Cited-27 Ohio St., 638.

STATE OF TEXAS, Complt.,

v.

GEORGE W. WHITE, JOHN CHILES ET

AL.

(See S. C., "In re Chiles," 22 Wall., 157-169.) Decree of perpetual injunction—parties bound by -contempt of court-punishment for—fine imposed.

*1. In the original decree in this case, White and Chiles were perpetually enjoined from setting up any claim or title to any of the bonds or coupons attached to them, which were the subject-matter of the suit. The bill, answers and proceedings in the case show that the purpose of the suit was to establish the title of the State to these bonds, and to free it from the embarrassment of the claim of defendants.

2. All parties to the suit were, therefore, bound by the decree as to that title; and because Chiles was the owner, or now claims to be owner, through a transaction not set up in his answer, he is not the less concluded and bound to obey the above injunc3. Notwithstanding he now assertsa different title or source of title held by him when the suit was brought, from the one imputed to him in the suit and defended by him, he is in contempt of court in setting up and seeking to enforce this claim.

tion.

4. Punishments for contempt of court have two aspects, namely: 1. To vindicate the dignity of the court from disrespect shown to it or its orders. 2. To compel the performance of some order or decree of the court, which it is in the power of the party to perform and which he refuses to obey.

5. In the present case there is no part of the original decree which Chiles can perform which remains unexecuted, and no additional order or decree can be made for him to perform in this proceeding for contempt.

6. The court, therefore, sentences him to a fine of $250 and costs, for his contempt in setting up a claim of title to seventy-six of the bonds men

tioned in the decree.

[No. 1, Original.]

Argued Mar. 1, 2, 1875. Decided Mar. 29,1875.

PETITION for a rule on John Chiles.

The case is fully stated by the court. Messrs. R. T, Merrick, Thos. J. Durant, R. J. Brent and Geo. Taylor, for complainant:

First. John Chiles, when sued by the State of Texas, was bound to set up all his various tiles to the bonds in question. In his answer he admits that the contract, A, sets out the number and amount of said bonds, and that he has given thus a true account of the part he has acted in all the transactions connected with the said bonds and coupons.

He now sets up a claim, his contract, dated Mar. 4, 1865, more than two years prior to his

answer.

He should have interposed this contract of Mar. 4, 1865, in his original defense. It is now too late. Res judicată pro veritate accipitur. *Head notes by Mr. Justice MILLER.

NOTE.-Power of courts to punish for contempt. See note to Ex parte Robinson, ante, 205.

*

*

"All the facts now brought forward * existed at the time of the former rule, and every objection which can now be urged, might then have been brought forward." The matter must now be taken to have passed in rem adjudicatam, and the former decision is conclusive between the parties.

Greatheard v. Bromley, 7 T. R., 452.

"Where every objection urged in the second suit was open to the party within the legitimate scope of the pleadings of the first suit, and might have been presented in that trial, the matter must be considered as having passed in rem adjudicatam, and the former judgment is conclusive between the parties."

Aurora City v. West, 7 Wall., 102 (74 U. S., XIX., 49); Beloit v. Morgan, 7 Wall., 619 (74 U. S., XIX., 205).

Second. But if Chiles' answer to the bill be true, he cannot now have any claim whatever to the seventy-six bonds. If in his answer he gave a true account of all his transactions connected with the said bonds and coupons, he can now have no claim whatever, by virtue of that upon which he now grounds himself. There is a contradiction in his acts and doings. The three ingredients of an action for slander of title are all palpably here: 1. Falsity of state2. Actual malice and intent to injure. 3. Damages sustained by Texas. If the original decree herein be a truth, the proofs of all the three ingredients are contained in it.

ments.

Pitt v. Donovan, 1 M. & S., 644; Wren v. Weild. 4 L. R. Q. B., 734; Steward v. Young, 5 L. R. C. P., 122.

In the action of jactitation or slander of title under the civil law, the judgment always condemned the defendant to assert his title by suit, if he pretended to have any.

"It would be too unjust to suffer a party to play the game of litigation in his own way, and on his own terms with every chance of winning the wager, and yet, if he should lose it, to allow him to withdraw his stake, and play the game over again in a new manner."

This is what Chiles is trying to do.

Messrs. Albert Pike, Robert W. Johnson, Luther H. Pike, P. Phillips, Jas. Hughes, J. M. Carlisle, S. S. Cox and J. W. Moore, for respondent:

As to the seventy-six bonds that were in England, the court could not decree restoration to the State. The object and purpose of the suit was to annul the contract made with White and Chiles. The injunction was but a mode of giving effect to the decree annulling it. And no other contract being mentioned in the suit or decree, the injunction cannot lawfully have the effect to forbid the assertion of right under. any other.

