[Reusens SCOTUS Case (1885)] JOHN C. RANKIN, JR, PRINTERS OF CONTLANGT GT. NM. V. IN. THE Supreme onrt of the Onited States. OcTroBER TERM, 1885. THE MrExicaAn NATIONAL Con- STRUCTION COMPANY, Plaintiff in Error, ! “Ss. GUILLAUME REUSENS, Defendant in Error. Brief on behalf. of the Plainti@ in Error, on mo- tion made by the Defendant in Error, for an order requiring further security, or to dismiss…

[Reusens SCOTUS Case (1885)] the plaintiff (Reu- sens) the amount of any judgment which may be recovered:in the action, not exceeding the sum of $29,000, with interest ; the performance of the con- ditions whereof was guaranteed by the Fidelity and Casualty Company, a New York corporation, in pursuance of the provisions of an act of the Legislature of the State of New York, entitled, ‘“An Act to f…

[Reusens SCOTUS Case (1885)] In addition to this security the Circuit Judge re- quired, and the plaintiff in error furnished, a bond for damages and costs in the sum of $5,000; the Circuit Judge personally examined the sureties, and thereafter approv ed the bond and signed the Cltation, : The undertaking of February 20, which secured the judgment had been given on an application to the Supreme Cou…

[Reusens SCOTUS Case (1885)] 3 preme Court of this State, or for further or other security, although the removal was perfected in May,1884, and a verdict was not rendered till June, 1885, and judgment was not entered thereon until August 12, 1885. POINTS. First. There is no pretence that the acceptance of the security was obtained by fraud,or that since its ac- ceptance circumstances have changed,…

[Reusens SCOTUS Case (1885)] Y., 458; but an examination of that decision will show that it has no application to this ase ; all the Court decided in that case, was that upon an appeal to the Court of Appeals of the State of New York, the appellee had a right to in- sist that the appellant should give an undertaking with two sureties, as required by section 1334 of the Code. The decision is based …

[Reusens SCOTUS Case (1885)] 688 requires that upon such an application the defendant must give an undertaking with at least two sufficient sureties. Sect. 690 provides that a plaintiff may except to ‘‘the sufficiency of the sureties, and that thereupon the sureties must justify, or a new undertaking be given with new sureties, who must justify in like manner as bail npon arrest. Srcr. 580 require…

[Reusens SCOTUS Case (1885)] | : It is obvious, therefore, that an undertaking given on an application to discharge an attachment (if excepted to, as it was in this case), requires ap- proval by a Judge, and is one ‘‘ whose sufficiency is made to depend upon the approval of a Judge,”’ and comes directly within the provisions of the first section of Chapter 486, Laws of New York, 1881, page 659, wh…

[Reusens SCOTUS Case (1885)] And this construction seems entirely in ac- cord with $579 of the Code, whereby a Judge was authorized to accept bail if the sureties jointly justified to the requisite amount. II.—The defendant in error, to farther support his claim, asserts that ‘‘ No method is provided in **the New York Code by which the sufficiency of ‘¢ the undertaking of the Fidelity Company coul…

[Reusens SCOTUS Case (1885)] As to the latter part of the assertion the Court will recollect that the case was removed only after the time to 6 appeal had eapired, and that the remedy by appeal to review the determination of the Supreme Court had been lost, or waived, by the defendant in error. III.—The very objection which is here urged against the validity of this undertaking and guar- -antee, w…

[Reusens SCOTUS Case (1885)] And it may be enforced as an agreement between a oe the parties. oe : Toles os. Adee, 84 N. Y., 222 (1881). Very clearly therefore the judgment in the Court below, was in the true and obvious sense of rule 29, * otherwise secured’ tothe extent of the undertak- ing given on the discharge of the attachment, and when the Court below, in the proper exercise of its discreti…

[Reusens SCOTUS Case (1885)] It is submitted that the judgment in this case being secured by the at- tachment of property, and later by the undertaking which was substituted for the property attached, does not come within that part of the rule which requires indemnity for the whole amount, but is. one of those cases wherein the rule requires indem- nity only in an amount sufficient to secure the s…

