Life & Fire Insurance Company of New York v. Adams, 34 U.S. 573 (1835)

U.S. Supreme Court

Life & Fire Insurance Company of New York v. Adams, 34 U.S. 9 Pet. 573 573 (1835) Life & Fire Insurance Company of New York v. Adams

34 U.S. (9 Pet.) 573

MOTION FOR MANDAMUS TO THE DISTRICT COURT OF THE

UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA

Syllabus

Louisiana. Mandamus. In the district court of the United States, for the District of Louisiana, the district judge refused to extend a judgment previously entered in the district court so as to cover other installments due to the plaintiffs, which became due after it was entered, and to enter a judgment in favor of the plaintiffs, mortgagees, upon a proceeding which had been entered into, with the mortgagor, in relation to the debt due to the mortgagees, in which it was stipulated that judgment should be entered for certain installments to be paid to the plaintiffs, on the nonpayment of the same, the district judge not considering the plaintiffs entitled to have the judgment entered according to the terms of the proceeding without notice to the debtor and his syndics into whose hands his property had passed under the insolvent law of Louisiana, after the execution of the transaction, and after a judgment for part of the debt had been entered, which was the judgment asked to be extended. The district judge was also required to receive a confession of judgment against the mortgagor and the insolvent by an agent of the plaintiffs, and whose powers to confess the judgment the district judge did not consider

adequate and legal for the purpose. An execution had been issued for a part of the debt, upon the previous judgment in the district court, and the execution was put into the hands of the marshal of the United States, who, finding the property of the insolvent defendant, the property mortgaged to the plaintiffs, in the hands of the syndics of the creditors of the mortgagor, according to the insolvent laws of Louisiana; refused to proceed and sell the same, and returned the execution unexecuted. An application was made to the Supreme Court for a mandamus to command the district judge to enter the judgment required of him, and to receive the confession of the judgment by the agent of the plaintiffs, and award execution thereon, and also to compel him to oblige the marshal to execute the execution in his hands, on the property, of the defendant

wherever found. The Court refused to award a mandamus on any of the grounds, or, for any of the purposes stated in the application.

To extend a judgment to subjects not comprehended in it is to make a new judgment. This Court is requested to issue a mandamus to the Court for the Eastern District of Louisiana, to enter a judgment in a cause supposed to be depending in that court not according to the opinion which it may have formed on the matter in controversy, but according to the opinions which may be formed in this Court on the suggestions of one of the parties. This Court is asked to decide that the merits of the cause are with the plaintiff and to command the district judge to render judgment in his favor. It is an attempt to introduce the supervisory power of this Court into a cause while depending in an inferior court, and prematurely to decide it. In addition to the obvious unfitness of such a procedure, Its direct repugnance to the spirit and letter of our whole judicial system cannot escape notice.

Page 34 U. S. 574

The Supreme Court, in the exercise of its ordinary appellate jurisdiction, can take cognizance of no case until a final judgment or decree shall have been made in the inferior court. Though the merits of the cause may have been substantially decided, while anything, though merely formal, remains to be done, this Court cannot pass upon the subject. If, from any intermediate stage in the proceedings, an appeal might be taken to the Supreme Court, the appeal might be repeated to the great oppression of parties. So if this Court might interpose by way of mandamus in the progress of a cause and order a judgment or decree, a writ of error might be brought to the judgment, or an appeal prayed from the decree, and a judgment or decree, entered in pursuance of the mandamus, might be afterwards reversed. Such a proceeding would subvert our whole system of jurisprudence.

The mandamus ordered by this Court, 33 U. S. 8 Pet. 306, directed the performance of a mere ministerial act.

It is the duty of a marshal of a court of the United States to execute all process which may be placed in his hands, but he performs this duty at his peril and under the guidance of law. He must, of course, exercise some judgment in the performance. Should he fail to obey the exigit of the writ without a legal excuse, or should he in its letter violate the rights of others, he is liable to the action of the injured party.

