Opinion of the Court. purpose of defeating its substantial purpose and effect. Here was a decree affording to the complainants, Evans and others, in that suit, distinct and unconditional relief, viz. that of having the attached property brought into court and subjected to the complainants' demands, or, in the alternative of that, the payment into court for the same purpose of the value thereof. The enjoining of the complainants from taking the usual remedies for the enforcement of the decree would amount to a nullification of the decree itself pro tanto. The right of the complainants, Evans and the creditors who joined him in this suit, as against the obligors on these bonds, was fully considered by this court on the appeal in the former case, and was definitely ascertained and determined by the decree which it directed to be entered. The decree of the court below was in substance and effect that which this court ordered and directed. Its conformity to the mandate of the court is not disputed by any proper challenge, and no reason is perceived for doubting that it was authorized by the opinion and mandate of this court. The suggestion that that decree may be defeated in this way cannot be entertained. Upon the entry of it the complainants in the suit were entitled to a direct and immediate performance of it. It did not leave them in a position where it would be necessary, in order to realize the benefits of it, for them to institute some new proceeding in that court or any other; nor were they under any liability to be brought into a further controversy at the instance of any party to that suit for the purpose of having their rights in respect to the subject-matter of the decree overhauled and readjudicated. There would be no finality in the judgment and decrees of courts if, when the rights of parties are settled by express adjudication, they can be thus reëxamined, modified or made conditional upon further litigation. As will be seen upon reference to the opinion of this court in the case of Chattanooga, Rome and Columbus Railroad Company v. Evans, 31 U. S. App. 432, 461, Judge Lurton, in delivering the opinion of the court, examined and considered the legal character and effect of the replevin bonds under the statutes and Opinion of the Court. decisions in Tennessee, and, quoting the cases of Kuhn v. Spellacy, 3 Lea (Tenn.), 278, Ward v. Kent, 6 Lea (Tenn.), 131, Green v. Lanier, 5 Heiskell, 662, and Barry v. Frayser, 10 Heiskell, 206, 215, expressly declared: "We hold that this bond must be regarded as a bond of the second class, and that its penalty is for double the value of the property attached. The proper decree is for the penalty of the bond to be discharged upon the delivery of the property replevied. Inasmuch as the value is not specifically stated in the bond, it may, as was done in Kuhn v. Spellacy, supra, no reference having been asked below, be assumed that the value was one-half the penalty of the bond, or $4,500. By the payment of that sum, with interest from the date of the bond, the decree may be discharged;" and further: "It was intimated in Kuhn v. Spellacy, supra, that it was perhaps unnecessary to recite in the decree that it might be satisfied by a return of the property, as the right accrues under the statute itself. However this might be, if this proceeding was in the state court, it is clearly right that the decree should be so modified as to permit the appellants to satisfy the decree by returning the property replevied. This they may do, provided the property shall be placed in the custody and possession of the Circuit Court within thirty days after that court shall modify the decree as hereby directed." The decree of the court below was subsequently modified accordingly, and the rights of the parties became thereby fixed; and it was not competent to take any action in the Circuit Court which would contravene or further modify them. This has always been the rule in the Supreme Court of the United States, and has always been acted upon, not only in that court, but in the United States Circuit Courts of Appeals, which have succeeded to a part of the jurisdiction of the Supreme Court. See, among other cases, Humphrey v. Baker, 103 U. S. 736, Gaines v. Rugg, 148 U. S. 228, and Texas & Pacific Railway Company v. Anderson, 149 U. S. 237. Many of the cases are collected in the opinion of this court which was delivered by Judge Lurton in Bissell Carpet Sweeper Company v. Goshen Sweeper Company of Grand Opinion of the Court. Rapids, Michigan, ante, p. 47, where the rule was held to apply to the case of a mandate sent down to the Circuit Court upon the affirmance of an interlocutory decree for an injunction. But it is contended that, the court below having the property which had been replevied in Evans' suit already in its possession, and having control thereof by virtue of its authority over the receiver in the foreclosure suit brought by the Central Trust Company of New York, the obligation of the replevin bonds was substantially performed, because, in effect, the property was so situated that it could be transferred by mere direction of the court. But this proposition is wholly unsound. The possession of the property which the court's receiver had in the Central Trust Company's case was a possession for the purposes and objects of that suit. It had been seized by virtue of the lien of the mortgages, and the possession which had been taken was for the purpose of enforcing the lien, and so long as that possession is maintained, and for such purpose, it is a fallacy to say that it has been returned and exposed to an execution on Evans' judgment. No action whatever has been taken by the court, or moved by any party, for the purpose of turning the property over; but on the contrary it is claimed and insisted by the receiver in the foreclosure suit, who undoubtedly represents the interest of