This is an application for leave to file a petition for mandamus directing the circuit court of the United States for the northern district of Texas to vacate or modify a decree heretofore entered by that court in a certain cause therein pending, wherein Hunter and others were complainants, and the City National Bank of Ft. Worth, Tex., was defendant, on the ground that in rendering such decree the circuit court departed from the mandate of this court sent down on the disposition of an appeal from a former decree in the cause, as reported in Bank v. Hunter, 129 U.S. 557 , 9 Sup. Ct. 346.
We do not feel required to restate the case, as set forth at length when it was then before us. Briefly, on May 20, 1880, one O'Neal was indebted to Hunter, Evans & Co., and also to the City National Bank, each of whom claimed to hold a lien, to secure the indebtedness, on certain cattle owned by O'Neal. One Dawson was desirous of purchasing the cattle, and the result was that the parties in interest entered into three written agreements, under which the cattle were sold and delivered to Dawson; he executing a note for the purchase price, payable to the order of Hunter & Co. and the bank, to be paid, and the proceeds distributed, according to certain terms and stipulations agreed on. The note was delivered, upon its execution, to Henry E. McCulloch, who was selected by Hunter & Co. and the bank as their joint agent to accom- [153 U.S. 246, 247] pany the cattle, and receive and distribute the proceeds as sales were made by Dawson. Certain amounts were received and distributed accordingly. Shortly after, and on May 31st, Hunter & Co. filed a petition in Montague county, Tex., against O'Neal and Dawson, to foreclose a mortgage given by O'Neal to them on the cattle then in possession of the latter, and sequestrated the cattle. Thereupon, Dawson replevied the cattle, and gave a bill of sale of them to the bank, which furnished the security upon the replevin bond, and agreed to hold the parties harmless from any liability thereon. The bank notified McCulloch that his agency had ceased, and took possession of the herd through its agent, one Ellis, who had a power of attorney from the bank to make title to the cattle as sold off by Dawson, and receive the proceeds. The suit of Hunter & Co. in Montague county was removed to the circuit court, and they there filed an amended bill, September 30, 1881, to which they made the bank a party defendant, and prayed in the alternative, that, if they were mistaken in seeking a foreclosure, a decree be rendered against Dawson and the bank for the amount of money coming to them from the proceeds of the cattle. The cause was heard in the circuit court and a decree rendered, which, upon appeal to this court by the bank, was reversed, and the cause remanded, with a direction to enter a decree in conformity with the opinion. The opinion found the amount due from O'Neal to Hunter & Co. February 20, 1880, to which certain interest was to be added, as pointed out, down to the date at which Dawson paid the balance due on his note into the bank,-a matter not made clear on that record,-and also directed the amount of the bank's debt to be ascertained by adding certain interest to O'Neal's note held by it down to the same date. From these two indebtednesses the pro rata to which complainants and the bank were entitled out of the fund to be distributed was to be computed, and, from the amount to come to complainants according to this computation, certain deductions were directed to be made, and the balance to be paid out of the money deposited by Dawson, as of the date of such deposit, the bank retaining the remainder. After the [153 U.S. 246, 248] cause was remanded the parties entered into the following stipulation:
The circuit court thereupon rendered a decree, providing, among other things, that Hunter & Co. recover of the bank the sum of $12,084.85, together with interest thereon from date of decree at the rate of 8 per cent. per annum, and the costs after September 30, 1881,-the date of the filing of [153 U.S. 246, 249] complainants' amended bill,-all prior costs being adjudged against Hunter & Co. The bank then prosecuted an appeal to this court, assigning as error that the circuit court included in the recovery against the bank interest on complainants' portion of the money, and awarded costs. The contention was that the allowance of the interest was inconsistent with the mandate of this court, and the amount thus questioned was 'nearly or quite $4,000. When the appeal came to be considered, we found ourselves compelled to dismiss it because the sum in dispute was not sufficient to give us jurisdiction, and no appeal lies from a mere decree for costs. Bank v. Hunter, 152 U. S. --, 14 Sup. Ct. 675.
A. H. Garland, for the motion.
Mr. Chief Justice FULLER delivered the opinion of the court.
Application is now made for mandamus, and this is the proper remedy, if the mandate of this court has been disregarded; but, if not, the application for leave to file should be denied.
We are of opinion that whether or not the proceeds of the cattle were received and retained by the bank under such circumstances as to render it liable to Hunter & Co. for interest on their pro rata share was a matter which was necessarily so far left at large by our former decree that we cannot hold that the mandate was disregarded by the decree rendered thereunder by the circuit court.
The Dawson note was held in trust for Hunter & Co. and the bank, payment to be worked out from the cattle through the agency of McCulloch; and when the bank terminated McCulloch's agency, took possession of the herd, and received the proceeds of the cattle from Ellis, it received the pro rata share of Hunter & Co. in trust for them, as the litigation [153 U.S. 246, 252] turned out. And nothing in the directions we gave prevented the circuit court from holding the bank to a liability to pay interest thereon, if, in its judgment, it was justified in so doing by the facts disclosed on the hearing. Ellis was the agent of the bank, and the money was kept and used by the bank, being carried on the books to the credit of the 'Dawson bond account,' subject to the determination of this suit. The language of the stipulation-that the amount collected was deposited by Ellis as a 'general deposit,' and used 'as other general deposits,' 'as other of its funds'- does not change the legal effect of the transaction, so far as Hunter & Co. were concerned, who had nothing to do with the agreement of the bank to indemnify Dawson's sureties on the replevin bond. The use of their part of the money, under the circumstances, may have induced the circuit court to arrive at the result complained of. We are not, however, called on to say whether the allowance of the interest was or was not correct, as the only question is whether that court disobeyed the mandate, which we do not think it did.
As to the costs, we are also clear that the action of the circuit court was not precluded by the former decision.
Leave to file the petition must therefore be denied.