The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-07-07
UNITED STATES SUPREME COURT.

WASHINGTON, July O, 1875.
NO. 1o4 John Phelps Putnam ct al. VS.. Ezekiel
Il. Day-Appeal from the Circuit COURT for the Dis
trlct OF Indiana-rhis is a case in equity which in
the court below, came up on a bill IN the nature
OF bill OF review. To the character Of a bill OF
review It adds that OF an original bill seeking to
set aside the decree In the principal suit on the
ground OF inadvertence and mista on The part
OF the complainants' solicitor and counsel.
The bill was filed by Ezekiel Il. Day,
the appellee here, TO reverse and set
aside decree which had been rendered against
him for the sum OF 6,23o in the suit referred to
In which John Phelps Putnam Heman Ely and
Stevenson Burke, the appellants here, were the
complslnants, and the New Albany aad Sandusky
City junction Railroad Company, the city OF New
Albany, Silas q. Day. and the said Ezekiel r.
Day. and divers other pers3ns, stockholders OF
said railroad company, we're the defendants.
The original suit was creditors bill filed in
the Circuit Court or the led States for the
District OF Indiana, in January, 1868, by the
compliments as judgment creditors OF the same
railroad company, under judgment recovered
IN the names 0fcertan truseesin The Floyd County
Circuit Court OF lnaiana IN November, 1867, the
beneficial interest OF which Judgment had peen
assigned TO the compliments. The bill was fled
and the other defendants thereto, for The purpose
OF compelling them, as stockholders of the New
Albany and Sandusky City Junction Railroad
Company, to pay the amounts alleged to be due
and unpeid by them on their stock subscriptions
said judgment due 10 the complanants might be
PAID aud satisfied, 1T being alleged that the
said railroad company was lhsolvent and that It's
property had been exhausted Ia satisfying other
Claims a decree was rendered IN July, 1859. ad-
Judging tpat there was due to The ccmplalnants
on sheir said judgment upward or $4,000, and
that there was due on the stock subscriptions OF
SAID railroad company, from the city OF New
Albany, upward or 500. OC0; rom the appellee,
Ezekiel Il. Day. 1920, and from Silas U. Day
S.. 026, which sums were directed TO be paid and
applied pro rata In satisfaction OF said Judgment.
The bill was dismissed as TO the other defendants,
IL being found, upon q defence TO that erect set
up by them, that tney were not.indebt GA their
been taken on OF their hands oy the city OF New
Albany under provision for that purpose contained
In the original subscription. The case OF these de-
PENDANTS was considered by this Court IN Burke vs.
Smith, 10 wall, $780, rhe city OF New Albany, in
Wit q complete settlement and compromise with
the railroad company In 1851, by which the bonds
scrptlon were surrendered upon its assuming
and paying a large amount OF DEBTS Que by the
company; and the city insisted that this settle
ment was made In good raith and was Tor the
benefit OF the railroad company and It's creditors;
be permitted to disturb so proper
AID just an arrangement. The case OF she city
was pending In this court on appeal when the
present Dill OF review was filed by Ezekiel X. Day.
A decision mas since been made In favor OF the
city and VIII be 1eund reported IN IL Wall, 93.
Day, the present appellee, did not JOIN the osher
defendants IN the defence set up by them, but
filed separate answer and q cross bill. IN which
he admitted that he mad subscribed stock in the
railroad company TO the amount OF i36, 100 aud
that $500 thereof remained unpaid. He then
stated tnat the other defendants, including the
city or New Albany, were subscribers TO q
large amount which he set forth IN lisi, and he
claimed that they had not paid as much in pro-
portion on their subscriptions as ne had paid on
his and prayed that they might be compelled TO
contribute until they had paid IN equal proportion
70 himself, in when case, ne alleged there would
be money due to HIM instead OF money due rom
him. His cross bill being demurred to, was dis
missed; and the decree against him was MADE on
the admissions OF his answer, charg ng him with
thereon. In January, 1870, the present bill OF re-
view was fled 70 have tnD decree SET aside as
to the appellee, Ezekiel r. Day. In this bill, which,
as before noted, was u bill Partly original and
partly in review, the complainant states briefly
the proceedings in the former suit admits the
fling CT the answer and cross oil before referred
10, but alleges that It was filed by mis- attorney
and never seen or read or sworn to by nIm-
SELL and tnat 1t ala not set up truly tue facts or
the true grounds OF his defence. he further states
that the truth was that his stock was taken Dy
the city of New Albany In the same manner as
that or inc other defendants, except certain
shares which he subscribed, payable IN lands, and
tnai ire was not Indebted to the railroad COMPANY
for any portion Of stock subscribed by hiu. he
also insisted as a ground OF review that he de-
cree in the FORMER suit was erroneous, and should
Fi,,st-Ihat tho FLOYD County ClTcai, Court, In
elusive jurisdiction In TIE matter,
Secons- That the original Dill did not set out
sufficient facts to snow an indebtedness on his
Tsir0-That the compliments were guilty ofgross
Iachcs and negligence IN seaklug equitable relief,
having lain Dy and slept on their right TO equIta-
bic relief, II they had any, or more than nine
years.
on these facts Mr.. Justice Bradley delivered the
opinion OF the Court, In substance as folows:-
on a bill OF review IN equity nothing can DO ex-
amned but the pleadlno, pr ceedlngs and de-
cree, which, IN TINS country, constitute
what IL called the record in the cause.
The proofs cannot De looked into as they
can on appeal On such q Dtl ii'ed by the defend
ant to set aside the decree he II bound by the
answer dled on his behalf by his solicitor, thongh
he dd not himself read 10, unless he can snow
mistake or fraud In fling II. The answer OF other
defendants cannot pc read IN hts favor. Wnen he
defendant by his answer admits the CLAIM TO be
due, and prays contribution from other aoend-
ant without setting up any defence TO the de-
mand, he cannot after decree. and on a bill Of
review, ask 10 have the decree set aside on the
ground OF iaches on the part OF the complainant
In bringing suit