the chattels are now worth $1,500, and that the mortgage debt exceeds $2,000. It must be noted that the.chattels are attached; that McGee is not a garnishee; and that no claim of any kind against him by plaintiffs appears on the record. He is absent, and a. resident of New York. A claim against him by Pearce, also a non-resident, whether for an account or an:, thing else,is not properly within this jurisdiction. The plaintiffs, since this term began, admitted in writing on the record that Pearce is entitled to a of $500, which they agree to allow to him upon the damages recoverable by them in this suit. They maintain that this credit, which the marshal says he has attached, will save the jurisdiction. ,The action is for non-performarlCe of a contract to dig an artesian well. 850,0 is a Bum the plaintiffs are willing to allow for work done in part performance of the contract.' Pearce has niade no claim for such an allowa.nce. He could not show himself entitled to it·. The contract for non-performance of vyhich this suit was brought is in evidence in this case. It is an entire contract. In express terms it provides that Pearce shall be entitled to be paid for work done on thE!' completion of the whole work." The gif;lt of this action is that the work has not been completed.. The admission of the plaintiffs is at variance with their contract, and the case made. It cannot be made and used by tbem simply for the purpose of creating jurisdiction. No one can be made a party to a cause in invitum., unless he be found within,br hll.sproperty'whichcan be reached within, thejurisdiction of the court in which the cause is brought In this case, the chattels attached are ,not the property of the defendant. The other mattera styled matters of account are not properly in this jurisdiction. The attachment will. not lie. Plaintiffs may discontinue, or take 8 nonsuit, if they prefer.
LE}JMAN 'l1. MCQUOWN
(Circuit OO'Urt, D. Oolorado. May 12.1887.)
Personal property afa debtor was sold at sheriff's sale. and bought by the ,,' debtor's wife for less its real value. A creditor thereupon obtained the ap,Pointment of a receiver t,o take charge of the propert;r so hought, and an InJunction to restrain interference; that the purchase was not an: honest one. The bona the transaction waS afterwards established, and,th!l;receiver settled his accounts. and was discharged. and turned over to the-purchaser the residue of the property remaining in his hands; a portion of th'e 'Same haVing been sold by'him. The said purchaser then claimed dam" ageg upon the inj unction bond. against said creditor, by reason of the wrong· ful interru.ption of her possession of the property. Held, that she was entitled to recOVer. "
SAMEL-MISMANAGEMENT OJ' RECEIVER-Dl8cHAlIGE.
DAXAGEB--"'INJUNCTION BOND-WRONGFUL INTERRUPTION OF POBSESSION.
After suchredeiver hall settled his accounts, and been discharged, without ..objection, such,purchas,er cannot recover, as an item of.such damages. any loss reason qf such receiver's mismanagement. for which. if esi iabbshed, the receiver might have been held responsible before his discharge.
I. Rum-PRoPERTY IN HANDS OF RECEiVED-DEPRECIATION;
The amount of an alleged depreciation in the value of. the property, in such case, while in the receiver's hands, cannot be recovered as ali item of age, when it appears that the receiver did all he could to dispose of the' property to the best 'advantage. The profits, in such case, which might have been made by the use of such property, if the possession of the receiver had not occurred, are so far speculative that, in the absence of clear testimony, they cannot be measured by any exact standard.
Assessment of Damages on an Injunction Bond. S. P. Rou, for plaintiff. ' J. W. Horner, for defendants. BREWER, J.,(oraUV.) In 1,710, (Lehman v. McQuown,) in which ana&sessment of damages on an injunction bond is sought, the facts are these: In the fall of1884, one George McQuown was indebted to sundry creditors. Proceedings were had, byl1ssignmellt and suit, which culminated in a sheriff'seale, in which Mrs. McQuown, the wife of George McQuown, purchased the property. By mistake or accident, the principal creditor was not represented at the sale, and Mrs. McQuown bought the property at much less than its real value. The creditor, fancying that the trans'action was not honest, after judgment, obtained the appointment of a receiver, and an· injunction restraining the defendants from interfering with his possession, Then, upon a hearing of the matter before me, I was constrained to hold that, notwithstanding all the circumstances which the creditor showed of suspicion, Mrs. McQuown was a bona fide purchaser at a sheriff's sale, and if she made a good bargain it was her good luck, and not a fraud upon the creditor. I therefore ordered a decree in herfavor, and the property was turned back to her, having been in thepoBsession ofthe receiver four months, less six days. The property which passed to his hands was a stock of wall paper of about $6,800 in value. The accotmts of the receiver were settled, and he was discharged. Upon an application for the taxation of costs, I charged the whole fees of the receiver upon the complainant. As the receivership was not justified, and as the receiver took the place of the owner, and conducted the business during that time, it seemed to me no more than fair that that which was pQid to him for his personal services was an expense which was fairly to be borne by the complainant, who had wrongfully put him in possession.. Now, in addition to that, damages are sought by reason of the dispossession of Mrs. McQuown, the owner, and a claim of several thousand dollars is presented. She claims a thousand dollars for the depreciation in value of the stockduring the four months; another thousand for the injury to her credit; another thousand for the loss of custom,amounting, these different items and others,to several thousand dollars. Another thousand was claimed on the ground that the receiver sold portions of a single pattern, so as to leave broken and fragmentary pieces of comparatively little value. I hav-e here a mass of testimony. Some of the items of damage, certainly, are not to be considered. If the receiver mismanaged; if he
