Vaughan v. Northup. 15 P.

It has not, in our judgment, any just foundation in the principles of law. We think that Northup, under the letters of administration taken out in Kentucky, was fully authorized to receive the debt due from the government to his intestate; but the moneys so received constituted assets under that administration, for which he was accountable to the proper tribunals in Kentucky; and that distribution thereof might have been, and should have been, sought there in the same manner as of any other debts due to the intestate in Kentucky. It has also been supposed that the act of congress of the 24th of June, 1812, may well entitle the appellants to maintain the present suit; since it places a foreign administrator upon the footing of a domestic administrator, in the District of Columbia. That act provides that it shall be lawful for any person to whom letters testamentary or of administration hath been or may hereafter be granted by the proper authority, in any of the United States or the territories thereof, to maintain any suit or action, or to prosecute and recover any claim in the District of Columbia, in the same manner as if the letters testamentary or of administration had been granted to such person by the proper authority, in the said District. It is observable, that this provision is limited by its terms to the maintenance of suits, and the prosecution and recovery of claims in the District, by any executor or administrator appointed under the authority of any State. It does not authorize any suits or actions in the District, against any such executor or administrator. Its obvious design was, therefore, to enable foreign executors and administrators to maintain suits, and to prosecute and recover claims in the District, not against the government alone, but against any persons whatever, resident within the District, who were indebted to the deceased, and to discharge the debtor therefrom, without the grant of any local letters of administration. In effect, it made all debts due from persons within the District, not local assets, for which a personal representative would be liable to account in the courts of the District; but general assets, which he had full authority to receive, and 8 for which he was bound to account in * the courts of the State from which he derived his original letters of administration. Indeed, the very silence of the act, as to any liability of the personal representative to be sued in the courts of the District for such assets, so received, would seem equivalent to a declaration that he was not to be subjected to any such liability. It fortifies, therefore, rather than weakens the conclusion which is derivable from the general principles of law, upon this subject. The same view of the purport and objects of the act was taken by this court, at the last term, in the case of Kane v. Paul, 14 Pet. 33.

[

Gaines v. Relf. 15 P.

Upon the whole, we are of opinion that the circuit court was right in dismissing the bill for the want of jurisdiction; and, therefore, the decree is affirmed with costs.

5 H. 233; 14 H. 368; 18 H. 100.

EDMUND P. GAINES, and MIRA CLARKE, late WHITNEY, Complainants, v. RICHARD RELF, BEVERLY CHEW, and others, Defendants.

15 P. 9.

Chancery practice does prevail in the circuit court of the United States for the district of Louisiana, and a complainant has a right to proceed in accordance with the rules prescribed by this court for the practice in equity of the circuit courts, and where they are silent, according to the practice of the high court of chancery in England.

THE case is stated in the opinion of the court.

Key and Jones, for the plaintiffs.

Coxe, contrà.

[ *13 ]

* THOMPSON, J., delivered the opinion of the court. This case comes up from the circuit court of the United States, for the eastern district of Louisiana, upon a certificate of division of opinion upon the following points:

1. Does chancery practice prevail, and should it be extended to litigants in this court, and in this cause?

2. Should or not the said order of the 9th of March, 1837, be annulled and vacated?

3. Should or not the cause be placed upon a rule docket, and the complainants be permitted to proceed according to the

chancery practice, and the defendants be required to an- [ *14 ] swer without oyer of the documents prayed for, or a service of the bill in French, as prayed for?

This was a bill filed in the district court of the United States, for that district, on the 28th of July, 1836, according to the course of practice in the courts of the United States, upon the equity side of the court; and in the course of proceeding, the district judge, on the 9th of March, 1837, entered the following order: "W. W. Whitney and wife v. Richard Relf and others. In this case, having maturely considered the prayer for oyer, and for copies of bill in French, the court this day delivered its written opinion thereon, whereby it is ordered, adjudged, and decreed, that the application for oyer of docu.

Gaines v. Relf. 15 P.

ments, and for copies of the bill of complaint, in the manner prayed for, (in French,) be granted; and further, that all future proceedings in this case shall be in conformity with the existing practice of this court."

At the June term of the circuit court, in the year 1839, a motion was made to set aside and vacate that order; and that the complainant might be permitted to proceed in the cause, according to the course of chancery practice. And upon this motion, the division of opinion upon the points above stated, arose.