In the particular case in which the creditor asks for a mandamus to the district judge to compel the marshal to seize and sell the property mentioned in the writ, that property is no longer in the possession of the debtor against whom the process is directed, but has been transferred by law to other persons, who are directed by the same law in what manner they are to dispose of it. To construe the law or to declare the extent of its obligation, the questions must be brought before this Court in proper form and in a case in which it can take jurisdiction. This case, so far as it is before any judicial tribunal, is depending in the district court of the United States, and perhaps in a state court in Louisiana. The Supreme Court of the United States has no original jurisdiction over it, and cannot exercise appellate jurisdiction previous to a final judgment or decree further than to order acts, purely ministerial, which the duty of the district court requires it to perform. This Court cannot, in such a condition of a case, construe judicially the laws which govern it, or decide in whom the property is vested. In so doing, it would intrude itself into the management of a case requiring all the discretion of the district judge, and usurp his powers.

Though the Supreme Court will not order an inferior tribunal to render judgment for or against either party, it will, in a proper case, order such court to proceed to judgment. Should it be possible that in a case ripe for judgment the court before whom it was depending could perseveringly refuse to terminate the cause, this Court, without indicating the character of the judgment, would be required by its duty to order the rendition of some judgment; but to justify this mandate, a plain case, of refusing to proceed in the inferior court ought to be made out.

The case is fully stated in the opinion of the Court.

Page 34 U. S. 592

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.

The petition for a mandamus states, among other things, that Christopher Adams of Iberville, in Louisiana, on 16 January, 1824, at New Orleans, executed and acknowledged before a notary public a mortgage of a plantation, called the Belle Plantation, in Iberville, with seventy slaves, for securing to the petitioners divers sums of money, amounting to $32,522.50 at different periods, the last payment to fall due on 18 January, 1829, all bearing interest at the rate of seven percent per annum. At the time of executing the said mortgage, sundry notes were also given for the payment of the same sums of money.

In consequence of the failure of the said Adams to pay any part of the said debt, application was made to the honorable Thomas B. Robertson, then Judge of the District Court of the United States for the Eastern District of Louisiana, for an order of seizure and sale, who granted the same in the following words:

"Let the mortgaged premises set forth and stated in the plaintiff's petition be seized and sold as therein prayed for and in the manner directed by law, subject to the payment of the debts of the plaintiff. THOMAS B. ROBERTSON, Judge U.S. Eastern District of Louisiana."

John Nicholson, the marshal, who seized the mortgaged property, and advertised the same for sale, was stopped by a writ of injunction, on which the following return was made:

"Received this writ of injunction this 18 March, 1826, and served a copy thereof, and of plaintiff's petition, on Ripley and Conrad; on same day released the property at suit of Life & Fire Insurance Company of New York against Christopher Adams, and returned into court 20 March instant."

On 2 May, 1826, the petitioners entered into a transaction with the said Christopher Adams before a notary public in which it was stipulated that the injunction be dissolved, and in which the defendant agreed to confess judgment, and did confess judgment, on all the notes then due.

Page 34 U. S. 593

He further stipulated to confess judgment on the residue of the notes in the deed of mortgage mentioned as they should respectively become due,

"and in default of such confession of judgment, the said Christopher Adams did, by the said transaction, constitute and appoint Henry Eckford, president of the Life & Fire Insurance Company, or his successor in office for the time being, his attorney in fact, and irrevocable, in his name and stead to appear in said court and cause judgment to be entered up against him, the said Adams, for each and every of said notes, with interest, as aforesaid, whenever the same shall arrive at maturity, as aforesaid."

And the said Adams further gave to the said Henry Eckford or to his successor in office for the time being, attorney as aforesaid, full power of substitution in the premises.

