Camplin v. Burton

25 Ky. 216, 2 J.J. Marsh. 216, 1829 Ky. LEXIS 72

• Court: Court of Appeals of Kentucky
• Decided: October 9, 1829
• Status: Published

Opinion

Judge Robertson

delivered the opinion of the court.

Burton enjoined a judgment which Camplin had obtained against him, for the consideration of slaves sold by Camplin to him. The ground of the injunction, was an alleged fraud by Camplin, in the sale. Burton retained the possession of the slaves, and the circuit court dissolved the injunction, and dismissed the bilh

This court reversed the decree, and directed the circuit court to restore the slaves to Camplin, rescind the contract and perpetuate the injunction.

When the cause was remanded to the circuit court, a decree was pronounced, cancelling the contract, perpetuating the injunction and directing Burton to restore to Camplin, the slaves.

From this decree Camplin prosecuted a writ of error with a supersedeas.

The decree is improvident and must be reversed.

It was improper to rescind the contract and perpe^ tuate the injunction, until Burton had returned the slaves. To carry the opinion of this court into' complete effect, the slaves should be restored, and then the contract rescinded. This will place the parties “en statu quo.” i Otherwise, Camplin will have lost the benefit of his contract, and may lose also, his slaves. For they may have become inaccessible to the court, and Burton may be insolvent.

Hanson, for plaintiff; Turner,, for defendant.

Tbe chancellor should see that thé slaves aré restored or ascertain that their restoration has become impossible, without the fault or act of Burton, before the injunction is perpetuated; and not, by a final decree, liberate the parties from thier contract, before they are reinstated, or are as nearly reinstated as they can be, by his interposition.

If Burton will return the slaves, he will be entitled to relief. If he will not restore the possession of them, he is not entitled to a decree.

If the court could not enforce its decree on Burton, so as to force a restitution, it could not then revoke its decree in his favor. That is now beyond its control.

Wherefore, the decree is reversed, and the cause remanded, that such a decree may be rendered as is indicated by this opinion, and such orders made as may effectuate the opinion of this court, heretofore pronounced.

If the slaves have died without the fault or negligence of Burton, his injunction should be perpetuated". If they are alive and he will not or cannot restaré them, the inj unction should be dissolved.