[Reusens SCOTUS Case (1885)] be construed to apply only to cases where the bond had been given for the value of property in the custody or control of the United States Circuit Court, and further only to such of these cases wherein the bond had been given to release prop- erty or proe oem Cr property seized under admir- alty process. We contend for a broader and more equitable construction, The pri…

[Reusens SCOTUS Case (1885)] which provides that after removal “ the cause shall then proceed in the same manner as if it had been originally commenced in said Circnit Court.” [t cannot be seriously contended that the fact that the undertaking was given while the cause was in the State Court, makes any difference, or that because of that fact the Unitéd States Court had any the less control over i…

[Reusens SCOTUS Case (1885)] law they would have been held to answer final judgment or decree had it been rendered by the Coart in which such suit was commenced; and all bonds, under- takings, or security given by either party in such suit prior to its removal, shall remain valid and | effectual, notwithstanding said removal.’’ | So that by the express provision of the statute the removal preserve…

[Reusens SCOTUS Case (1885)] These facts were proper for the consideration of the Circuit Judge when he determined upon the amount of the security necessary to indemnify the defendant in error on this writ; and this Court in Jerome vs. McCarter, 21 Wallace, 17, held in substance: that in the absence of fraud, the action of the Justice or Judge in accepting the 10 security within the statute and wi…

[Reusens SCOTUS Case (1885)] The motion for further security should be denied with costs, and under no circumstances can the writ of error be dismissed. | THEODORE F. H. MEYER, _Att’y for the Plaintiff in Error. Jos. H. CHOATE, Of Counsel. . _IN THE Supremedton of the Tuite Sates, THE MEXICAN NATIONAL Con- STRUCTION COMPANY, Plaintiff in Error, 0S. GUILLAUME REUSENS, Defendant in Error. Brief on b…

[Reusens SCOTUS Case (1885)] New York, and the sum of thirty thousand dollars then on deposit in the American Exchange National Bank in said city, to the credit of said plaintiff in error,was duly levied on by said Sheriff to secure said claim, interest and costs. — On or about the 11th day of February, 1884, said plaintiff in error duly appeared in said action by Theodore F. H. Meyer as its attor…

[Reusens SCOTUS Case (1885)] Section 687 of said Code is as follows: ‘‘The ‘defendant may, at any timeafter he has appeared ** in the action, and before final judgment, apply to the Judge who granted the warrant, or to the Court, for an order to discharge the attachment as to the whole or a part of the property at- “tached.” | | Section 688 of said Code is as follows: ‘* Upon such application the …

[Reusens SCOTUS Case (1885)] ‘ , The undertaking given by the plaintiff in error in this case was not an undertaking with two sure- ties as provided in section 688 of the New York Code, but was one executed by the Fidelity and diate cntehins AAR PbO NPA LEAN TAROT pA APRS, 3 Cusnalty Company of New York, pursuant to the provisions of an Act of the Legislature of the State of New York, passed June …

[Reusens SCOTUS Case (1885)] But this act shall not prevent a justification on the part of such com- pany through its officers, as required by law or other sureties.”’ | | A copy of this undertaking is annexed to the motion papers, and marked Schedule ‘ A.”’ It was allowed by one of the Justices of the Supreme Court of the State of New York, against the protest and objection of the plaintiff in er…

[Reusens SCOTUS Case (1885)] follows : ‘The Fidelity & Casualty Company of New ‘York, is hereby designated as a company duly ‘authorized and empowered by an Act of the Legislature of the State of New York, entitled ‘An Act to facilitate the giving of bonds required ‘by law,’ passed June 13th, 1881, to guarantee all bonds and undertakings required or permitted by law, conditioned for the faithful p…

[Reusens SCOTUS Case (1885)] ‘The secretary of said company shall transmit to the Justices holding the First General Term in the First Department, in each year, a statement *under oath, showing its financial condition on - the Bist day of December preceding said state- ment.”’ Thereafter a general demurrer to the complaint of the plaintiff in error, was interposed by the defendant | in error, and …

[Reusens SCOTUS Case (1885)] Whee- ler, sitting as Circuit Judge, and a jury, and a ver- dict was rendered in favor of the defendant in error and against the plaintiff in error for the sum of $27,708.05, and on or about August 12th,1885, judg- ment was entered against the plaintiff in error for the sum of $28.062.86, and notice thereof was on that day duly served upon the attorney for the plaintif…