And the said Life & Fire Insurance Company, in consideration of such confession of judgment, and preserving all their liens, mortgages and preferences in and over the mortgaged premises, agreed to stay execution until 18 January, 1829, when the last note would arrive at maturity. It was further agreed that this transaction shall be entered upon the records of the Court of the United States for the Eastern District of Louisiana as a decree of said court, and shall have all the force and effect as though it were entered up in open court.

In pursuance of this transaction, a judgment was recorded in the said district court on 18 May, 1826, which the judge died without signing. The petitioners then transferred their interest in the said debt to Josiah Barker, in trust for the Mercantile Insurance Company of New York, with power to use their names in the collection thereof. In the instrument of transfer, the said Life & Fire Insurance Company constituted Josiah Barker, his executors, administrators and assigns, their true and lawful attorney and attorneys irrevocable, in their names, but to and for the use of the said Mercantile Insurance Company of New York, to pursue and enforce in all courts and places whatever, the recovery and payment of the said money.

The honorable Samuel H. Harper, the successor of the honorable Thomas B. Robertson, having refused to complete the said judgment of his predecessor by signing it, a

Page 34 U. S. 594

mandamus was directed by this Court ordering him to do so, in compliance with which the said judgment was signed.

The judgment is in these words:

"Life & Fire Insurance Company of New York v. Christopher Adams."

"In this case, the plaintiffs having filed in this court a transaction, . . . it is therefore ordered, adjudged and decreed that in pursuance of said transaction, the injunction in this case shall be dissolved, and it is further ordered, adjudged, and decreed that judgment be entered up in favor of the plaintiff in pursuance of said transaction for all the notes therein specified, which have become due and payable, with seven percent interest thereon, . . . to-wit the sum of $1,500. . . ."

"It is further ordered, adjudged, and decreed in pursuance of the transaction aforesaid that whenever any of the notes mentioned in the said transaction as not yet arrived at maturity shall become due and payable, that the judgment shall be entered up for the plaintiffs upon all and every of the said notes as they arrive at maturity. . . ."

"It is further ordered, adjudged and decreed that there shall be a stay of execution . . . until the 18 January, 1829, and that if the amount of the judgment in this suit is not then paid . . . , that the lands, slaves and movable property described in the mortgage mentioned in the plaintiff's petition shall be sold according to law to satisfy the judgment in the premises."

Application was at the same time made to the district court to enter a further judgment for the notes which had become due subsequent to 16 May, 1826, which was refused.

The petitioners insisted on their right to require a judgment for the whole sum under the irrevocable power given to confess it, but the judge declared that without notice to the defendants, he would permit no further judgment to be entered.

The petition states at large the different views entertained by the judge and the petitioners on the application. At length the following rule was entered.

"Life & Fire Insurance Company of New York v. Christopher Adams."

"On motion of George Eustis, counsel for the plaintiffs, on

Page 34 U. S. 595

filing all the notes referred to in the transaction on file, it is ordered, in pursuance of the mandamus of the Supreme Court of the United States requiring the honorable judge of this court to sign the judgment rendered in the premises and to order execution to issue, that execution do issue for the whole amount of the judgment."

Under this rule, an execution was issued for the whole sum claimed on all the notes, without any direction that it should be first levied on the mortgaged property. On this account, the marshal, by order of the plaintiff's attorney, returned it unexecuted, and a new execution was demanded.

In consequence of the refusal of Judge Harper to enter judgment for the residue of the notes, Josiah Barker caused a paper to be read in open court, in which, as successor to, and as having entire control over the said notes, and in virtue of full and irrevocable powers from the Life & Fire Insurance Company of New York, he did, in behalf of the defendant, Christopher Adams, by virtue of the compromise entered into between him and Josiah Barker, agent for the said Life & Fire Insurance Company, on 2 May, 1826, confirmed by decree of this Court, confess judgment on all the said notes, which confession he requested might be entered on the clerk's minutes. The judge refused to allow the entry without notice to the opposite party, but offered to grant a rule requiring the defendants to show cause why the judgment should not be entered. This rule being declined, the judge permitted the confession to be filed, subject to all legal exceptions. An execution for the whole sum was thereupon issued, which was accompanied by a letter from Josiah Barker to the marshal requesting him to give notice to Christopher Adams and to Nathaniel Cox, the provisional syndic of the estate of the said Adams, who had become insolvent, that he, the marshal, considered himself in possession of the property in virtue of the former seizure, and should proceed to sell the same; should the marshal refuse to do this, the marshal was required to seize the property and to sell it by virtue of the execution then in his hand.

