Pickering v. Day

ad litem,.—The first question presented to the Court for its decision in this case is, whether' Charles H. B. Day, the defendant, consented to the use of the money collected by Clements as Deputy Collector, by the said Clements, or the firm of John F. Clements & Co., in their business of grain buying and speculating, as charged in the bill of complaint. For if such was the fact, it was a wrongful act of the defendant not communicated to, or assented to, by the sureties of Clements, and the consequences of such ivrongful act of the defendant must and ought to fall upon the party committing it. Is such consent of the defendant to the use of the public money proved in this case ? The allegations in the bill on this point are founded solely on information communicated to the complainant and his co-sureties by J. F. Clements after the 10th day of August, 1865, the day of the conference at Day’s office, in Dover, if we except the fact that many of Clement’s payments to the defendant were made' by drafts, drawm by J. F. Clements &>Co., on their factors in Hew York and Philadelphia, to whom they had consigned grain, which is alleged in the bill to be corroborative evidence of the truth of the information furnished by Clements. The answer persistently and unequivocally denies any such consent by the defendant. The answer is clearly responsive as to this point, and, to quote from an authority cited by one of the solicitors for the complainant while discussing the question now under consid

For the sake of the argument, let it be admitted that the testimony of Clements is positive and direct as to the consent of the defendant. How is his testimony on this point to be reconciled with the testimony of John H. Bate-man, a witness for the defendant, in which Mr. Bateman testifies that he was present at a conversation between the defendant and Clements, in which Clements, among other things, told Day that “ if navigation had not closed he

A draft on a Philadelphia or Hew York commission merchant, in good standing, answered the purposes of the. defendant as well as a check on a Philadelphia bank. Mr. Clements was in the grain business before and at the time of his appointment as Deputy Collector, and this was

Having disposed of that question, we will now consider whether the amount, as shown by the books of the defendant to be due from Clements to the defendant on the 10th day of August, A.

The answer then states the circumstances and purposes for which the checks were given to the defendant; the check of $225.62 being given in payment of a note of William L. Hansel & Co., of Philadelphia, against John F. Clements, which note had been sent to FT. B. Smithers, Esq., for collection, but which he, on his departure from Dover, to take his seat as a member of Congress, had left with the defendant to be collected from John F. Clements ; and that the check for $2,000 was given to the defendant in payment of money loaned by the defendant to Clements.

It is admitted in the written agreement of the solicitors for both parties, that the check for $225.62 was given to the defendant for the purpose stated in the answer, and no deduction from the amount shown due from Clements, as Deputy Collector, on the 10th day of August, 1865, is now claimed on account of said check. FTotbing is admitted by the solicitors in relation to the chéck for $2,000 above mentioned, and it is for the Court to decide upon the evidence in this cause whether the check for $2,000, dated April 7th, 1865, was a payment made to the defendant by Clements in the course of his business as Deputy Collector, or whether it was a payment made to Day for money by him loaned to John F. Clements. On this point there is but little room to doubt, and nothing is left for conjecture. The answer of the defendant in relation to this matter, is direct and positive, and is corroborated

I am, therefore, of opinion that the checks referred to ought not to be credited on the account of the defendant against Clements as Deputy Collector, and that no deduction from the amount shown due from Clements as Deputy Collector by the books of the defendant on the 10th day of August, 1865, ought to be made for or on account of the money received by the defendant on the said two checks, or either of them.

We are next brought to consider whether the complainant and his co-sureties are properly chargeable for any moneys collected by said Clements, as Deputy Collector, on taxes against the manufacturers of molasses from sorghum, and whether the amount shown due from Clements, as Deputy Collector, on the 10th day of August, 1865, ought to be abated or diminished by the amount admitted by the defendant in his answer to have been collected by Clements on taxes against the manufacturers of molasses from sorghum. This raises the question whether the defendant, as the Collector of Internal Revenue for the District of Delaware or John F. Clements, as his Deputy Collector, had any authority by law to collect any tax assessed on the manufacture of molasses from sorghum ? The bill alleges that neither the defendant nor his Deputy Collector had any lawful' authority to collect such tax, while the answer avers that the defendant and his Deputy Collector had such lawful authority.

