Samuel H. Early, Plaintiff in error v. John Rogers, junior, and Joseph Rogers, Survivors, &c. of Rogers & Brothers, Defendants, 16 How. 599

Sir. Justice CAMPBELL delivered the opinion of the courtf The defendants, (Rogers & Co.) on the 27th of May, 1852, recovered in this court against the plaintiff á judgment, in' the following words: “ In order to put an end to the litigation between the above parties and as a compromise the matters In difference between them, that said Samuel H. Early shall pay to the said John Rogers and Joseph Rogers, between this and the first day of September next, the sum of ten thousand dollárs, which sum of ten thousand dollars the said John Rogers and Joseph Rogers agree to receive of the said Samuel H.

Early, in full satisfaction and discharge of the original judgment entered against the said Early- for the sum of about f12,500, in said District Court of the United States, for the Western District of Virginia, and in full satisfaction and discharge of all claims and demands which said John Rogers and Joseph Rogers held against said Early in any account arising out of the dealings on which said litigation is founded. l!

And it is further agreed, that the original judgment rendered in said District Court of the United States for' the Western District of Virginia, and which is taken up to the Supreme Court of the United States on a writ of error, which is. now pending in that court, may be entered affirmed in said Supreme Court at its present session, subject to the above agreement; that is, the judgment, although affirmed, shall not be obligatory for more than the above sum of ten thousand dollars, to be paid as aforesaid ; and as soon as that sum is paid, the said judgment shall be éntered satisfied, provided the amount is paid on or before the said first day of September next.

Costs to be paid by Early. “ May 18th, 1852. . Samuel H. Early, By Cha as Fox, his attorney. John Rogers, Joseph Rogers, By James F. Meline, their attorney. “ On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the samé is hereby affirmed, with costs, in conformity to the preceding stipulations; and that the said plaintiffs recover against the said defendant, Samuel H.

Early, one hundred and twenty-nine dollars and fifty-two- cents for their costs herein expended, and have execution therefor. “May 27,--.” The mandate of this- court was issued in October, 1852, and spread upon the records of the District Court for the Western District-of Virginia. In January, 1853, an execution issued returnable to the March rules of that year.

At the April term of that court, the plaintiff, Early, obtained a rule against Rogers & Co., requiring them to show cause why the execution so sued out should not be quashed, and also why execution on the said judgment of the said Supreme Court should not be limited to the sum of ten thousand dollars, with interest thereon, from the 1st day of September, 1852, and the costs; and also why the same shall not be stayed until the further order of the court, on account of certain attachments and suggestions.

Whereupon the court ordered the execution to'be quashed, but that the said Rogers & Co. be allowed, to sue out their execution against said Early for the principal sum of $12,115, with costs, but without interest or damages. The writ of error has been taken to bring this order awarding the execution to this court. We think the district judge interpreted the . agreement of the parties and the judgment of this court upbnlt, correctly. The parties made the reduction of the judgment to ten thousand dollars, dependent upon a condition, which has not been fulfilled.

The plaintiff in error had obliged himself to comply with this condition, or to lose his claim for a deduction. We think the award of execution, for the amount contained in .the order, was proper. The motion to stay the execution, founded upon the fact that creditors of Rogers & Co. had attached this debt, by service of garnishment on the plaintiff in the State courts, was addressed to the legal discretion of the District Court, and its judgment is not revisable by this court.

The .mere levy of an attachment upon an existing debt, by a creditor, does not authorize the garnishee to claim an exemption from the pursuit of his creditor. The attachment acts make no such provision for his benefit. It is the duty of the court wherein the suit against the garnishee by his creditor may be pending, upon a proper representation of the facts, to take measures that no injustice shall grow out of the double vexation.

The court should ascertain if the attachment is prosecuted for a bon t fide debt, without collusion with the debtor, for an amount • corresponding to the debt, that no mischief to the security of the debt will-follow from a delay, and such other facts as maybe necessary for the protection and' security of the creditor... An order of the court to suspend, or to delay the creditor’s suit, or his execution in whole or for a part, could be then made upon such conditions as would do no wrong to any one.

It is apparent that such inquiries are proper only for the court of original jurisdiction, in the exercise of the equity powers over proceedings an,' suitors before it, with the view to fulfil its great duty of administering justice in every case. We do not perceive in this record .evidence that the district judge has exercised his discretion unwisely.

We do not express any opinion upon the questions whether a writ of error was the proper remedy to bring this order befoie’ us, nor whether attachments could be . levied from the State court upon a judgment or claim in the course of collection in the courts of the United States. Accepting the case as it has been made by the parties, and has been argued at the bar, our conclusion is, there is no error in the record, and the judgment is affirmed. Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Western District of Virginia, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court that the judgment of the said District Court in this cause be, and the same is hereby affirmed, with costs.