The complainant chose to follow, in its bill, not the old mode of pleading and interrogating, but that prescribed by this court for the circuit courts. The State did not ask as to any other claim the defendants might have, but attacking a particular contract, interrogated Chiles as to that alone, without a question or allusion as to the seventy-six bonds that were in England. Chiles

The court, having precisely the same power as any other court of equity of original jurisdiction, and its superior dignity as the highest appellate tribunal of the nation adding nothing to its powers or prerogatives as an equity court in original suits, could not enjoin Chiles from setting up a claim under a contract having legal force, legal validity and effect. In other words, it must first annul the contract and then enjoin, to give full effect to that annulment. And it can annul no contract that is not asked to be annulled, and properly impeached; certainly not by implication, one, of the existence of which it was not even informed.

The only escape from this inexorable logical conclusion is to claim that as the title of Chiles to the seventy-six bonds was impeached, and the right thence sought to be decreed to be still in the State, it was incumbent on Chiles to set up in his answer whatever title he might have, whether mentioned or not in the bill, and that if he fail to do so, it was annulled, whatever it might be, by the decree, and he, therefore, properly enjoined from setting it up. Hence the question of His Honor, the Chief Justice, whether the contract under which he now claims was made prior to the decree.

But the bill in this case not only confined itself to impeaching the contract made with White & Chiles, and asked for the delivery of the bonds held by them, as a consequence of the alleged invalidity of that contract; but it made. no inquiry as to any other title or claim of title; asked no questions of Chiles as to the bonds in England; and by special interrogatories declined to hear any statement from him not responsive to those special questions.

A defendant in equity cannot in his answer insist upon two defenses which are inconsistent with each other, or are the consequence of inconsistent facts. That answer is bad which either contains inconsistent defenses or an alternative of inconsistent defenses.

Jesus College v. Gibbs, 1 Y. & C. Exch., 145, 160.

Therefore Chiles, relying on the first contract, made with White and himself, as having trans ferred and ceded to them in full property these bonds, could not at the same time set up a title to them in himself alone, under a subsequent contract which, as to them, neither was meant to interfere nor could interfere with the former; for this would have been a wholly inconsistent defense.

Thus, although the second contract was made long before the decree, it had taken no effect at all as a transfer of the seventy-six bonds, until, by decree, the first contract was annulled. Until then, Chiles had no title under it to these bonds, which he could set up. He could not plead a title before it existed.

The decree in this case enjoined all the defendants from setting up any claim to any of the bonds described in the first article of the contract. Literally, this forbids Chiles to claim any of them by virtue of any right or title whatever. But it had first annulled the contract which was the subject of suit; and the general language used afterwards must be restricted to the

strue a decree with reference to the issues it was meant to decide. However broad and emphatic the enjoining words may be, the object of the bill in this case was to avoid and set aside the particular contract attacked by the bill; and the general words must be restricted within these limits.

Graham v. Railroad Co., 3 Wall., 710 (70 U. S., XVIII., 251).

We maintain that Chiles has not, according to the legal meaning of the phrase, or according to its meaning as used in the decree, set up or asserted a claim to the seventy-six bonds in question, he not having instituted or commenced any suit, action or proceeding whatever, for the enforcement of any right in himself to them, or of any interest in them. We find that injunetions are granted to suppress vexatious suits to remove improper impediments and defenses at law; to restrain alienations of property; to secure property; to compel delivery up of instruments; to prevent transfers; to prevent collections of stock fraudulently issued; to prevent irreparable mischiefs and trespasses; to suppress publications; to compel delivery up of possession and to quiet possessions; and to restrain from carrying on a suit, or entering judgment in a foreign country.

But we find none to prevent a man from saying, orally or in writing, by way of notice or otherwise, that he has a claim or right to property, or to evidences of debt of any kind. A written notice to such effect is no more than an oral one. If one sets up a claim or asserts a claim, so does the other."

A

For

The counsel of the State have been endeavoring to effect a compromise. To have some benefit of that compromise, they have claimed to own the bonds under the second contract. man may lawfully do that with a claim legally invalid, if he has any moral right of which he ought not in foro conscientia to be deprived. And Chiles had and has that moral right. Ile has complied with his contract. White and Chiles made large purchases and lost all, under the first contract. The State of Texas has no moral right to the bonds without indemnifying them and him: and when it presented itself to ask equity, it should have done equity. fictions of law can only be properly used to effect just results, and never to work injustice. No plaintiff ever came into a court with less equitable right or claim than the State of Texas in this case. The people of the State, by an immense majority, had voted to withdraw from the Union. The State Government continued unchanged through the war. Texas sent more troops to the field, in the Confederate service, in proportion to its population, than perhaps any other State of the Confederacy. No Federal Army ever camped upon its territory. One port only was captured, and that was soon regained. And after the war had ended, this people, still calling themselves the State of Texas, came here to ask, as a reward, that they be allowed to repudiate a contract made with White and Chiles, to obtain, not arms or munt tions of war, but cotton cards and medicines; and, without repaying to them their actual outlay under the contract, to have returned to them the bonds that had been fairly sold. To give this relief, the State had to be in effect held to