By Section 94 of the act aforesaid it is provided: “ That “ upon the articles, goods, wares, and merchandise hereinafter mentioned, except where otherwise provided, “ which shall be produced and sold, or be manufactured “ and sold, or be consumed or used by the manufacturer “ or producer thereof, or removed for consumption or “ for delivery to others than agents of the manufacturer “or producer within the United States or Territories the “ of, there shall be levied, collected and paid the following “ duties, to be paid by the producer or manufacturer there- “ of, that is to say,”—then follows the enumeration of certain articles, goods, wares and merchandise, and among others is, “ molasses, produced from the sugar cane,” and not from sorghum or imphee, “ a duty of five cents per gallon.”

It is evident from the language here used that molasses made from sorghum or imphee is not subject to the specific duty of five cents per gallon; for it is, by positive words, expressly excepted from the duty of five cents per gallon; nor is molasses made from sorghum or imphee expressly, by words, taxed in the act. In a subsequent part of the same section occur these words: “ On all manufactures of cotton, wool, silk, worsted, flax, hemp, jute, in- “ dia rubber, gutta-percha, wood, willow, glass, pottery- “ ware, leather, paper, iron, steel, lead, tin, copper, zinc, “ brass, gold, silver, horn, ivory, bone, bristles, wholly or “ in part, or of other materials, not in this act otherwise

To this I cannot assent; and as molasses made from sorghum is not exempted from tax by Section 96, or any other section of said act, I am of opinion that under the provisions of the act of Congress aforesaid, approved June 30th, 1864, molasses manufactured from sorghum or imphee is subject to a tax of five per centum ad valorem.

In this opinion I am strengthened by acts of Congress passed since June 30th, 1864; one approved March 3d, 1865, in which, by the first section thereof, Section 96 of

The answer, of the defendant in this case denies that any tax was collected from the manufacturers of molasses from sorghum after the passage of the act of March 3d, 1865;, and, as we have no proof on this point to the contrary, I am of the opinion that the tax collected by John F. Clements, as the Deputy Collector of the defendant, from the manufacterers of molasses from sorghum was collected under the authority of law, and that the amount shown by the books of the defendant to be due from Clements on the 10th day of August, 1865, orght not to be lessened or diminished for or on account of any money collected by Clements, as Deputy Collector, from the manufacturers of molasses produced from sorghum.

We are now brought to the consideration of the agreement entered on the back of the bond in the penal sum of $10,000, in which the complainant is one of the sureties, and the effect of such agreement; and in the consideration of this question the principles of law as to the appropriation of payments will necessarily be involved. The agreement is in the following words, viz: “August 10th, 1865. We agree that the true amount due on this “ bond is the sum of seven thousand six hundred and “ eighty dollars and thirty-eight cents, with interest from June 30th, 1865. Witness our hands and seals.”

This agreement was signed and sealed by John F. Clements, the principal in said bond, and by each of the sureties therein named, in the "presence of E.

It appears that upon the suggestion of the defendant, made to Daniel L. McBride, one of the sureties in the bond in the penal sum of five thousand dollars, on the ninth day of August, 1865, John F. Clements and all his sureties in each of the bonds on the 10th day of August, 1865, met in the office of the defendant, in Dover, about one o’clock in the afternoon of that day. The accounts of the defendant with said Clements, as Deputy Collector, which had been balanced, as of June 30th, 1865, were shown to Clements, and assented to by him as correct. The balance then shown to be due from Clements,as Deputy Collector, was the sum of eleven thousand five hundred and twenty dollars and fifty-seven cents,-with interest from June 30th, 1865. Clements, being asked by one of the sureties what he proposed to do, replied that he was broken and could not pay; and he then offered to the defendant a bill of sale, signed by himself and partner, for three-fourths of a certain vessel,being their interest therein, for the consideration of $1,800. He also proposed to assign to the defendant certain other partnership effects. A discussion arose between the defendant and the sureties relative to these proposed transfers. Mr. Smithers was sent for, who came and expressed doubts as to the validity of the assignment of the partnership property as against the creditors of the firm of John F. Clements & Co. The sureties urged the defendant to enter the bonds against John F. Clements and issue execution, so as to secure for their benefit all that might be realized from the individual property of Clements before his other creditors had learned of his failure. The defendant remarked that as the amount then due from Clements, as Deputy Collector, was larger than the penalty of either of the bonds it was n§Q@gsary that they should agree among themselves what

Another question then arose, namely, whether the bond in which the complainant was a surety was security for any other taxes collected by Clements than those which were assessed according to the rates prescribed by law existing at the time of the execution of that bond.

