Northwestern Distilling Co. v. Corse

DRUMMOND, District Judge. The only difference in the language of the laws of 1789 [1 Stat. 93] and of 1866 is that in the law of 1866, the words are: “All attachments made, and all bail and other security given upon such suit or prosecution, shall be and continue in like force and effect as if the same suit or prosecution had proceeded to final judgment and execution in the state court.” Section 67, Act July 13, 1866 [14 Stat. 171)]. If the word “attáchments” did not applyi^to the case of an injunction as is conceded, ¿o the words “bail or other securities” apply? There was a very serious question connected with this originally, and good deal of doubt, at the time, in the minds of the profession, I think, as to the correctness of the decision of Judge McLean, upon the point. McLeod v. Duncan [Case No. 8,898]. The profession was not inclined to acquiesce altogether in that decision, and I recollect that it struck the profession with some surprise. They had taken it for granted that the injunction was not necessarily dissolved; but the more that they reflected upon it, I think, the more they became convinced that, on the whole, the decision was sustainable. It has now been generally acquiesced in' and followed in ‘this court, and even if there is a doubt as to its correctness, I should not feel inclined at this time to change the practice unless upon directions from a higher court. The principle of that decision, under that law and under this, is applicable to the particular point. All attachments a'nd all bail or other securities given upon the suit or prosecution shall be and continue in like force, etc. Judge McLean, it is clear, did not think that the term attachment was sufficiently comprehensive to include injunction. The question is, whether if “attachment” did not include injunction, “bail or other securities” did. I do not see upon what principle. Geo. C. Bates, Esq.: Suppose there had been a hearing on the motion to dissolve the injunction and a hearing on testimony token and the court had made it final, and the case was then brought here, would the injunction be dissolved? THE COURT: I do not see how there could be such a case without a final hearing. There would be a trial quoad hoc, and this law requires that it should be removed before trial. The language is “at any time before trial.” That is, the trial must not have commenced for the final disposition of the cause. If it is, it is too late under this law. I have to treat the injunction as ipso facto dissolved by the removal of the case. See further Hatch v. Chicago, R. I. & P. R. Co. [Case No. 6,204],