sold improperly from one pattern, leaving worthless fragments; in fact. if anything he did as'receiver was done improperly, and to the prejudice of Mrs. McQuown,-it is am:;ttter for which he should be held responsible; but when his accounts have been approved; and he discharged, without objection, the court will not inquire, or permit the inquiry, as to the way he managl:d. ", " Again, in reference to the depreciation in value. The property was taken possession of in the commencement of the wall-paper season in April, and was returned in July; and the claim is made that the property, meantime, had gone down in value, and that this is a matter to be taken into account. But this must be l1pon the assumption that the property, at the time it was taken possession of, could instantly be convertEld into money; and ,the'illustration which, wag very forcibly put by counsel was of wheat: It is taken possession of to-day, when its market vltlue isso,muchj it is held forfQur,J;l1onthsj its market value down, ..:...certainly, that diminution in, ,v:alue is something of which the party has a right But,.it was admitted on the hearing last fall, in reference to the taxation of costs, that the receiver had acted prudently. He had a stock of goods, which h(f had done the best he could to dispose of, and, if he had not fully succeeded, then it was because it was property which could not be .thrown at once on the market, and convertedinto money at anything like its value. As shown by the very result of the sheriff's sale, it was not property for which one could go out on the 'street and find a purcha/ler in the open market; and if the receiver haa disposed of that property, or 110 much as he did, in the best manner he could, and in a manner which was commended by both parties, and for cash, it would not be fair to hold that, because he did not succeed in disposing of all the property, the complainant is to be charged with the difference between the value in April and iu July of that undisposed of. Nor is there much of this testimony that helps me in any way. That a party suffers damage when his property is taken out of his possession, and placed in the hands of a receiver, goes without Most of this testimony is the opinion of witnftsses, as to how much could have been made by Mrs., McQuown carrying"on business by herself. If she had conducted. business with a number of paper hangers, she might have made profits on their work; she might have disposed of this entire stock. But could she? Was that a season in which there was such a demand that any could have disposed of this property more rapidly or more successfully than the receiver? The testimony of t.wo of the witneS'iles who appear to be most familiar with the trade in this city seems to indicate the contrary i and to award damages upon .the belief of witnesses that,if the owner had held the property, she could have managed it to more profit, is entering upon a sea of speculation. As I said, it goes without saying, that the 'interruption of the possession is a damage; and I think that it is no more than fair that I should take this case, upon this testimony of the situation of the parties, the amount of the property, the tirneof the interruption of possession, and
do Jdst what a jury wouldprobablrdo. They would not be itble, and Ida not 8eehow anyone can sit down and figure out, by dollars and cents, from the statements of these witnesses, a satisfactory and mathematical statement of the amount of damages which the party has susta,ined. And I have done this, in my own mind: Taking the fact that this was of sixty-eight hundred dollars in value; that the ra;. ceiver evidently conducted the business fairly an,d satisfactorily, converting the property into cash, so far as he went, and selEng nothing on credit,-.-a. transaction and course of business which' ordinarily,I think, results in more profit than larger sales on credit; the amount of the property that he returned, and the time which the possession was detained from the owner; and also considering the fact that the fees of the receiver have already been taxed against the complainant,-I shall award damages.in:thesum of$250j forwhichsum,with all the costs that have taxed, an,execution will issue. ' '
UNl.'Tl!l])S'1lA'1'ES 11. BURKHARDT. '
At the close of the instructions to the jury the court, in response to a question from a juror, said the jury might give the verdict in the case in which ,the defendant committed the alleged perjury such consideration as they' thought it entitled to, when it also appeared from the record of the prior .aotion, and t:he other evidence before the jury, that the jury therein must have disregarded the evidence of the defendant herein alleged to be false. Held, that th$instruction was erroneous; and, although the verdict of guilty appeared to be fully justified by the evidence, the court could not say, on a motion for 'a new trial, that the error had no appreciable influence on the result, and therefore granted a new trial. '
(Syllabus by the Oourt.)
Indictment for Perjury. Motion for new trial. Lewis McArthUt·, for the United States. W. W. Page, for defendant.
DEADY, J. The defendant is accused by the grand jury of this district of the crime of peljury. The indictment states that on November 29, 1886, the case of Elizabeth Stapletcm v.' Oakland Home I'M. Co., an action to recover damages for the loss of the New Couch Hotel, destroyed by fire in this city on July 10, 1886, was on tria! in this court, when it became and was material to the determination of the issue therein whether said building was destroyed by the procurement of said Elizabeth, and whether the furniture contained therein had been removed therefrom by said Elizabeth· prior to said fire; that the defendant, being then duly sworn as a witness in said case, willfully and falsely: swore that about two weeks before said fire. and about two days before said Eliza-