It does not appear, from any evidence in this case, that either Mr. Smithers or Mr. Saulsbury was, at that time, consulted professionally relative to this matter; but it

Such being the circumstances immediately connected with the execution of the agreement indorsed on the bonds and of the agreement to refer all matters of difference between the sureties themselves to arbitration, let us consider whether there was any consideration ibr the agreement indorsed on the bond in the penal sum of $10,000, or, in other words, whether there was anything due from John F. Clements, as Deputy Collector of Division Flo. 4, under the bond in the penal sum of $10,000. It was contended by the solicitor for the complainant that the bond in the penal sum of $10,000, in which the complainant was a surety, and which was executed sometime in the month of October, 1863, was security for the faithful execution by Clements of the duties of his office of Deputy Collector, and for thepayment by him of all taxes by him collected.,

The solicitor for the defendant admitted, for the sake of this case, such to be the law.

In considering the case, therefore, I shall do so on the hypothesis that the principle of law, as above stated by the solicitor for the complainant and assented to in this ease by the-solicitor for the defendant, is correct, and I shall assume such to be the settled law. It was further contended in the argument for the complainant, that as the bond in which the complainant was a surety was only liable for the taxes which were assessed at the rates prescribed by the act of Congress, approved July 1st, 1862, and not for any taxes which were assessed at rates prescribed by any law passed since October, 1863, and as Clements had made several payments to the defendant which neither he nor the defendant had appropriated, the law would apply these several payments of Clements in discharge of the lists of taxes which were first delivered to him for collection, after his appointment.as Deputy Collector of Division Ho. 4; and as all the payments made by Clements since October, 1863, are equal, if not in excess of the amount of the lists of the taxes assessed at .the rates prescribed by the act of Congress, approved July 1st, 1862, nothing remained due from Clements on the bond in which the complainant was a surety, and consequently there was no basis or consideration for the agreement indorsed on this bond.

The general rule of law as to the appropriation of payments is, that the debtor has the right, if he pleases, to make the appropriation; if he omits it the creditor may. make it; if both omit, the law will apply the payments

This general rule, however, like most general rules, is subject to exceptions. In my opinion the present case is an exception to' the general rule; and the rule above quoted is not, I think', applicable to the case before us. In the ease of Stone vs. Seymour and Bourk, 15th Wendall, 19, decided by the' Court of Errors of the State of Kew York, the doctrine. as to the appropriation of payments was very much considered and discussed by the Court; and it was held in that dose, that where payments were made by a Collector of tolls, after a new bond, with new sureties, was given by him, and there were no directions to appropriate, or circumstances from which an intention on the part of the Collector to appropriate such payments to any particular items of .indebtedness could be inferred, and the moneys, when received by the accounting officer, were placed generally to the credit of the Collector, on the general account kept with him, the sureties in the first bond were not entitled to credit for the payments made subsequent to the execution of the second bond—the new sureties being entitled to the benefit of such payments to countervail the claims existing against the Collector for moneys received by him as tolls after the accruing of their liability.■; In the case of The United States vs. January and Patterson, 7th Cranch, 572, it was held that where the receiver is a public officer, not interested in the event of the suit, and whoheceives on account of the United States; where the payments are discriminately made; and where different sureties, under distinct obligations, are interest

In that ease the Supervisor had kept one account only against the Collector, and the Supervisor had promised the sureties in the first bond to apply the payments made by the Collector to the first bond, and if all the payments made by the Collector had been so applied, the first bond would have been discharged; yet the Court held that such promise of the Supervisor did not bihd the United States,and the Court would not apply thejpayments made, after the execution of the second bond to the first in discharge thereof. .

In the case of The United States vs. Echjord’s executors, 1st Howard, 250; and in the case of Jones vs. The United States, 7th Howard, 681, the rule laid down by the Court in the case of The United States vs. January and Patterson was commented on and reaffirmed; and in the case of Jones vs. The United States, above cited, the Supreme Court of the United States used this language: “In instances of official “ bonds, executed by the principal, at different times, with “ separate and distinct sets of sureties,this Court has settled “ the law to be that the responsibility of the separate sets “ of sureties must have reference to, and be limited by, the “ periods for which they respectively undertake, by their “ own contract, and that neither the misfeasance nor non- “ feasance of the principal, nor any cause of responsibility “ oceuring within the period for which onp.set of sureties “have undertaken, can be transferred to the period for “ which alone another set have made themselves answer- “ able.” Upon sound policy and justice to the different sureties in the two bonds given by Clements to the defendant

