Deshler v. Dodge/Dissent Catron
Mr. Justice CATRON, dissenting.

The defendant, Dodge, was treasurer and tax-collector of Cuyahoga county, in Ohio, for the year 1852. There was assessed on the tax list of that year, against the Bank of Cleveland, $10,580; against the Merchants Bank of Cleveland, $7,965; on the Canal Bank of Cleveland, $9,216; and on the Commercial Bank of Cleveland, $11,981-making $38,981.

These respective amounts were distrained in bank-notes from each bank, and deposited by the tax-collector with the Cleveland Insurance Company, to his credit. As the four banks whose property was distrained were incapable of suing the tax-collector (who was citizen of Ohio) in the Circuit Court of the United States, they joined in a written transfer of the bank-notes to John G. Deshler, the plaintiff, a citizen of New York, and he obtained a writ of replevin, and process founded on it, out of the Circuit Court of the United States, and declared as a citizen of New York. The defendant Dodge pleaded in abatement, alleging that the causes of action are not within the jurisdiction of the court; to which plea, there was a demurrer.

The first question is, whether this plea in abatement is the proper defence, or should the plea have been in bar.

The plea sets forth the distress for taxes due and unpaid from the banks to the State; that the defendant Dodge was the tax-collector, and had the proper authority to make the distress, and did distrain, by virtue of his authority. By the laws of England, replevin does not lie for goods taken in execution; nor in cases where goods are taken by distress according to an act of parliament, this being in the nature of an execution. 7 Bac. Ab. Replevin and Avowry, C. 71; 6 Comyns's Digest, Replevin, D. 218; Ilsley v. Stubbs, 5 Mass. Rep. 282, per Parsons, Ch. J.

So the statute of Ohio, under which the proceeding in this case was had, gives the writ of replevin, and prescribes the mode of proceeding, requiring an affidavit from the owner (or his agent) that the goods were his, that they are wrongfully detained by the defendants; 'and that said goods and chattels were not taken in the execution, on any judgment against said plaintiff, nor for the payment of any tax, fine, or amercement assessed against the plaintiff;' and it is further provided that any writ of replevin, issued without such affidavit, shall be quashed at the costs of the clerk issuing it; and that he and the plaintiff shall be liable in damages to the party injured. This affidavit, Deshler made, and got the property into his possession on giving bond as the law requires.

The plea distinctly shows that the property was in a condition not to be taken by the writ of replevin, and that the Circuit Court had no jurisdiction to issue the writ, or in anywise interfere with the property by that suit in replevin; and there being no jurisdiction to try title, or proceed further, the plea in abatement was the proper one. And so are the American decisions. Shaw v. Levy, 17 Serg. & Rawle, 99.

The next question is, whether these corporations could lawfully assign to a third person their rights of action, to property out of their possession, and held adversely? On common-law principles such an assignment is champerty. Blackstone says, (vol. 4 135,) champart, in French law, signified a similar division of profits: 'In our sense of the word it signifies the purchasing of a suit, or right of suing; a practice so much abhorred by our law, that it is one main reason why a chose in action, or thing of which one hath the right, but not the possession, is not assignable at common law; because no man should purchase any pretence to sue in another's right.'

I am not aware that this, as a general rule, has been disputed. It therefore follows, as I think, that the assignment was void, and that the causes of action belonged to the four banks as if it had never been made; and they alone, having the right to sue in any form, and being citizens of Ohio, no power to interfere with the tax-collector, Dodge, or the property distrained, existed in the United States court.

A principal objection that I have heard urged is, that as the plea sets forth matter in bar, and commences and concludes in abatement, it is bad for this reason: If we were allowed to rely on such a barren technicality, the assumption is not well founded. In a replevin for goods the defendant may plead property in another (or that the goods were taken in execution) either in abatement or bar. 1 Chit. Pl. 446; Ilsley v. Stubbs, 5 Mass. Rep. 284-5; 1 Johns. Rep. 380; 1 Salk. 5.

As the plaintiff had no title that he could assert, it is of no consequence to him who has, say some of the authorities; but if this second ground was doubtful, it is cured by the act of jeofails.

The thirty-second section of the Judiciary Act declares that no proceeding in civil causes shall be quashed or reversed, for any defect of want of form, but that the courts shall proceed and give judgment according to the right of the cause without regarding such defects, or want of form in any pleading, except in cases of demurrer, where the party demurring shall have specially set down and expressed in his demurrer, the causes thereof. The demurrer here is general, and no mere technicality was allowable.

'The right of the matter in law,' in this case, involves a very grave consideration, such as would in all probability deeply disturb the harmony of the Union, if tax-payers in larger classes, could combine together, let their property be distrained, and then assign it to a third person, a citizen of another State, and on the same day, as in this case, take it from the State authority by a federal court writ, and let it be taken beyond the State's jurisdiction.

It was said by the Supreme Court of Pennsylvania, in a case where property had been seized for taxes due, and taken from the officer's possession by a writ of replevin, 'that the court will not support this form of action in such a case, nor suffer such an abuse of their process. If one man may bring replevin where his goods have been taken for taxes, so may every other person; and thus the collection of all taxes might be evaded. Independently of the act of assembly we are bound to quash this writ.' 3 Yeates's Rep. 82.

I deem the case before us to have been a very disreputable proceeding. The officers of these banks could not make the necessary oath required to obtain a writ of replevin; and to evade the laws of Ohio, the device of an assignment of their separate causes of action to a non-resident was resorted to, who could swear that this property was not distrained for his taxes, and thus apparently comply with the law, so far as an oath was required; whereas he violated its spirit, to bring into a tribunal of the Union a controversy that a State court would not sanction, by practising a fraud on the laws of Ohio, and a fraud on the Constitution of the United States. And what adds to the grossness of this transaction is, the attempt to assign and vest in this plaintiff divers causes of action, by separate assignors, thus seeking to practise champerty, in a form and to an extent not heretofore devised. If four could assign, and their claims be combined in one suit, by the assignee, so could as many hundreds. To sanction the validity of an assignment to a non-resident of property adversely held, and let him sustain a suit for it, would throw open the United States courts to every matter of litigation where property was in dispute exceeding the value of five hundred dollars.

I feel quite confident that the Constitution did not contemplate this mode of acquiring jurisdiction to the courts of the Union, and am of opinion, that the judgment of the Circuit Court sustaining the plea ought to be affirmed.

Mr. Justice DANIEL.

I also dissent from the opinion of the court in this case, and concur in the views so conclusively taken of it by my brother Catron.