[Reusens SCOTUS Case (1885)] First. This was an action at law and the judgment is forasum of money only, viz., for $28,062.86, en- tered August 12th, 1885, Under the 29th rule of this Court, promulgated December Term, 1867 (6 Wallace, V.), the defend- ant in error was therefore entitled to indemnity upon the writ of error. “Such indemnity, where the judgment or decree ‘is for the recovery of money…

[Reusens SCOTUS Case (1885)] At the time when.the undertaking gu: iranteed by the Fidelity Company was given in this case, the Court of Appeals of the State of New York had not ~ tiitiVtitm@en i... * 7 decided whether, where an undertaking was re- guired to be given with two sureties, an undertak- ing guaranteed by the Fidelity Company WAS a sufficient substitute therefor. The Court of Appeals has…

[Reusens SCOTUS Case (1885)] Justice Rapallo delivering the opinion of the Court of Appeals, says ‘The Code of Civil Procedure (section 1334) re- ‘quires that an undertaking on appeal to this Court be exeeuted by at least two sureties. The ‘appellant cannot himself sign as a surety. (Morss rs. Hasbrouck, 10 Abb., N. C., 407.) The Act of 1881 (chap. 486) does not repeal sec- “tion 1334. of the Code…

[Reusens SCOTUS Case (1885)] If it could, then the Act of 1881 ‘“would be applicable and would authorize the ‘Judge to give the approval; but there is no law “which declares either the approval of a judge or ‘the guaranty by a corporation, equivalent to two ‘sureties, We therefore, conclude that the un- ‘*dertaking before us, being executed only by the ‘arvpe iantand the Fidelity and Casualty Comp…

[Reusens SCOTUS Case (1885)] 3 No method is provided in the New York Code by which the sufficiency of the undertaking of the Fidelity Company could be presented to the Court of Appeals ; and even if there liad been any way of presenting the question to that Court, this case was removed by the plaintiff in error to the United States Cirenuit Court before sneh question could have been disposed of. T…

[Reusens SCOTUS Case (1885)] actions, ‘‘replevin, and in suits on mortgages; or where ‘‘the property is in the custody of the Marshal, ‘* under admiralty process, as in case of capture or ‘* seizure ; or where the proceeds thereof, or a bond ** for the value thereof, isin the custody or control ‘* of the Court, indemnity in all such cases is only “required in an amount sufficient to ¢:cure the “su…

[Reusens SCOTUS Case (1885)] (a4.) It may be claimed that the latter part of the 29th rule provides for three distinct classes of Cases, V1Z.: A (1.) ‘** Where the property in controversy ne- ‘‘ cessarily follows the event of the suit, asin ‘real actions, replevin and in suits on mort- ** gages, : | (2.) “* Where the property is in the custody of ‘the Marshal under admiralty process, as ‘‘ in case…

[Reusens SCOTUS Case (1885)] It is not an undertaking for the ralue of property in the custody or control of that ourt, | (4.) It may be well doubted whether those who wrote this 2uth rule ever intended the third subdi- vision to refer to anything other than cases under admiralty process; for the third subdivision of this rule is well satisfied by limiting the meaning ‘of the words * proce@aéthere…

[Reusens SCOTUS Case (1885)] Fairly then, it may be claimed that no such case as the present was contemplated, when the rule under consideration was promulgated. Third. Even, therefore, if this Court would hold, in case a proper undertaking had been given by the plaintiff in error pursuant to section 688 of the New York Code, that it might have been considered by the Circuit Judge under the 29th r…

[Reusens SCOTUS Case (1885)] m™% arrest he A od Wood - ogg 4 Y Pleg i SP ig oe te PR Ae RN A ACNE NICO i SUPREME COURT OF THE UNITED STATES. ) | THE Mexican NATIONAL CONSTRUCTION COMPANY. | Plaintiff in Error. against (FUILLAUME IEUSENS, Defendant in Error. Take notice that upon the annexed affidavit of Michael H. Cardozo, verified the 20th day of March, 1886, we shall move this Honorable Court on…

