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 ithe issues made by
the pleadings ANY other rule would work
| surprise and great injustice to parties in this
Court, and this Court would occupy the at
titude of deciding q case not made by the
| parties Possibly to the irremediable preju
|
which were conceded or pretermitted by the
opposite party in the court below and which
| might have been Obviated, if duly presented
| there
| think, therefore, that it is not proper tt
| hold that the peculiar circumstances did moi
exist in this case to Justify the exercise OF
| the Jurisdiction, which upon general prin
ciples of equity jurisprudence, a court o
equity may exercise in relation to contracts
for personal property, either as authorizing
a decree of specific performance, or cOmpen
| sation in damages.
1t is undoubtedly well established, as
matter of general equity jurisdiction, thai
courts of equity will not decree specific per
Torrance Of contracts in relation to persona
property, or compensation in damages fol
their non-performance, unless under peculiar
circumstances showing that the remedy a
| law is not complete and adequate. But i
| appears to me manifest, that the edict of thu
Provisional Governor appointing Judg'
Swami special judge, and defining his pow
ers, greatly extended and enlarged the ordi
| nary powers of q court of equity in sucl
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 lee
to the establishment of the Special Court
which are matters of public nOtOriety "a
| events IN the history OF the tunes, as Wna
was done by the Provisional Governor IL
making the appointment
| When the Provisional Governor assumed
| the functions of his Office, there was tota
subversion of the State Government, in it,
| Executive, Legislative and Judicial depart
ments, and the only semblance Ofgovernment
| in the State, was that of arbitrary military
rule. A state of lawlessness was the con
sequence, not only in the acts of many o
our people proceeding from the prevailing
state of confusion, but in the course pur
sued by the military officers in their mode o
administering law and acting on the civil
rights of the people. In all cases of wrongs
the military tribunals were the only resort
When horses, mules, or cotton, which were
the principal subjects of contention, were
taken or interfered with, whether justly Of
not, application was made to the comman
ding General; and, without notice to the
adverse party, and on er pGrte shOwlngs, The
| most summary orders were made and en-
forced by the most stringent process known
to martial law. This was particularly thu
case i'll regard to cotton. Owners of cotton
who had sold it to purchasers during thu
war. obtained orders and guards to prevent
purchasers from taking possession of it, anC
owners were frequently dispOssessed of it by
purchasers by the same process; aud, by
these means, grievOus wrongs were done tt
both parties, insomuch that it was crying
evil III the land.
After the Provisional Governor entered
on the duties of his Office, he was applied tt
in numerous cases by the parties aggrieveC
by such orders for relief, and in many othel
cases, for the purpose of settling such dis
putes between the parties and, in order tt
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 Repleyin
should be in force, which was intended tC
furnish 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 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 fol
| interpOsition, and there was no judicial tri-
| bunal in the State to settle such disturbing
| contentious Under these circumstances
Judge Swami was appointed by an order in
| these words: fhtF4
81, VIM. L. Sharkey Provisional Governor
of the State of Mississippi, do hereby ap-
point said George T. 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-
coed III 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 chaneery clerks,
to enforce DEGREES and to receive prescribed
fees in each case.
What, then, was the extent of the power