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Page:Harvard Law Review Volume 1.djvu/232

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and it was printed and placed in the hands of the Court upon the recent argument, as well as on the argument in the Court below. The correct statement of the case will be of interest, I think, to the profession at large.

The original bill in the Court below, filed at the September term, 1819, prayed for an injunction against Osborn, Auditor of the State, to restrain him from carrying into execution the provisions of an Act of the Legislature of Ohio, which directed the levy and collection of a tax from all banks transacting business in that State, which, of course, included the branch of the United States Bank, — as the auditor threatened to do. The injunction was awarded in the Court below, and both the subpoena and injunction were issued and served under this bill on Osborn and his agent, Harper.

In September, 1820, leave was given to file a supplemental and amended bill and to make new parties. The amended bill charged that subsequent to the service of the subpoena and injunction on the 17th of September, 1819, Harper, who was employed by Osborn to collect the tax, proceeded to the office of the bank at Chillicothe, and by violence seized $100,000 belonging to, or on deposit with, the bank; and that the same had then been delivered to Curry, Treasurer of the State, who, in turn, had delivered it to Sullivan, his successor. The bill prayed that Curry, Sullivan, Osborn, and Harper be made defendants, and be decreed to restore the same, and be enjoined from proceeding further under said Act.

On September 5, 1821, the Circuit Court made its final decree upon the bill and amended bill, the answers of the defendants Curry and Sullivan, and the exhibits; whereby the bill and amended bill, as to Osborn and Harper, were taken for confessed, and thereupon it was adjudged, ordered, and decreed that the defendants, or some of them, pay over and deliver to the complainants the sum of $100,000, being the same which was seized and taken from the complainants, with interest thereon from the 17th day of September, 1819, until paid; and it was further adjudged, ordered, and decreed that “the defendants, and each of them, be perpetually enjoined from proceeding to collect any tax which has accrued, or may hereafter accrue, from the complainants under the Act of the General Assembly of Ohio, in the bill and proceedings mentioned.”

Mr. Wheaton’s report upon this point says only (page 743):