[Reusens SCOTUS Case (1885)] 32 Nassau Street, foe New York. 5) i HE M EXICAN NATIONAL CONSTRUC- TION C'OMPANY. Plaintiff in Error. agains? (FUILLAUME REUSENS. 6 Defendant in Error. «| S- bie cand or New YorK. lg Southern Distriet of New York. Michael H. Cardozo, being duly sworn, doth depose and say: | am one of the attorneys and of counsel for the defendant in error, and have had continuous char…

[Reusens SCOTUS Case (1885)] pursuant to the Code of Civil Procedure of the State of New York: said attachment was duly served by the Sheriff of the City and County of 9 SUPREME COURT OF THE UNITED STATES. ae New York, and .the: sum of $30,000 then on deposit in the American Exchange National Bank, in said city, to the credit of said plaintiff in error, was duly levied on by said Sheriff to secure…

[Reusens SCOTUS Case (1885)] York, passed June 138th, 1881, being Chapter 486 of the Laws of ISS1, entitled * An act to facilitate the giving of bonds required _ by law.” A copy of said undertaking is hereto annexed and marked Schedule * A.” Said undertaking was @&@awe by one of the Justices of said Supreme Court against the pro- test and objection of deponent on or about the 23rd day of February,…

[Reusens SCOTUS Case (1885)] or for the doing or not doing of any- thing in said bond or undertaking specified ; and any Justice of this Court is authorized in his discretion to accept aud approve of the suffie- ieney of any bond or undertaking in any suit or | action in this Court, or in any proceeding, except in criminal cases. in which by law it is provided that any bond or undertaking shall be…

[Reusens SCOTUS Case (1885)] The Secretary of said Company shall transmit to the Justices holding the first General Term in the First Department, in each year, a statement under oath, showing its financial con- dition on the 3ist day of December prec eeding said statement. On or about the 25th day of February, 1884, the - complaint was duly served in said action ; and, 16 on or about the 28th day …

[Reusens SCOTUS Case (1885)] | : : 3 In the month.of January, 1885, said plaintiff in error duly served an answer to said complaint. On or about the third day of June, 1885, said cause was duly called for trial before the Honor- able Hoyt H. Wheeler, sitting as Circuit Judge, and a jury, and the issues of fact and law were duly tried; and thereupon a verdict was duly ren- dered by direction of the…

[Reusens SCOTUS Case (1885)] This cause is now upon the docket of this Court, numbered 980, ’ s Upon allowing the aforesaid writ of error, a bond, as security to the said defendant in error, of which a copy is hereto annexed, marked Schedule B, was approved by the Honorable Wil- ham J. Wallace. Cireuit Judge. ee 6 91 - The said writ of error was allowed and said bond approved without any notice wh…

[Reusens SCOTUS Case (1885)] be ( pany, a cor enneiion duly organized and existing 25- under the laws of the State of Colorado, hereby undertakes, pursuant to the statute in such case made and provided, in the sum of twenty- nine thousand dollars. that the defendant will, on demand, pay to the plaintiff the amount of any judgment which may be recovered in the action against the defendant, not exce…

[Reusens SCOTUS Case (1885)] And the said Walter Hinchman, being by me duly affirmed and the said George Bernard being by me duly sworn, did depose and say, and each , 6 for himself said that they severally reside at the i , ~ Citv of New York : that he. the said Hinchman, SOMERS ROY pices ee = PPV SY TOES EAN eee ON AIT NE SER i 0 cv a2 tper ede pecan Ee ee steam . ia ‘ sip 2 wag eheviie z at PMO…

[Reusens SCOTUS Case (1885)] FRIEND. .> Notary Public. i: In and for the City and County of coe | New York. nme et ee SUPREME COURT, (iry AND Country OF NEw YORK. (3UILLAUME REUSENS a2 rN, Tue Mexican Mationant Constrvuc- TION COMPANY, | . In pursuance of the provision of an Act of the Legislature of the State of New York, entitled “An Act to facilitate the giving of bonds re- 3 quired by law,” pa…

[Reusens SCOTUS Case (1885)] Y.; that he is the President of the: Fidelity and Casualty Company of New York, the corpor- ation described in and which executed the fore- going instrument ; that he knows the corporate seal of said company ; that the seal affixed to said instrument is such corporate seal; that it was affixed by order of the Board of Directors of said company, and that he signed said …