Supposing from the proceedings of the court in a similar case, in which also he was counsel, that the execution issued in this case would be quashed, and the said marshal having refused to proceed without indemnity against the estate of

Page 34 U. S. 596

Christopher Adams, which had been surrendered under the insolvent law of Louisiana, the said Josiah Barker requested the marshal to return this second execution.

On 30 April, 1834, a new execution was issued on the judgment of 18 May, 1826, to be levied on the mortgaged property in whose ever hands it might be found.

The marshal refused to execute this writ further than by giving notice thereof to Nathaniel Cox, the provisional syndic for the creditors of Christopher Adams, whereupon a petition was presented to the Hon. Samuel H. Harper praying the interposition of the court by commanding the marshal to sell the mortgaged premises without requiring any bond of indemnity, or by granting a rule requiring the marshal to show cause why he should not be attached for contempt of the court in disobeying or refusing to execute its mandate.

The rule was granted before the time for returning the execution had elapsed, and was therefore discharged, whereupon the marshal made the following return:

"May 1, 1834"

"Gave notice of the seizure to Nathaniel Cox, esquire, provisional syndic of C. Adams, the defendant, the property having been previously surrendered by him to his creditors, and accepted by the Court of the Fourth Judicial District of the State of Louisiana, and placed under the charge and control of N. Cox, esquire, as provisional syndic thereof. The further execution of his writ could not be effected."

"Returned 19 May, 1834."

"JOHN NICHOLSON"

"U.S. Marshal"

On the succeeding day, a new rule was awarded against the marshal, who appeared on the return day thereof and showed for cause against it his return on the writ as recited above.

After solemn argument, the judge determined the return of the marshal, that he found the property in the hands of others was prima facie evidence that it belonged to others, and that he should not require the marshal to take the responsibility of enforcing the execution without indemnity.

On 27 May, application was made to the judge to

Page 34 U. S. 597

sign the confession of judgment filed by Josiah Barker in the name of Christopher Adams on 10 March, subject to all legal exceptions, due notice of the filing thereof having been served on Christopher Adams and Nathaniel Cox, but the judge refused to sign the same, saying that it was not a judgment of the court.

The petitioners, conceiving that they are entitled to have the execution issued on 30 April, 1834, enforced against the mortgaged premises by the marshal of the United States, and to have a further execution for the balance of their aforesaid claim, either by the authority of the aforesaid mandamus, or by having the aforesaid confession of the 10th of March last signed or by virtue of the original order of seizure and sale or otherwise; pray a further writ of mandamus, directed to Samuel H. Harper, Judge of the District Court of the United States for the Eastern District of Louisiana, and if necessary also to John Nicholson, marshal of the said court, or otherwise direct such a course of proceeding as will secure the due execution of the mandamus heretofore granted by this Court and afford them such other relief as they may be entitled to in the premises.

