Deshler v. Dodge
57 U.S. 622 (1853)

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U.S. Supreme Court

Deshler v. Dodge, 57 U.S. 16 How. 622 622 (1853)

Deshler v. Dodge

57 U.S. (16 How.) 622

Syllabus

The eleventh section of the Judiciary act of 1789 says

"Nor shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made except in cases of foreign bills of exchange."

This clause has no application to the case of a suit by the assignee of a chose in action to recover possession of the thing in specie, or damages for its wrongful caption or detention.

Therefore where an assignee of a package of bank notes brought an action of replevin for the package, the action can be maintained in the circuit court, although the assignor could not himself have sued in that court.

This was an action of replevin brought by Deshler, a resident and citizen of the State of New York, against Dodge, a citizen and resident of the State of Ohio.

The proceedings in the case were these:

In March, 1853, Deshler filed in the Circuit Court of the United States for the District of Ohio the following praecipe and affidavit.

"Praecipe. Issue a writ of replevin for the following goods and chattels, to-wit, a quantity of bank bills of various denominations, consisting of fives, tens, twenties, and fifties, given for the payment, in the aggregate, of the sum of ten thousand five hundred and eighty dollars, being the same bank bills taken by the said George C. Dodge, from the City Bank of Cleveland on the 26th day of March, 1853. Also another quantity of bank bills of various denominations consisting of ones, twos, threes, fours, fives, tens, twenties, fifties, and hundreds and given for the payment, in the aggregate, for the sum of seven thousand nine hundred sixty-five dollars, being the same bank bills taken by the said George C. Dodge, from the Merchants Bank of Cleveland on the 26th day of March, A.D. 1853. Also another quantity of bank bills of various denominations, consisting of ones twos,

Page 57 U. S. 623

threes, fives, tens, twenties, fifties, and hundreds, and given for the payment, in the aggregate, of the sum of nine thousand two hundred and sixteen dollars, being the same bank bills taken by the said George C. Dodge from the Canal Bank of Cleveland on the 26th day of March, A.D. 1853. Also another quantity of bank bills of various denominations, consisting of ones, twos, threes, fives, tens, twenties, fifties, and hundreds, and given for the payment, in the aggregate, of the sum of eleven thousand two hundred and twenty dollars, being the same bank bills taken by the said George C. Dodge, from the Commercial Bank of Cleveland, on the 26th day of March, A.D. 1853."

"Affidavit. John G. Deshler, plaintiff in the case in the annexed praecipe named, being first duly sworn, does depose and say that he has good right to the possession of the goods and chattels described in the annexed praecipe, and that the same are wrongfully detained by the said George C. Dodge, named as defendant in the said praecipe, and that the said goods and chattels were not taken in execution on any judgment against the said John G. Deshler, nor for the payment of any tax, fine, or amercement assessed against the said Deshler, nor by virtue of any writ of replevin or any other mesne or final process whatsoever issued against the said Deshler. Said Deshler further makes oath and says, that he is a citizen and resident of the State of New York, and that the said George C. Dodge is a citizen and a resident of the State of Ohio."

"U.S. America, District of Ohio, ss. JOHN G. DESHLER"

The writ was issued accordingly, and served by the marshal. The property was appraised at $38,592. Deshler gave the usual replevin bond.

At April term, 1853, Dodge made the following motion:

"And now comes the said George C. Dodge, by R. P. Spalding, his attorney, and moves the court for a rule on the plaintiff to show cause, during the present term, why the said suit should not stand dismissed for all and singular the reasons following, to-wit: "

"1st. Because there is no sufficient affidavit filed by plaintiff as a predicate for the writ of replevin."

"2d. Because it does not comport with sound public policy that any portion of the revenue of the state should be arrested, at the instance of the taxpayers or other person for his benefit, and taken from the hands of the collector through the instrumentality of the writ of replevin."

"3d. Because the several bank bills in the writ specified were assigned to the plaintiff by said several banks in the City of Cleveland for the sole purpose of instituting suit in this court. "

Page 57 U. S. 624

"4th. Because said assignment from said banks to said John G. Deshler was colorable merely, and operates as a fraud upon the Act of Congress of September 24, 1789, establishing the judicial courts of the United States."

"5th. Because this court is debarred taking jurisdiction of this case by a provision contained in the eleventh section of said Act of Congress of September 24, 1789, in the words following:"

" Nor shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of any assignee unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange."

"It being admitted, for the purposes of this motion, that the said John G. Deshler derived all his right to said bank notes from an assignment in writing made to him by the Commercial Bank, the Merchants Bank, the City Bank, and the Canal Bank of Cleveland, all corporate bodies in the State of Ohio, after the seizure of the said bank bills by the said George C. Dodge, as Treasurer of Cuyahoga County, to satisfy sundry taxes assessed against said banks."

"R. P. SPALDING"

"Attorney for defendant"

In August, 1853, the court overruled the motion, but permitted the defendant to set up the same matter, by plea.