If the court can send out its process and bring him in here to be punished for contempt, for having, in England, notified the holders of the bonds that they were his, it could do so if he had only said it to them; and if because he said it to them, then because he said it to anyone anywhere; for in doing so he would "set up" and "assert" a claim to the bonds in the sense of which the learned counsel of the State of Texas understand those phrases. He would come within the language of the decree. We do not think that the court used them in that sense, or meant to watch Chiles all the rest of his life, to see that he should not dare to say or write that he owned the bonds under a contract upon which the court has never passed, or even under that which it has annulled. Such a use of its powers and processes, we with deference submit, is an abuse of them, and that the court is here and now invoked to intervene in a case that does not deserve its attention, the State querulously complaining of trifles and not of a legal wrong.

Mr. Justice Miller delivered the opinion of the court:

A decree in this case was rendered on the 12th day of April, 1869, by which, among other things, the defendants, George W. White and John Chiles and others, were Perpetually en joined from setting up any claim or title to any of the bonds or coupons attached, which were described in the first article of the contract filed as exhibit A' to the bill of complaint." A rule has been served on defendant Chiles at the instance of plaintiff, to show cause why he should not be punished for contempt in disobeying this injunction. The petition on which the rule was granted, charges that said Chiles had continually and repeatedly asserted a claim to seventy-six of the bonds mentioned in said decree, thereby seriously impeding a settlement and compromise by complainant with persons who have possession of such bonds in England, and especially charging him with writing and serving the two following notices on the persons to whom they are addressed:

UNITED STATES, CITY AND STATE)

OF NEW YORK, July 17, 1874. S Mess. Lloyd Entwistle & Co.. London:

Take notice that I hold a claim for the whole amount of moneys deposited with you by John Milton Swisher, of Texas, U. S., and you are hereby notified not to part with said moneys or any portion of them without due authority from me. My solicitors will wait upon you with the proper process to bring the matter before the courts at the earliest day practicable. John Chiles. UNITED STATES, CITY AND STATE

OF NEW YORK, July 17, 1874. Mess. Droege & Co., Manchester, England: You are again hereby notified that I am the owner by contract with the State of Texas, of

My solicitors will wait upon you with the necessary process to bring the matter before a judicial tribunal, as soon as the proper preparations can be perfected. John Chiles.

In answer to the rule to show cause, and in answer to interrogatories propounded to him by complainant's counsel, Mr. Chiles admits that he signed the above notices in the City of New York, and caused them to be served on the parties, and that he has claimed ever since the decree in this case, and does now claim to be the owner of the seventy-six bonds above mentioned. But he denies that he is guilty of any contempt or violation of the injunction of this court on two grounds: one, that the decree of the court only enjoins him from asserting a claim under the contract between White and Chiles, and the Military Board of Texas, which is the exhibit "A" mentioned in the decree; whereas, he now asserts a title to these seventysix bonds under another contract made by himself alone with said Board, after the one which was declared void by the decree of this court, but before the suit was brought. 2. That there can be no violation of the injunction until he asserts his claim by some kind of judicial proceeding which he has not yet attempted.

The first proposition requires an examination of the pleadings and the final decree, to ascertain what was in issue and what was decided by the court and intended by its injunction.

The original bill recites the circumstances under which the United States issued, and the State of Texas received, the bonds known as the Texas indemnity bonds, and then alleges that these bonds fell into the hands of a combination of conspirators, who, assuming to be the lawful Government of the State of Texas, sold these bonds to White and Chiles, delivering one hundred and thirty-five of them, and selling these seventy-six, which were then in England. It alleges that the contract of sale by the Military Board of Texas, and the statute under which that Board acted are void, because the object and purpose of both were to aid the rebellion in its efforts to overthrow the Government of the United States; and it alleges that the bonds were not legally transferred for want of the indorsement of the Governor of Texas, which, by the statute of that State, was made necessary to any legal transfer of those bonds.