Judge Harper appeared by his counsel and showed for cause against issuing the mandamus for which application was made:

That in obedience to a mandamus issued by the Supreme Court of the United States, he did, on 7 March, 1834, sign a judgment entered in this cause by his predecessor in office on 18 May, 1826, and directed that execution should issue thereon. This was a specific judgment for the amount of all the notes which had then become due and which were enumerated in a transaction between the parties then committed to record. It was stipulated in this act of compromise, on which the judgment was entered, that the defendant Christopher Adams should confess judgment on each of the remaining notes as it should fall due, and in default of such confession he consented that Henry Eckford, president of the Life & Fire Insurance Company, or his successor in office for the time being, should appear in court and cause judgment to be entered against the defendant. No confession of judgment has been entered, nor has any judgment been rendered on any one of the said notes. When the

Page 34 U. S. 598

judgment of 18 May, 1826, was signed, Josiah Barker, agent for the plaintiffs, offered to confess judgment in the name and on behalf of Christopher Adams for the residue of the notes. The court refused to receive this confession for the following reasons.

The plaintiffs, instead of causing judgment to be confessed in conformity with the stipulation contained in the transaction, appear to have abandoned their original suit. No step was taken until 13 April, 1829, after all the notes had become due, when a new suit was instituted by the Mercantile Insurance Company of New York, to whom the claim had been assigned, to recover the whole amount due, including the judgment of 18 May, 1826. The defendant filed an answer charging the plaintiffs, among other things, with usury, upon which they, on 12 January, 1831, suffered a nonsuit; when, after this proceeding, the agent for the plaintiffs offered to confess judgment in the name of the defendant, no notice of this intended confession had been given to the defendant, and a rule upon him to show cause against the judgment, was declined by the plaintiffs. Had the person offering to confess judgment even been the regularly constituted attorney of the defendant, there would have been, under all the circumstances of the case, some objection to receiving his confession without notice. But he was not the regular attorney. In the transaction of 2 May, 1826, Christopher Adams stipulated to confess judgment on all the notes as they should become due,

"and in default of such confession, he constituted and appointed Henry Eckford, president of the Life & Fire Insurance Company, or his successor in office for the time being his attorney in fact and irrevocable in his name and stead to appear in court and cause judgment to be entered up,"

and the said Adams further gave to the said Henry Eckford, president as aforesaid, or to his successor in office for the time being, attorney as aforesaid, full power of substitution in the premises. Josiah Barker is not the substitute of Henry Eckford, or his successor in office for the time being.

The permission to file this paper, subject to all legal exceptions, did not convert it into a confession of judgment by the defendant or his attorney, nor could the mere notice that such a paper was filed add to its efficacy, there being no day fixed for contesting it. The transfer of the claim to Josiah Barker,

Page 34 U. S. 599

in trust for the Mercantile Company of New York, does not substitute him for Henry Eckford or his successor in office for the time being.

If either the mortgage acknowledged before the notary or the transaction of 22 May, 1826, had itself the force of a judgment, no mandamus would be required to order the rendition of a new judgment, but these documents require judicial action to make them operative.

It is a circumstance which ought to suggest, and which has suggested circumspection in the proceedings to be taken in this cause, that though the judgment was recorded in May, 1826, and Judge Robertson died late in 1828, and held several courts in the meantime, yet he never signed this judgment, nor was any application made to him for judgment on the notes which afterwards fell due during his life, though they amounted to six or seven.

In showing cause against a mandamus to compel the marshal to levy an execution on the mortgaged property wherever it may be found, Judge Harper observes that after the emanation of the execution, Josiah Barker addressed a petition to the court, stating many facts connected with the execution and complaining that the marshal refused to enforce it without being indemnified, and praying for a rule requiring him to show cause why he should not be attached for contempt in disobeying the mandate of the court. The rule was granted.

The marshal returned,

"That he had given notice of seizure to Nathaniel Cox, provisional syndic of Christopher Adams, the defendant, the property having been previously surrendered by him to his creditors, and accepted by the court of the fourth Judicial District of the State of Louisiana, and placed under the charge and control of Nathaniel Cox, as provisional syndic thereof, the further execution of the writ could not be effected."

Accompanying this return was the following letter:

"John Nicholson, Esq., marshal."