At the same term, the plaintiff, Deshler, filed his declaration, and Dodge filed the following plea:

"And the said George C. Dodge, in his own proper person, comes and says that this court ought not to have or take further cognizance of the action aforesaid, because he says that on the day and year in the said declaration mentioned, to-wit, on the twenty-sixth day of March in the year one thousand eight hundred and fifty-three, he, the said George C. Dodge, was acting as Treasurer of the County of Cuyahoga in the State of Ohio, and as such treasurer on the day and year last mentioned, at Cleveland, in the County of Cuyahoga aforesaid, held in his hands for collection the tax duplicate of said County of Cuyahoga, for the year one thousand eight hundred and fifty-two, upon which tax duplicate sundry large amounts of taxes stood assessed against the several banks in the plaintiff's declaration mentioned, to-wit, against the City Bank of Cleveland, the Merchants Bank of Cleveland, the Canal Bank of Cleveland, and the Commercial Bank of Cleveland, which said taxes, with a large amount of penalty thereon, were then due and unpaid, and it then and there became, and was the official duty of the said George C. Dodge, as such treasurer, to distrain a sufficient amount of bank bills belonging to said banks and in their possession,

Page 57 U. S. 625

respectively, to satisfy the said taxes and penalties, amounting in the aggregate to a large sum of money, to-wit, to the sum of thirty-eight thousand nine hundred and eighty-one dollars. And the said George C. Dodge did in fact, then and there, to-wit, on the 26th day of March, in the year one thousand eight hundred and fifty-three, at the City of Cleveland, in the County of Cuyahoga aforesaid, enter into said banks and take and distrain from them, respectively, the amount of taxes and penalty as aforesaid, to-wit: from the City Bank of Cleveland he took and distrained the sum of ten thousand five hundred and eighty dollars in bank bills of various denominations, consisting of fives, tens, twenties, and fifties, the same being at the time said distress was made the exclusive property of said City Bank of Cleveland. From the Merchants Bank of Cleveland he took and distrained the sum of seven thousand nine hundred and sixty-five dollars in bank bills of various denominations, consisting of ones, twos, threes, fours, fives, tens, twenties, fifties, and hundreds, the same being at the time said distress was made the exclusive property of said Merchants Bank of Cleveland. From the Canal Bank of Cleveland he took and distrained the sum of nine thousand two hundred and sixteen dollars in bank bills of various denominations, consisting of ones, twos, threes, fives, tens, twenties, fifties, and hundreds, the same being at the time said distress was made the exclusive property of said Canal Bank of Cleveland. And from the Commercial Bank of Cleveland he took and distrained the sum of eleven thousand two hundred and twenty dollars in bank bills of various denominations, consisting of ones, twos, threes, fives, tens, twenties, fifties, and hundreds, the same being at the time said distress was made the exclusive property of said Commercial Bank of Cleveland. And the said George C. Dodge, having thus then and there taken and distrained said bank bills, being all and singular the bank bills in the plaintiff's declaration set forth and described, immediately, to-wit, on the twenty-sixth day of March, in the year one thousand eight hundred and fifty-three aforesaid, removed said several bank bills from said several banks, respectively, to a place of security, to-wit, to the vault of the Cleveland Insurance Company, where the same were specially deposited by the said George C. Dodge, and where the same in fact remained to the credit of the said George C. Dodge as a special deposit, until they were afterwards seized and taken by force of the writ of replevin issued at the instance of the said John G. Deshler, plaintiff in this suit."

"And the said George C. Dodge further saith that on the same twenty-sixth day of March, A.D. 1853, but after the said George C. Dodge had so as aforesaid distrained, and taken away from

Page 57 U. S. 626

the possession and keeping of the said several banks herein before mentioned, the said bank bills above mentioned, and after he had deposited the same for safekeeping in the vault of the Cleveland Insurance Company in manner aforesaid the said several banks above mentioned, all of which were incorporated by the laws of the State of Ohio to transact a general banking business in said City of Cleveland, in the County of Cuyahoga aforesaid, and not elsewhere, and all of which in fact were at the time said taxes were assessed, and at the time the said bank bills were so as aforesaid distrained for the payment of said taxes, transacting a general banking business in the City of Cleveland aforesaid, entered into an arrangement with the said John G. Deshler, the plaintiff in this suit, who claims to be a citizen and resident in the State of New York, whereby the said several banks, by written instruments of assignment, bearing date on the said twenty-sixth day of March, A.D. 1853, and executed in behalf of said banks by their cashiers or other agents duly authorized by the directors of the same, sold, assigned, and transferred to the said John G. Deshler, plaintiff in this suit, all and singular the bank bills so as aforesaid taken and distrained by the said George C. Dodge, and which said bank bills were, by the express terms of said several assignments in writing, declared to be then, and at the time of the execution of said several instruments of assignment, in the possession of George C. Dodge, Treasurer of the County of Cuyahoga, in the State of Ohio."

"And the said George C. Dodge further saith that before and at the time of the taking and distraining said several bank bills for the payment of said taxes and penalties assessed as aforesaid against said several banks, he, the said John G. Deshler, had no right of property in, or claim to, the possession of said several bank bills whatsoever, but that all the pretended right, interest, and claim of the said John G. Deshler thereto arose under and by virtue of said several instruments of assignments, executed and delivered long after said bank bills had been taken and distrained by the said George C. Dodge, as treasurer as aforesaid, in satisfaction of the taxes and penalty so due as aforesaid from said banks, and while the said bank bills were on special deposit in the vault of the said Cleveland Insurance Company to the credit of the said George C. Dodge, treasurer as aforesaid. And the said George C. Dodge further saith that he is a citizen of and resident in the State of Ohio, and was such at the time when this suit was instituted, and that all and singular said banks are corporate bodies of said State of Ohio, and have not now and never had any legal existence except within the limits of said state. And so the said George C. Dodge pleads, and

Page 57 U. S. 627

says, that said supposed causes of action are not within the jurisdiction of this court, and this he is ready to verify; whereof he prays judgment whether this Court can or will take further cognizance of the action aforesaid."

"GEORGE C. DODGE"

This plea was verified by affidavit.

The plaintiff demurred to this plea, when the court overruled the demurrer and sustained the plea upon the ground

"that the matters therein contained are sufficient in law to preclude the said Deshler from having and maintaining said action against the said Dodge in this Court, and that the court has no jurisdiction of the same."

Deshler sued out a writ of error, and brought the case up to this Court.

Page 57 U. S. 630

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