Patton v. Harris , 54 Ky. 607 ( 1855 )

Chief Justice Marshall

delivered the opinion of the Court—

This cause, so far as relates to the ascertainment of the mortgage debt and the foreclosure of the mortgage, was reversed in December, 1852, and remanded in order that the respective claims of the parties arising out of the attachment and proceedings thereon, and by which the mortgage debt might be affected, should be ascertained. Before this was finally done, but after a decree of sale had been rendered, the mortgaged slaves which had been attached constituting the only security for the debt, were removed from the jurisdiction of the court, and in fact taken from this State to some distant part of the State of Ohio, or to other unknown parts, so that they could not and cannot yet be subjected to the mortgage. And there being sufficient evidence that this was done by tbe act or contrivance of Patton, process of contempt was issued against him, and he was committed to jail under an order of the court, requiring, as the condition of his discharge, that he should pay a certain sum assumed to be the amount of the mortgage debt, -which however had not then been ascertained by a statement of the amounts above referred to.

1. The Court of Appeals -will take jurisdiction of a judgment of a Circuit Court committing a party for a contempt in failing to comply with the orders of the court to pay money or surrender property, only so far as to see that the sum required to be paid is due, and the conditions on which the person shouldbe discharged.

At the June term, 1853, this court regarding the commitment to jail as not merely a punishment for the contempt, but also as a means intended to coerce payment of the sum assumed to be due, and for which a sale had been ordered by the decree after-wards reversed, took jurisdiction to revise the order of commitment so far only as it prescribed the conditions of a discharge, and reversed it not only because the sum required to be paid had not been ascertained to be the debt actually recoverable, but because there ought to have been other conditions on which the prisoner might have been discharged besides the actual payment of the debt, even if ascertained.

A report having been afterwards made showing the state of the accounts between the parties in various aspects, the court adopted that which stated the balance due to Harris, the mortgagee, as being, on the 1st day of October, 1854, seven hundred dollars, and decreed a sale of the mortgaged slaves, if produced,'or of so many as might suffice to pay that sum, with interest from said 1st day of October, and decreed further that Patton might be discharged from the commitment and imprisonment by paying or replevying, with sufficient security, the said sum and interest, but reserving power to make further order with respect to said commitment.

The objections now made to this decree on the part of Patton resolve themselves into three general grounds, viz: 1. That the original attachment of the mortgaged slaves was not authorized by the statements of the bill and the affidavit thereto, and consequently that the expenses growing out of the attachment ought not to be charged to Patton, but that Harris should be answerable to him for all losses consequent thereto, and for such hires as might have been obtained if there had been no attachment. 2. That if this be not so, and if Patton be chargeable with the expenses, he should be credited by the hires or services of the slaves at least while in the posses - sion of Harris or his agents, after they had been attached, and that the expenses allowed are too high and the hires too low, and that consequently the sum decreed is too large. And 3. It is insisted that the continued imprisonment of Patton and the conditions prescribed for his discharge are illegal and oppressive, and that the decree upon that subject should be reversed, if erroneous in no other respect.

2. The Court of Appeals has no power io reverse an order of a Circuit Court ordering a commitment ae a punishment for a contempt.

Taking up this last obj ection first, we remark that if Patton had in fact remained in prison from the time of the commitment up to the rendition of the final decree, and still remains there, it would seem to be reasonably apparent that his imprisonment is and will be an ineffectual means of coercing payment of the mortgage debt, or of securing the future return and subjection of the mortgaged slaves to the satisfaction of the decree of foreclosure. A longer continuance of an imprisonment already protracted through a period of two or three years would, as a punishment, seem to be unreasonable and inconsistent with the spirit of the constitution with respect to excessive bail, excessive fines, and cruel punishments, (Art. 13, sec. 17,) and also with the enactments with respect to contempts. But considering the order with respect to the commitment and imprisonment as a punishment for contempt, this court has no jurisdiction to reverse it. And as there is no error in allowing the prisoner to discharge himself by paying or replevying the debt, and as the decree reserves a power over the subject which will enable the court to allow a discharge upon easier conditions, and as Patton did not offer or ask for any other conditions, we are of opinion that a reversal of this part of the decree is neither proper nor necessary for any beneficial purpose; but it is sufficient to suggest, as we do, that unless it should be made to appear to the Circuit Court, at its first term, that a further continuance of the imprisonment will probably coerce from ration either a payment of the decree or a production of the slaves or of such as will suffice to make the sum due, he may be discharged from imprisonment*sby making a fair and full surrender of all his means ol[ paying said decree, or of such as shall be sufficient, verifying the statement of his assets by‘his oath, but subject to be contradicted by opposing evidence.

3. Slaves t^° properlymar tached by a proper “ allegaJjN® probable removal to the mortgagee^and if t51® m0/fc?a" bond that they to satísfy^the decree of the court that the sheriff hire them be^sulí ject to the decree of the court jn the case. If tllS . mortgagee receive the possession he for ^reasonable If ^the value on hire, mortgagee ddiveredtohim by the sheriff, and support, and and charges*incurred for their reeovery, should be borne by the

With regard to the legality of the attachment, we think there is no room for serious question. The bill charges that the mortgaged slaves, a female and several infant children, were in possession of Patton, living near the Ohio river; that the husband of the mother is a free colored man; that Patton desires the emancipation of the woman and her children, has declared that they shall not be sold*, áse., and will, as is believed, remove them to Ohio to prevent it. The bill is sworn to in. the usual form, not indeed by the complainant himself, but by one who , , . , „ . „ , states himself to be the beneficiary of the mortgage, and who, as we understand the case, is responsible for the debt. The facts alleged are proved by evi- . , . , . . , , , , , , . i dence which is most strongly corroborated by the actual abduction of the slaves, as above stated. 7

The slaves were properly attached, and no bond having been given by Patton, they were, on the 12th of April, 1849, placed by the sheriff in the jail of Mason county, situated in Maysville. At the succeeding May term of the Mason Circuit Court, in which the bill was filed, the slaves being still in jail, were directed by an interlocutory order to be taken into possession by McMillan, a deputy sheriff, and hired out, under bond from the hirer to have them forthcoming to satisfy any decree, &c., and in case he could not hire them he was directed to deliver them to the complainant, who was directed to hire them on the same terms. This deputy sheriff states in his deposition that he could not hire the slaves on the conditions prescribed, and that in June, 1849, he delivered them to the attorney of the complainant, who took them to the neighboring county of Fleming, wh ere he resided. At the time of this removal the cholera prevailed in Maysville, the slaves who had been insufficiently clothed while in jail, were nearly destitute of that article, and otherwise in bad condition ; one of the children died in a day or two afterwards ; others had been and were still sick; one had the cholera. They were worth nothing by way of hire while in jail, nor for the remainder of the year, but their keeping, removal, clothing, and doctoring occasioned heavy expenses, which, as consequent upon the legal attachment and the directions of the court, should be borne by Patton or the mortgaged property. On the other hand, the reasonable value of their hires or services, after the expiration of the year 1849, should be charged to the mortgagee, who being bound to make proper exertions for the discovery and apprehension of the slaves when they were secretly abducted, is entitled to be reimbursed in the reasonable expenses incurred in doing so. Without going into the details of this part of the subject, to which we have paid due attention in examining the report and the evidence, we are of opinion, that the result adopted by the court is founded upon reasonable allowances and charges for the several particulars which have been referred to, and that the sum decreed as being due upon the mortgage is as nearly right as upon this record, and considering the nature of the facts, can be adopted.

Wherefore, the decree is affirmed.