These points present the same question that has been repeatedly before this court, and received its most deliberate consideration and judgment, namely, whether the proceedings in suits in equity, in the courts of the United States, in the district of Louisiana, are required to be according to the course of chancery practice, and in conformity to that which is adopted and established in the other States. It is not intended to go into an examination of this question as one that is new and undecided, but barely to refer to the cases which have been heretofore decided by this court. In the case of Livingston v. Story, which came before this court, in the year 1835, 9 Pet. 655, the court took occasion to examine the various laws of the United States establishing and organizing the district court in Louisiana, and to decide whether that court had equity powers, and if so, what should be the mode of proceeding in the exercise of such powers. The various cases which had been before the court, involving substantially

the same question, in relation to the States where there were [•*15 ] *no equity state courts, or laws regulating the practice in equity causes, were referred to; and the uniform decisions of this court have been, that there being no equity state courts, did not prevent the exercise of equity jurisdiction in the courts of the United States. And it was accordingly decided that the district court of Louisiana was bound to proceed in equity causes according to the principles, rules, and usages which belong to courts of equity, as contradistinguished from courts of common law; that the acts of congress have distinguished between remedies at common law and in equity; and that, to effectuate the purposes of the legislature, the remedies in the courts of the United States are to be at common law, or in equity, not according to the practice of the state courts, but according to the principles of common law and equity as distinguished and defined in that country from which we derived our knowledge of those principles, subject, of course, to such alterations as congress might think proper to make. But that no act of congress had been passed affecting this question. That the act of congress of 1824,'

14 Stats. at Large, 62.

Gaines v. Relf. 15 P.

could have no application to the case, because there were no courts of equity or state laws in Louisiana, regulating the practice in equity cases. And again, in the same case of Story v. Livingston, which came before the court in 1839, 13 Pet. 368, one of the exceptions taken to the master's report was, that by a rule of the district court, chancery practice had been abolished, and that such a proceeding was unknown to the practice of the court. This court says no such rule appears on the record. But we think the occasion a proper one to remark that, if any such rule has been made by the district court of Louisiana, it is in violation of those rules which the supreme court of the United States has passed to regulate the practice in the courts of equity of the United States; that those rules are as obligatory upon the courts of the United States in Louisiana, as upon all other United States courts; and that the only modifications or additions that can be made in them, by the circuit or district courts, are such as shall not be inconsistent with the rules thus prescribed; and that where such rules do not apply, the practice of the circuit and district courts must be regulated by the practice of the court of chancery in England. That parties to suits in Louisiana have a right to the benefit of these rules, nor can they be denied by any rule or order, without* causing delays, producing unnec- [ 16 ] essary and oppressive expenses; and in the greater number of cases, an entire denial of equitable rights. That this court has said, upon more than one occasion, after mature deliberation, that the courts of the United States in Louisiana, possess equity powers under the constitution and laws of the United States. That, if there are any laws in Louisiana directing the mode of proceeding in equity causes, they are adopted by the act of the 26th of May, 1824, and will govern the practice of the courts of the United States. But, as has been already said, there are no such laws in Louisiana, and, of course, the act cannot apply.

And in the case of Ex parte Poultney v. The City of La Fayette, 12 Pet. 474, this court said the rules of chancery practice, in Louisiana, mean the rules prescribed by this court for the government of the courts of the United States, under the authority given by the act of the 8th of May, 1792.

And again, in the year 1839, in the case Ex parte Mira Clarke Whitney, 13 Pet. 404, application was made to this court for a mandamus to compel the district judge to proceed in this case according to the course of chancery practice, upon a petition to the court representing that he had refused so to do, but had entered an order that all further proceedings should be conformable to the provisions of the code of practice in Louisiana, and the acts of the legislature of

Coons v. Gallagher. 15 P.

that State. Upon this application, this court again declared that it is the duty of the court to proceed in the suit according to the rules prescribed by the supreme court for proceedings in equity causes, at the February term, 1822. That the proceedings of the district judge, and the orders made by him in this cause, (the very order now in question,) were not in conformity with those rules, and with chancery practice; but that it was not a case in which a mandamus ought to issue, because the district judge was proceeding in the cause; and however irregular that proceeding might be, the appropriate redress, if any, is to be obtained by an appeal, after a final decree shall be made in the cause. That a writ of mandamus was not the appropriate remedy for any orders which may be made in a cause by a judge, in the exercise of his authority, although they may seem to bear harshly or oppressively upon the party.

[ * 17 ]

*

Such are the views which have beer heretofore taken by this court upon the questions raised by the points which have been certified in the record before us; and which leave no doubt that they must all be answered in the affirmative. These questions having been so repeatedly decided by this court, and the grounds upon which they rest so fully stated and published in the reports, that it is unnecessary, if not unfit, now to treat this as an open question. It is matter of extreme regret, that it appears to be the settled determination of the district judge, not to suffer chancery practice to prevail in the circuit court in Louisiana, in equity causes; in total disregard of the repeated decisions of this court, and the rules of practice established by the supreme court to be observed in chancery cases.

This court, as has been heretofore decided, has not the power to compel that court to proceed according to those established rules; all that we can do is to prevent proceedings otherwise, by reversing them when brought here on appeal.

All the questions presented by the record are accordingly answered in the affirmative.

5 H. 441.

LESSEE OF EFFIE COONS, and others, Plaintiffs in Error, v. Charles P. GALLAGHER, Defendant in Error.

15 P. 18.

Under the 25th section of the Judiciary Act, (1 Stats. at Large 85,) it is not sufficient that one of the questions therein mentioned was involved in the cause, and might have been decided; it must appear either in terms, or by necessary intendment, that it was decided, and against the right claimed.