For, in the view which I take'of this matter, the entry indorsed on the bonds is an appropriation of the payments which had been made by Clements, as Deputy Collector, towards each of the bonds, and a division between the two sets of sureties of the amount of the defalcation of Clements, and an ascertainment of the amount for which each set of sureties was liable, so far as the defendant himself was concerned; but as between themselves the proportion which each set was to contribute, with other questions of difference among themselves, was, by an agreement of the sureties entered into at the same time with the indorsements on the bonds, referred to the amicable decision of arbitrators chosen by themselves.

Will this Court now disturb the agreement of the parties entered into on the 10th day of August, 1865, And reapply the payments which have been made by C lements ?

We have already stated briefly the most prominent facts immediately connected with the execution of the agreements on the bonds, as they appear from the evidence in the case. The answer positively denies that there was any-fraud, actual or constructive, on the part of the defendant, or that he withheld or misstated any facts within his knowledge, which it was material or essential for the sureties to know or understand before the signing by them of the indorsements on the bonds. What was the cause or inducement which led to the signing of the indorsements ?

This would necessarily have required some time. The sureties were very anxious to avoid all delay, lest other creditors might seize upon Clements’ property in advance of them. It is evident, as I think, that the cause or inducement that influenced the sureties to sign the indorsements on the bonds was, that by so doing the defendant would issue execution against Clements and thus save them whatever amount would be realized from his individual property before his other creditors could have execution against him. It was for the benefit of the sureties alone, and no advantage could have accrued to the defendant

It was contended, in the argument, that there were facts connected with this case of which the sureties, at the time of the conference in the office of the defendant, August 10th, 1865, were ignorant,and which, had they known,they would not have signed the indorsement on the bonds. But what facts are there, material or essential for them to have known, and which they then did not know or understand ? According to the view which I take of this case, the defendant never consented to the use of the public money by Clements, or the firm of John F. Clements & Co., or by any other person; no payments had been made by Clements, as Deputy Collector, which had not been properly credited to his account by the defendant; no payment from collections of taxes, assessed since the execution of the bond in the penal sum of $10,000, bad been applied by the defendant in discharge of Clements’ liability under the first bond in the penal sum of $15,000, and the tax which had been collected by Clements from the manufacturers of molasses from sorghum was, in my opinion, collected under proper authority of law. It is asserted, however., that the defendant concealed from the complainant the true state of the accounts of Clements, as Deputy Collector, and that such concealment amounts to constructive fraud on the part of the defendant.

The only evidence we have of any application by the complainant to the defendant for information as to the accounts of Clements, is the conversation which is stated in the answer to have occurred in the early part of June, 1865, on the street, in Dover, as the defendant was going to the Farmers Bank. In that conversation I can discover no misstatement or concealment on the part of the defendant.

It is true, the defendant did not inform the complainant

It is further contended for the complainant that the sureties, on the 10th day of August, 1865, were ignorant that the defendant had not been reappointed to his office, and had not given new bond since the passage of the act of Congress,'approved June 30th, 1864, and that Clements had not been reappointed Deputy Collector since the approval of said act.

These questions will be considered hereafter, and all I propose to say at this time relative to these'points is that, assuming the law to be settled that the bond in which the complainant is a surety is only liable for the taxes imposed by law as the law existed at the time of the execution of that bond, it was not, in my opinion, essential or material for the complainant or his co-sureties to have known these facts at the time they executed the agreement indorsed on their bond. In 1st Story’s Equity Jur. Section 157, the author, commenting on the evidence on which a court of

Is there, in this case, a plain mistake of facts (for it is admitted in the argument that a mistake in law alone will not be sufficient ground to afford relief, and such is the well settled law) on the part of the complainant and his co-sureties clearly made out by proof satisfactory to the Court ? I think not.

The parties were together, at the office of the defendant, on the 10th day of August, 1865, from five to seven hours. The books and accounts of the defendant with Clements, ■as Deputy Collector, were open to the inspection and examination of all concerned; the defendant was present, •ready to make any exhibition and explanation of the accounts that might have been required of him. Discussions arose, between the sureties as to the extent and amount of their liability under their respective bonds. Eminent counsel were sent for and came, and could have furnished any legal information which the parties might have desired in reference to the matter then before them. These counsel remained until the close of the conference. Clements was present; and, if the answer is to be credited, examined the accounts and assented to them as correct.

