Chicago City vs. Robbins.

ing for State tribunals the highest respect, does not feel bound by their decisions.

Testing the question of the correctness of the charge of the Judge of the Circuit Court to the jury, by the rules and principles we have discussed and established, was there or not error in it?

The following language was used by the Judge in his charge, and was excepted to by the City: "If, then, the contractors were in possession and control of the premises, with their servants and agents, and were, in their employment, independent of the defendant at the time of the accident, and the defendant was not concerned personally in the negligence which caused it, it follows, from what has been said, that he could not be held responsible for it." This instruction, in a case where the facts warranted, might have been properly given. But it did not arise out of the facts of this case; was inapplicable to them; was calculated to confuse and mislead the jury on the question of Robbins' liability; and must have misled them, and should not have been given.

A broad rule was laid down, when the very case itself furished an exception.

Robbins' duty was absolute to see that the area, dug under his direction and for his benefit, should be safely and securely guarded, and failing to do so, his liability attached, and the jury should have been told so.

The City also excepted to so much of the said charge of the Court, as leaves the question of joint negligence on the part of the plaintiff and defendant to the jury.

The City was not in fault, and this exception was properly

taken.

The judgment below is reversed, with instructions to award venire de novo.

1. The power of the Supreme Court of the United States to revise the proceedings of a Circuit Court in a case brought up on a certificate of division is strictly confined to the questions stated in the certificate.

2. Judgments and decrees rendered in the Courts of the United States are liens upon the defendant's real estate in all cases where similar judgments or decrees of the State Courts are made liens by the law of the State.

3. A decree for the payment of money in an admiralty suit in personam stands in this respect upon the same footing as a decree in equity.

4. Judgments and decrees in equity, rendered by the State Courts of Ohio, are, by the laws of that State, liens upon lands; Therefore,

5. Where one party filed his libel against another in the Federal District Court for Ohio, claiming damages by a collision of two vessels on the Lake and got a decree in personam for money as compensation, the decree is a lien on the respondent's land.

6. That lien gives the libellant a right to levy on the lands to which it attaches and consequently such interest in the lands as will enable him to sustain a bill of discovery against the respondent and any third person who sets up an unfounded claim under a different lien.

7. On such a bill, the respondent, if he makes out his case, is entitled to a decree which will remove the cloud from his title, but the Court cannot proceed further, and in the same case order the land to be sold for the payment of the debt found de by the original decree.

This case came up on a certificate of division in opinion between the Judges of the Circuit Court of the United States for the Northern District of Ohio.

The complainants, on the 12th day of November, A. D. 1856. upon appeal from the District Court, obtained a decree in the

Ward et al. vs. Chamberlain et al.

Circuit Court of the United States for the Southern District of Ohio, against the defendants, Philo Chamberlain and John H Crawford, in a proceeding by libel for damages sustained by the libellants by a collision on the waters of Lake Erie, between the steamer Atlantic, belonging to the libellants, and the propeller Ogdensburg, belonging to said Chamberlain and Crawford, whereby the steamer was sunk and lost:

The case was taken by appeal to the Supreme Court of the United States, and the decree of the Circuit Court there affirmed.

On the 7th day of July, 1859, a joint decree was entered in said Circuit Court, upon the mandate of the Supreme Court, and by the agreement of the parties, against Chamberlain and Crawford, and also against the defendants, I. L. Hewitt, John H. Chamberlain and George W. McNeil, their sureties in the appeal to the Supreme Court of the United States. It was stipu lated and agreed between the libellants and the defendants in the last-named decree, that Philo Chamberlain and John H. Crawford, the original defendants in the libel should make certain payments periodically on account of the last-named decree, that if such payments should be punctually made, no execution should issue; but that in default of any such payment being made as required by the agreement, the complainants might thereupon proceed to collect the amount due and unpaid, as they should see fit. Two payments were made and two defaults afterwards occurred: complainants caused execution to issue pon the decree, against the goods and chattels, lands and tenements of the defendants therein; the Marshal found no goods or chattels whereon to levy, and for want of such goods and chattels he levied upon the lands of the defendants, situated in the Northern District of Ohio, and described in the bill. The other defendants claimed rights and interests in, and liens upon said lands. The defendants had no goods or chattels liable to execution, and no lands or tenements in the State of Ohio, other than those levied upon and described in the bill. The prayer of the bill was, for discovery, that the rights of the parties and the dates and validity of their several liens in respect of said lands might be ascertained, that the lands might be sold and the proceeds