the Central Trust Company in this respect, that this replevied property now in his possession is indispensably necessary to the operations of the road with which he is charged, and that an irreparable injury would be caused if he were to be dispossessed of that property. It comes to this: that the replevied property has not been returned into the custody and possession of the court for the purposes of the Evans suit and for the satisfaction of his decree, and that no attempt has been made to bring this about, and there is plainly no purpose to do it. Under the statute of Tennessee describing the character of replevin bonds in attachment cases (Code of Tennessee [Milliken & Vertrees', 1884], sec. 4250 et seq.), as construed by the Supreme Court of the State, the obligors are bound to surrender the property itself, and are not in a position to say, Syllabus. when called upon to do so, that the property was, at the time of the giving of the bond, subject to a lien in their own favor, in virtue of which they have since seized and will now hold it. In order to assert the rights which they had by way of lien they must resort to other remedies than that of giving a replevin bond. Having taken this course, they must abide by their obligation. It has been distinctly held that they cannot set up in answer to their obligation a right to the property in some third person, or in themselves (Smythe v. Barbee, 9 Lea [Tenn.], 173; Cheatham v. Galloway, 7 Heiskell, 678; Stephens v. Greene County Iron Company, 11 Heiskell, 711), and the stipulation in these bonds could not be satisfied by the tender of a mere right of redemption which has, in substance and effect, already expired or ceased to be of any value. It is unnecessary to pursue the subject further. The order of the court denying the injunction was clearly right, and it must be Affirmed; and it is so ordered. JONES v. LYERLY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DIVISION OF THE EASTERN DISTRICT OF TENNESSEE. Each of the principals in a replevin bond executed under the provisions of the statute of Tennessee is individually bound to protect the sureties therein, and the sureties are not obliged to wait until after they have paid the debt, but may proceed in equity to compel the principal or prin cipals to pay it as soon as their liability becomes fixed. This appeal involves another litigation upon a branch of the same subjectmatter to which the case last reported related. A short time prior to the date when the court below made the order refusing an injunction from which the appeal in that case was taken, upon the application of the sureties in the replevin bonds which had been given to release the property of the railroad company from attachment, it ordered that the receiver should show cause why he should not pay the decrees against the sureties in favor of E. and other judgment creditors of the railroad company, and, upon the coming in of the answer of the receiver, entered Statement of the Case. an order that the receiver should pay the decrees out of any money available in his hands, or, if not in funds for such purpose, that he report to the court within a reasonable time his inability to do so and his suggestion as to the best method of raising funds for such purpose. The receiver appealed on the grounds that the order directed him to appropriate assets in his hands which were subject to the lien of the mortgages under foreclosure in the suit in which he had been appointed to the payment of debts of general creditors whose claims had already been adjudged to be subordinate to the mortgage liens created by the railroad company (Chattanooga, Rome and Columbus Railroad Company v. Evans, 31 U. S. App. 432), and that the court below should have refused to entertain the application of the sureties, because it had jurisdiction of the foreclosure suit merely as ancillary to the jurisdiction of the Circuit Court of the United States for the Northern District of Georgia, which was primary, in respect to the main question contending that, inasmuch as the claims of E. and others, obligees in the replevin bonds, were claims at large without lien, and the sureties in the replevin bonds upon satisfying the decrees would, as it was assumed, stand simply in the place of creditors, they would stand with claims subordinate to the lien of the mortgages, and therefore would not be entitled to have the assets covered by the mortgages diverted to the satisfaction of their claims. Held, (1) That the claim of the sureties in the replevin bonds was of a different character from that of the creditors whose decrees they were required to satisfy, because their liability was incurred upon the call of the trust company for the purpose of preserving the fund which would ultimately be appropriated for the payment of the mortgage debt, and not for the purpose, so far as appeared, of protecting any interest of their own; (2) that the trust company, though not an obligor in the bond to release the attachment of certain of the creditors, as it was in the bond to release E.'s attachment, but being a defendant in the suit of such creditors, and the bond in the case of such creditors, as well as in E.'s case, having been given in its interest, stood equitably in the same relation of principal to the sureties in that bond as well, and as such was bound to protect the sureties; (3) that the order appealed from must be affirmed; and (4) that, under the circumstances of the case, the court below would not have been justified in refusing to continue to exercise its jurisdiction to complete relief. Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge. This is an appeal from an order made by the court below directing Eugene E. Jones, as receiver of the property of the Chattanooga, Rome and Columbus Railroad Company, the appellant, to pay off and discharge the decrees entered by the VOL. XLIII-15 |