[Reusens SCOTUS Case (1885)] Probst, as sureties, are beld and tirmly bound 99 unto the above named Gillaume Reusens in the sum of five thousand (5,000) dollars, to be paid to the said Guillaume Reusens for the payment of which, well and truly to be made, we bind our- selves and each of us..our and each of our heirs, executors and administrators, jointly and sever- ally firmly, by these presents. …

[Reusens SCOTUS Case (1885)] a) ll: cute said writ of error to: effect and answer all damages and costs, if it fail to make its plea good, then this obligation shall be void ; other- wise the same shall be and remain in full force and virtue. | THE MEXICAN NATIONAL CON- STRUCTION COMPANY. By Water HINCcHMAN, oe President. Attest—W. W. Nevin, Secretary. | Wm. M. Spackman, [L.8.] J. D. Prosst, [L. s…

[Reusens SCOTUS Case (1885)] Wallace.” : 44 Sei Mere - Oo PORAENES CORSO S TSS OO OR RSS NOS SHOES BOOS COT EHO86S 04702 Oee CEOR~ > Sens Oe ae CO MR aes eC OOS e Heal Ores Benes Cenccaneaneneas CLOG Net PAGER SE oie aoe © se Iu the Supreme. Court of the Muited OCTOBER TERM, 1885. t THE MEXICAN NATIONAL CONSTRUCTION COMPANY, Plaintif/ in Error, ¥ VS. GUILLAUME REUSENS, Defendant in Error. ee eee e…

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[Reusens SCOTUS Case (1885)] MEyYEn, having first been duly sworn, says, upon bis oath, that he is the attorney for the plaintiff in error in the above entitled cause : that this case was brought to this Court by writ of error to review a judgment rendered by the Circuit Court of the United States, for the Southern Dis- trict of New York, in ao action which had been originally brought in the Supre…

[Reusens SCOTUS Case (1885)] whole of the property attached ; that upon such application the Mexican National Construction Company gave and filed an undertaking with two sureties ; that on the 14th day of February, 1884, the attorneys for said Reusens excepted to the sufficiency of the sureties, and thaton the 20th day of February, 1884. de- ponent, on behalf of said Construction Com- pany, offere…

[Reusens SCOTUS Case (1885)] on behalf of the said Con- struction Company, offered another new undertak- ing, the performance of the condition of which was guaranteed by the Fidelity and Casualty Company, and oa copy of — whieh un- dertaking and guarantee is part of the moving papers as Schedule A ; that said Reusens then and there again objected to the Jast mentioned under- taking and guarantee t…

[Reusens SCOTUS Case (1885)] Dated New York, February 25, 1884, C. Donohue, J.”’; and so endorsed, caused the same to be duly filed. That therenpon the property attached was re- leased pursuant to the order of the Judge. | That said Reusens did not appeal from the de- cision of the Court’ overruling his. objection, and accepting or approving the said under- taking and guarantee thereof; nor did th…

[Reusens SCOTUS Case (1885)] Y., 458, was decided on the 10th day of March, 1885, about three months prior to the trial of this cause, and Eoeplocaddeadiiamtanniedaticelicmten nateniinomee tetiatteedebateiccer ima oe ro) 4 (10° over five months previous to the entry of judg- ment, and the issuing of the writ of error herein ; that the action was tried and verdict rendered on June 4, 1885, and that…

[Reusens SCOTUS Case (1885)] That the Cir- “euit Judge personally took the oaths of the sure- ties on said last mentioned bond, and’ examined each of them as to his sufficiency, and after such examination, approved the bond and signed the citation ; that since such security was accepted — as aforesaid, the circumstances of the ease, or of the parties, or of the sureties upon the bond, or of ‘79 th…

[Reusens SCOTUS Case (1885)] MEYER, being duly sworn, says, that he-is the attorney for the defendant in this action; that the action was commenced in the Supreme Court of the State of New York in Feb- rnary, 1884; that an attachment was issued in this action against the property of the defendant, which attachment was discharged by an order duly made on the 11th day of February, 1884, upon the de-…