We have here an assertion of title and ownership of these bonds, both in law and in equity, in the plaintiff, the State of Texas, with a recital of the origin and state of that title. There is then an allegation of three distinct grounds on which the claim of the defendants is charged to be invalid: 1. That their possession was obtained through an unlawful band of conspirators, who, taking possession of these bonds and of the political power of the State, had delivered the bonds to White and Chiles without any authority to do so. 2. That such bonds

could not be lawfully delivered and transferred, so as to carry the title of the State to them to any person without the indorsement of the Governor, which none of these bonds had. 3. That the contract under which White and Chiles received the bonds delivered to them and claimed title to those not delivered, was void because made with the intent to aid the Rebellion, and a copy of this contract is set out as exhibit "A" of the bill, and mentions specifically these seventy-six bonds. White and Chiles filed separate answers to this bill, and take issue, either as matter of law or of fact, on all these grounds of complaint. They asserted the justice and legality of their title to the bonds and to all of them; and of course denied the right of the State to recover of them or of their vendees, either these bonds or their proceeds in the Treasury, or their value. It is very true that, in the final decision of the court, the questions decided were those raised as above stated. Such is necessarily the case in all opinions delivered by a court. But the object of this suit was to establish the title of the State of Texas to these bonds, and her bill of complaint made parties. so far as she knew and could bring them before the court, all persons who denied or contested that title. The bill was framed as carefully and as fully as it well could be for the purpose of es tablishing that title finally and conclusively. If, out of abundant caution, the bill sets out all the false and pretended claims of the defend ants and the grounds on which they were supposed to be false, that were known to complainant, is the final decree in her favor to be of no avail because one or more of the defendants had another and a different ground of defense which he did not set up in his answer, nor in any manner make known to the court?

Mr. White was called on by this bill to defend his title, his whole title to these bonds, or to any part of them, or any interest in them. The prayer and object of the bill was to decide and determine the title, and to give all such relief as equity could give if the title was found in the complainant.

It would be to trifle with the court to make a proceeding in equity, designed to give full and final relief, and to administer complete justice, to depend upon the skill and jugglery by which a defendant might conceal some part of his defense to that suit until it was decided against him, and then set it up as an excuse for disobeying the final decree of the court, or hold it out as the basis of another suit for the title or possession of the same bonds. And whatever difference of opinion may be found in the authorities, on the nice distinctions involved in the question of what is concluded in suits at law, and without even the necessity of going as far as this court has gone in actions at law in holding that all that might have been set up as a defense in the action must be concluded by the judgment, we are of opinion that in such a case as this, in a suit in equity, when the obvious purpose of the bill is to establish and adjudicate the entire rights and title of the parties before the court to the bonds and their proceeds in all the forms in which they can be identified, the decree must be final and conclusive on all the rights of all the parties actually before the

court.

As to the meaning of the decree on this subject it is too plain for argument.

The first paragraph or order declares the contract with White and Chiles void, and enjoins them and the other defendant from asserting any right or claim under the same; and it establishes plaintiff's right to said bonds and to their proceeds.

The second paragraph or order perpetually enjoins the defendants, including White and Chiles, from setting up any claim or title to any of the bonds and attached coupons which are described in that contract, but does not limit the prohibition to a title under said contract. There can be no use for these several orders of injunction except to make it certain that defendants are to assert no claim to these bonds, either under that contract or under any other claim or title.

In regard to the second ground of defense, no authorities are cited by either side. The language of the enjoining order certainly is not limited to a prohibition of a suit in court. Nor are we satisfied that the purpose and object of the injunction would be obtained by such a limitation. The purpose of the suit was, as we have said, to establish the rights of plaintiff as owners of these bonds and to prevent further interference or obstruction in the assertion of that right. As to all the bonds in the possession of the parties, or when they or their proceeds were within the control of the court, this purpose was attained by other orders and decrees.

That

But as to these bonds which were in England, all that the court could do was to prevent by injunction any interference of the defendants with the efforts of complainant to recover them, and that was the meaning of the enjoining order of the court. Is it obeyed or its purpose attained while one of the defendants asserts openly and continually, I am the owner of these bonds notwithstanding the decree of the court; I shall in another jurisdiction maintain my right to them by all legal means"? such a course would seriously embarrass the complainant in securing her right as established by this decree there can be no doubt. Would it be permitted when in a suit to quiet title to real estate defendant was enjoined from any further disturbance of that title or assertion of his own, that he could still continue to slander plaintiff's title, impair its validity, and prevent its sale, because he stopped short of instituting a suit for the land? The very ground of bringing a suit to quiet title is that the disturber, while asserting a claim which is a cloud on plaintiff's title, refuses to carry it to the test of a trial in court, and because he refuses to do this a court of equity stops his mouth. This, also, is a bill to quiet title, and the defendant is forbid to set up or assert a title in conflict with complainant's. This prohibition is not obeyed where the defendant continues the annoyance and the injury in any form short of bringing a suit for the bonds.

Without determining how far a mere loose verbal assertion of a right to these bonds could violate the injunction, we are of opinion that the deliberate service upon those who had them in possession, of a written notice of his claim of ownership, with a reference to further ju