■ ■ Eo concealment or . misrepresentation of any fact was made by the defendant on that occasion, if the evidence before us is to be believed. Will the Court, maturely .considering all the facts and circumstances- which have been proved in this case, interfere with this agreement, executed on the back of the bond with so much solemnity and after such serious consideration ? I think not. Eor, according to the view which I take of this case, will the different sets of sureties in the bond be aggrieved by the

If, therefore, the amount indorsed on the bond in which the complainant is a surety is larger than it ought to be, the complainant and his co-sureties can call upon the sureties in the bond in which McBride is a surety for contribution ; and vice versa if the amount indorsed on the bond in which McBride is a surety is more than it ought to be, he and his co-sureties can call upon the complainant and his co-sureties for contribution.

This agreement between the sureties themselves was not only proper but eminently wise and judicious under the circumstances.

In the anxiety and haste of the sureties to have an exe

The indorsement on the bonds and the agreement to refer to arbitration were one and the same transaction concurrent with and dependent on each other. For it is clearly proved, that if the agreement to refer to arbitration had not been signed by the complainant and his co-sureties, the indorsement on the bond in $5000 would not have been executed by McBride. If the Court is to disturb the indorsements on the bonds, it must also interfere with the agreement of reference; for, as before stated, they form parts of one entire transaction. Such an interposition by the Court would destroy the arrangement made by the different sets of sureties amicably to settle all matters of difference between them arising out of their suretyship. After a careful consideration of the agreement on the bonds and the agreement to refer to arbitration, and of all the facts and circumstances connected therewith, I am of the opinion that this Court ought not to disturb or interfere with either the agreement indorsed on the bonds or the agreement of the sureties to leave their matters of difference to reference for amicable adjustment.

It was contended, however, that the defendant in this case ought to have discharged Clements from his office as Deputy Collector as soon as he learned of the use by Clements of the public money, which, by the answer, is

Shall it now be said that, because an act has been committed which the complainant andhis co-sureties had given bond should not be done, he and they should be discharged from all liability after the act committed ? It was a breach of the condition of the bond that Clements did not pay over the taxes whenever he was required to do so by the defendant; yet it appears by the answer that it frequently happened that Clements did not pay over when he was required to do so.

Would it be pretended that because Clements did not pay at the very first time he was required to pay he should have been discharged from his office by the defendant, and that the sureties are not to be held liable for subsequent misconduct of Clements ? If not in the one case, how can it be in the other? The use of the public money by Clem

There is no provision of law requiring that a Deputy Collector should be removed under such circumstances; nor was it any part of the contract of the complainant and his co-sureties with the defendant. I can discover no wrong or injury done or committed to the complainant and his co-sureties in this case by the continuance of Clements, as Deputy Collector,after the defendant had learned of the use by him of the public money. On the contrary, it seems that the complainant and his co-sureties were benefited by his being continued in office ; for, as before stated, the indebtedness of Clements, as Deputy Collector, to the de

I am of the opinion that the continuance of Clements as Deputy Collector and the delivery to him of new lists of taxes for collection, after the defendant had been apprised of the improper use by Clements of the public money, are not sufficient grounds for the discharge of the complainant and his co-sureties from any of the liability under the aforesaid bond.

I now propose to consider the necessity of the defendant in this case giving new bond after the passage of the act of Congress of June 30th, 1864. I will first premise, however, by stating that, according to the view which I take of this case, and as hereinbefore expressed, I do not think it incumbent on the Court to express an opinion on the question before us in the present case. But as this point was pressed with great force, and argued with much ability by one of the solicitors for the complainant, and as it is a vital point in the case of McBride vs. this defendant, in which case I do not propose to give a written opinion, I feel it my duty here to express, in writing, my views in relation thereto. It was contended by the solicitor for the complainant, that Section 173 of the act of Congress of June 30th, 1864, repealed the act of July 1st, 1862, entitled, “ An Act to provide internal revenue to support thé “ Goverment and pay interest on the public debt,” under which the defendant was appointed Collector of Internal Bevenue for the District of Delaware, except certain portions thereof, which are expressly saved by the repealing section; that the effect of such repeal, except as to the savings, is a complete deletion or wiping out of the act