"Dear Sir: As counsel for N. Cox, syndic of the creditors of Christopher Adams, I am authorized to notify you that any attempt to seize the property in his hands, at the suit of the

Page 34 U. S. 600

Life & Fire Insurance Company, will be resisted, and that you will proceed therein at your peril."

"Respectfully,"

"G. STRAWBRIDGE"

The court was restrained from entering into any inquiry in whom the property was vested by the considerations that the creditors who claimed it were not before the court, and could not be brought before it on a rule upon the marshal. The trustee for the Mercantile Company of New York contended, that the property still remained in possession of the marshal, under the order of seizure granted by Judge Robertson; but the court was of opinion that such presumption would be extravagant, inasmuch as the injunction continued in force for more than eight years, for, though dissolved in terms by the judgment of May, 1826, that judgment, by the laws of Louisiana, had no force until it was signed in pursuance of the mandamus of the Supreme Court. In addition to this, it appears from the return of the marshal that the property was released on receiving the injunction.

The judge also conceived, that by a fair construction of the transaction of 2 May, 1826, the plaintiffs must be understood to have agreed to discontinue their suit in consideration of the dissolution of the injunction, as a prosecution of the suit, after the dissolution of the injunction, was not within the intention of the parties. He was also of opinion that the property being found in possession of a third party is no prima facie evidence that it belonged to that third party; but that this was a question which could not be investigated, on a rule against the marshal, in the absence of the party interested. He was also of opinion that the marshal, not being indemnified and proceeding at his peril, ought to be governed by his own judgment, and would make himself personally liable to the creditors of Adams if they should thereafter establish their right to the property ceded to them. This liability has been established by the Supreme Court of Louisiana against this very marshal, in which the court said, "that if acting in his capacity as marshal, he wrongs a citizen of a state, he is individually answerable, and in her courts." In another case, judgment was given against the same marshal for the amount

Page 34 U. S. 601

of money made by him on an execution, issued out of the district court of the United States, under which he had seized and sold property in the hands of the syndic of the debtor. The judge adds that he has never thought it his duty to compel the officers of the court to perform acts for the benefit of others, which might work their own ruin.

Counsel have given more precision to the general application of the petitioners by presenting five separate and alternative prayers for a mandamus commanding a particular thing, each application founded on the rejection of that which precedes it.

The first is for such an execution as that which was issued on 12 March, 1834, at the instance of the plaintiffs, being an execution for the amount of all the notes secured by the mortgage and transaction in the petition mentioned; to be levied on the mortgaged property, but if not sufficient, then on the property generally of the said Christopher Adams, whereof he was owner on the 18 May, 1826, into whose hands soever the same may have come.

The applicant does not inform us whether the execution is to be issued on the judgment entered by Judge Robertson and signed by Judge Harper, or on the confession made by Josiah Barker in the name of Christopher Adams on 10 March, 1834.

Judge Harper has shown for cause against an execution for the whole debt, on the judgment entered by Judge Robertson on 18 May, 1826, that the whole debt was not then due, and that the judgment in its terms, comprehends that portion of the debt only which was actually due. He shows for cause against any execution founded on the paper delivered by Josiah Barker, on 10 March, 1834, that Josiah Barker exhibited no power of attorney from Christopher Adams, and showed no right to personate him. That the court did not receive his confession as the confession of Christopher Adams, nor enter any judgment upon it. Of consequence, that act cannot warrant an execution of any description.

The record, we think, verifies these statements.

If the cause shown against a mandamus to issue such a writ of execution as is asked, or the judgment in its present state be deemed sufficient, then the petitioners ask for a mandamus

Page 34 U. S. 602

commanding the judge to amend such judgment by extending the terms thereof, so as to make the same absolute upon all the notes and sums of money enumerated in the original transaction, &c.