Ward et al. vs. Chamberlain et al.

applied, so far as could of right be done, to the payment of the amount due, and for general relief.

To this bill the defendants filed a general demurrer.

A hearing was had on the questions raised by the demurrer in the Circuit Court at the July Term, 1860, and the opinions of the Judges being opposed, the questions were certified to this Court for decision.

The points of law upon which the Circuit Court divided are distinctly set forth by Mr. Justice Clifford in the opinion of this Court.

Mr. Newberry, of Ohio, for Complainants.

Mr. Spalding, of Ohio, for Defendants.

Mr. Justice CLIFFORD. This is a bill in equity, and the case comes before the Court on a certificate of division in opinion between the Judges of the Circuit Court of the United States for the Northern District of Ohio. According to the transcript the bill of complaint sets forth that the complainants, on the 12th day of November, 1856, upon appeal from the District Court of the United States, obtained a decree in the Circuit Court for the Southern District of Ohio for the sum of $36,000 against the two respondents first named, in a proceeding by libel, filed in the District Court on the 27th day of October, 1852, for damages sustained, as alleged in the libel, by means of a collision on the waters of Lake Erie, between the steamer Atlantic, belonging to the libellants, and the propeller Ogdensburg, belonging to the aforesaid respondents, whereby the steamer was sunk and lost. Complainants also allege that the case was taken by appeal to this Court, and that the decree of the Circuit Court was here affirmed; that on the 7th day of July, 1859, when the mandate of this Court was received and filed in the Circuit Court, a joint decree, by the agreement of the parties. was entered there against the original respondents and their sureties on the appeal to this Court; that the parties to the last named decree stipulated and agreed between themselves that the

Ward et al. vs. Chamberlain et al.

original respondents should make certain payments at stated times on account of the decree, and that if such payments were regularly and punctually made, no execution should issue on the decree, but that they also stipulated and agreed that in default of any such payment as required by the agreement, the complainants might thereupon proceed to collect the amount due and unpaid as they should see fit.

They also allege that two payments of $1,000 each were duly made under the stipulation and agreement, but that the aforesaid respondents subsequently made default, and when a second default had occurred, the complainants caused execution to issue upon the last named decree against the goods and chattels, lands and teneinents of the respondents in that decree, and delivered the same to the Marshal, and that the Marshal, finding no goods or chattels of the execution debtors, and for want of such, levied the execution upon certain parcels of land belonging to them, situated in the Northern District of Ohio, and which are particularly described in the bill of complaint. Rights and interests in, and liens upon the lands are claimed by the other respondents, as the complainants allege, in regard to which they, the complainants, are not particularly advised; and they also allege that the respondents owned the lands levied upon and described in the bill of complaint at and before the time of the rendition of the first named decree, and have so owned the same ever since that time, and that they have no other lands or tenements in the State, and have no goods or chattels liable to execution.

Prayer of the bill of complaint is for discovery, and that the rights of the parties and the dates and validity of their several liens in respect of the lands may be ascertained, and that the lands may be sold and the proceeds applied so far as can of right be done, to the payment of the amount due upon the decrees and for general relief. To the bill of complaint the respondents in the decrees demurred and the complainants joined in demurrer, thereupon the following questions of law occurred before the Court, in regard to which the opinions of the Judges of the Court were opposed.