Was it the intention of Congress, to be gathered from the words last above quoted, to require that every collector who had been continued in office by the saving clauses of Section 173 should give a new bond béfore he could lawfully perform any of the duties which devolved upon him under the provisions of the Act of June 30th, 1864? The "words are that “ before any collector shall enter upon the duties of his office, he shall,” &c. The. words “ any collector” certainly are broad, and taken by themselves would

The whole argument of the solicitor for the complainant, who pressed this point with so much earnestness upon the Court, was based on the assumption that by the repeal of the act of July 1st, 1862, the defendant was out of his office of Collector, and had to commence anew; find the illustrations referred to by him under the statutes of our own State were cases in which a failure to give bond within the time prescribed were by the terms of the .law itself ipso facto a forfeiture of office. In the present case, as we have before seen, the office and officer were both continued by the savings aforesaid. In the case of the Bank of the United States vs. Dandridge, 12 Wheaton, 64, it was held that where a cashier was duly appointed and permitted to act in his office for a long time under the sanction of the directors, it was not necessary that his official bond should be accepted by the Board of Directors as satisfactory according to the terms of the charter in order to enable him to enter legally upon the duties of his office. In that case one of the fundamental articles of the charter required that each cashier or treasurer, before he enter on the duties of his office, should give bond, with two or more sureties, to the satisfaction of the directors, in a sum not less than $50,000,with a condition for his good behavior and the faithful performance of his duties to the corporation. The Supreme Court of the United States say that the

It will be seen that the words in the fundamental article of the bank charter are very similar, and certainly as; strong as the language in Section 9 of the act of June 30th, 1864. In the case of The United States vs. Vanzandt, heretofore cited on another point, the language of the act of Congress requiring the recall of a paymaster who failed to render his accounts for settlement to the paymaster general within the time prescribed by said act was equally as sti-ong, if not stronger, than the language of said Section 9. Yet the same Court say, that this provision is merely directory to the officer, and intended for the security and protection of the goverment by insuring punctuality and responsibility; but they form no part of the contract with the surety. In the ease of The United States vs. Kirkpat rick:, above cited from 9 Wheaton, 720, the same principle is announced by the Court.

I can discern no difference,in principle, between the cases last above cited and the point now under consideration in this case; and from principle and adjudicated decisions of the Supreme Court of the United States and of other States, I think that the provision of Section 9 of the act of Congress of June 30, 1864, are directory only, and not conditions precedent, and.that such provisions were inserted in the said act for the benefit and protection of the Government. A contrary doctrine would place in the hands of the Secretary of the Treasury the power to clog the wheels of the Government and to destroy the whole machinery for the collection of the necessary funds to support the Government and pay the interest on the public debt.

And, although the consequences which might result should never influence a court to decide a case contrary

I do not think that Congress ever intended to place it in the power of any officer to throw the whole country into such a dilemma; nor do I think that the words of the act itself will sustain the construction given by the complainant’s solicitor.

It is to be presumed that the Secretary of the Treasury is acquainted with the duties of his office and with the laws relating thereto; and that if he considered it necessary for the defendant in this case to have given new bond after June 30th, 1864, he would have required one of him.

We know not what the condition of the official bond of the defendant may be; but it was competent for him and his sureties to have contracted for the faithful discharge of the duties of his office under the law as it then existed,- and under- all future laws that might be enacted by Congress. Such may be the condition of his official bond, and the Secretary of the Treasury may deem it sufficient. But, to lay aside all surmises and presumptions, I am of

I have now considered all the questions raised by the bill, answer, and proofs, which were necessary and material to be ’ considered by the Court for a correct decision of this case.

There were other grave points pressed upon the Court by the counsel, upon which I have not deemed it necessary to express an opinion, as I did not consider them material for me to decide upon, according to the view which I have taken of the case.

I have also expressed, as briefly as I could under the circumstances, and I know very imperfectly, some of the principal reasons which have influenced my mind in the conclusions at which I have arrived.

The case was ably argued at the bar, and pressed with much force and earnestness by the solicitors for both parties; and the learning exhibited in the arguments has materially assisted me in my consideration of the subject.

I have felt less embarrassment in deciding the case than I should otherwise have experienced if from my decision there were no appeal; but'if the complainant and his co-sureties feel themselves aggrieved by the conclusions to which I have arrived, they can seek their redress in another tribunal, where the decisions of this Court may be reviewed, and where the experience, learning and ability of the.

Let the injunction be dissolved, and a decree entered ■ accordingly.