To extend the judgment to subjects not comprehended within it is to make a new judgment. This Court is requested to issue a mandamus to the Court for the Eastern District of Louisiana to enter a judgment in a cause supposed to be depending in that court, not according to the opinion which it may have formed on the matter in controversy, but according to the opinion which may be formed in this Court on the suggestions of one of the parties. This Court is asked to decide that the merits of the cause are with the plaintiffs, and to command the district court to render judgment in their favor. It is an attempt to introduce the supervising power of this Court into a cause while depending in an inferior court, and prematurely to decide it. In addition to the obvious unfitness of such a procedure, its direct repugnance to the spirit and letter of our whole judicial system cannot escape notice. The Supreme Court, in the exercise of its ordinary appellate jurisdiction, can take cognizance of no case until a final judgment or decree shall have been made in the inferior court. Though the merits of the cause may have been substantially decided, while anything, though merely formal, remains to be done, this Court cannot pass upon the subject. If from any intermediate stage in the proceedings an appeal might be taken to the Supreme Court, the appeal might be repeated to the great oppression of the parties. So if this Court might interpose by way of mandamus in the progress of a cause, and order a judgment or decree; a writ of error might be brought to the judgment, or an appeal prayed from the decree, and a judgment or decree entered in pursuance of a mandamus might be afterwards reversed. Such a procedure would subvert our whole system of jurisprudence.

The mandamus ordered at the last term, directed the performance of a mere ministerial act. In delivering its opinion, the Court said:

"On a mandamus, a superior court will never direct in what manner the discretion of an inferior tribunal shall be exercised, but it will in a proper case require the inferior court to decide."

To order the district court to give

Page 34 U. S. 603

judgment for the plaintiffs, is "to direct in what manner its discretion shall be exercised."

Sufficient cause is shown against granting this prayer.

In the event of this prayer's being rejected, the court is asked to award a mandamus to the district judge commanding him to consummate the interlocutory part of the said judgment by entering and signing final judgment upon and for all the notes and sums of money mentioned in the transaction aforesaid as not being then due, and thereupon to issue such execution, &c.

This prayer does not vary substantially from its predecessor. It requires the same interference of the Supreme Court in the proceedings of the inferior court while in progress, and the same direction how its discretion shall be exercised. It requires a direction to the district court to give judgment for one of the parties, and prescribes the party for which it shall be given. The cause shown against granting the preceding prayer applies equally to this.

Should this last prayer also be rejected, the court is next asked to award a mandamus commanding the district judge to compel the marshal duly to execute such process as may be issued, notwithstanding the cession of the estate of the said Adams and the appointment of a provisional syndic thereof. It is the duty of the marshal to execute all process which may be placed in his hands, but he performs this duty at his peril and under the guidance of law. He must, of course, exercise some judgment in its performance. Should he fail to obey the exigit of the writ without a legal excuse, or should he, in obeying its letter, violate the rights of others, he is liable to the action of the injured party.

In the particular case in which the creditor asks for a mandamus to the district judge to compel the officer to seize and sell the property mentioned in the writ, that property is no longer in possession of the debtor against whom the process is directed, but has been transferred by law to other persons, who are directed by the same law in what manner they are to dispose of it. To construe this law or to declare the extent of its obligation, the questions must be brought before the court in proper form and in a case in which it can take jurisdiction. This case, so far as it is before any judicial tribunal, is depending in a district court of the United States, and

Page 34 U. S. 604

perhaps in a state court of Louisiana. The Supreme Court of the United States has no original jurisdiction over it, and cannot exercise appellate jurisdiction previous to a final judgment or decree further than to order acts, purely ministerial, which the duty of the district court requires it to perform. This Court cannot, in the present condition of the case, construe judicially the laws which govern it or decide in whom the property is vested. In so doing, it would intrude itself into the management of a case requiring all the discretion of the district judge, and usurp his powers.

The mandamus cannot be granted as prayed.

The fifth prayer asks a mandamus requiring the judge to compel the marshal to execute the writ of execution heretofore issued on 30 April, 1834, on the said judgment for the amount of the notes of the said Adams, due on 16 May, 1826, notwithstanding the cession and other matters mentioned by the marshal in the return thereof.

This prayer differs from that which preceded it only in the amount for which the execution is to issue. So far as respects the interference of the Supreme Court in construing laws not regularly before it and controlling the discretion of the district court, they stand on precisely the same principle. The objections, therefore, which were stated to granting the fourth prayer apply equally to the fifth.

The Court cannot grant a mandamus ordering the district court to perform any one of the specific acts which have been stated in the petition, or in the more particular application contained in the statement presented by counsel.

Though the Supreme Court will not order an inferior tribunal to render judgment for or against either party, it will, in a proper case, order such court to proceed to judgment. Should it be possible that in a case ripe for judgment, the court before whom it was depending could perseveringly refuse to terminate the cause, this Court, without indicating the character of the judgment, would be required by its duty to order the rendition of some judgment; but to justify this mandate, a plain case of refusing to proceed in the inferior court ought to be made out. In Ex Parte Bradstreet, 8 Pet. 590, this Court said:

"We have only to say that a judge must exercise his discretion in those intermediate proceedings which take place

Page 34 U. S. 605

between the institution and trial of a suit, and if in the performance of the duty he acts oppressively, it is not to this Court that application is to be made."

"A mandamus or a rule to show cause is asked in the case in which a verdict has been given for the purpose of ordering the judge to enter up judgment upon the verdict. The affidavit itself shows that judgment is suspended for the purpose of considering a motion which has been made for a new trial. The verdict was given at the last term, and we understand it is not unusual in the State of New York for a judge to hold a motion for a new trial under advisement till the succeeding term. There is then nothing extraordinary in the fact that Judge Conklin should take time till the next term to decide on the motion for a new trial."

In the case now under consideration, no application is made for a mandamus directing the court generally to proceed to judgment. The petitioners require a mandamus ordering the judge to render a specific judgment in their favor. It is not even shown that the case is in a condition for a final judgment; nor is it shown that the judge is unwilling to render one. The contrary may rather be inferred from his readiness to grant a rule on the defendant requiring him to show cause why judgment should not be rendered. In a case of such long standing, where it is more than possible the defendant might not be in court, where judgment is asked on a confession made by the agent of the plaintiffs, professing to be the attorney of the defendant, the judge may be excused for requiring that notice should be given to the defendant.

The rule is discharged.

MR. JUSTICE McLEAN.

I concur with the opinion which has been delivered.

At first I was inclined to think that under the general prayer for relief, the Court might award a mandamus directing the district judge to enter a judgment in the case. Not that this Court, on a mandamus, should direct the district court to enter a judgment in behalf of either party, but that in the due exercise of its discretion, it should proceed to render a judgment in the case in order that such judgment might be brought before this Court for revision by writ of error.

Page 34 U. S. 606

But as there is no specific prayer for a mandamus on the ground that the court has refused to give a judgment, I am content, as it involves a mere question of practice, to agree with my brother judges that a prayer for this writ must point out specifically the ground of the application.

Whatever effect the insolvent law of Louisiana may have to divest the jurisdiction of a state court where the property of a defendant is transferred to the syndic, such cannot be the effect on the jurisdiction of a court of the United States. No state law or proceedings under a state law can divest a court of the United States of jurisdiction. And in this case, I can entertain no doubt that the district court, having jurisdiction, may proceed to a final judgment. Whether an execution issued upon such judgment may be levied upon the property in the hands of the syndic presents a question which depends upon very different principles.

On consideration of the motion made in this case for a mandamus to be addressed to the honorable Samuel H. Harper, District Judge of the United States for the Eastern District of Louisiana, and of the arguments of counsel thereupon had as well in opposition to as in support of the motion, it is now here ordered and adjudged by this Court that the mandamus prayed for be and the same is hereby refused, and that the said motion be and the same is hereby overruled.