author: Mr. Justice GRIER Mr. Justice McLEAN.

text:
    Thomas Moore, Executor of Richard Eels, Plaintiff in Error, v. The People of the State of Illinois.
    A State, under its general and admitted power to define and punish offences against its own peace and policy, may repel from its borders an unacceptable population, whether 'paupers, criminals, fugitives; or liberated slaves ; and, consequently, may punish her citizens and others who thwart this policy, by liarboring, secreting, or . in.any way assisting such fugitives.
    It is no "objection to such legislation that the offender may bo liable to punishment under the act of Congress for the same acts, when injurious to the owner of the fugitive slave.
    The case of Trigg v. The Commonwealtli of Pennsylvania, (16 Peters, 539,) presented the following questions, which were decided by the court:
    1. That under anil, in virtue of the Constitution of the United States, the owner of a slave is clothed with entire authority in every State in the Union, to seize and recapture liis slave, wherever he can do it without illegal violence or a breach of the peace.
    2. That the government of the United States is clothed with appropriate authority and functions to enforce the delivery, on claim of the owner, and has properly exercised it in the act of Congress of Í2th Pebruary, 1793.

      3. That any State law or regulation which interrupts, impedes, limits, embarrasses,. ■delays, or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service, is void.
    This court has not decided that State legislation in 'aid of the claimant, and which does not directly nor indirectly delay, impede; or frustrate the master in the'exorcise of his right under the Constitution, or in pursuit of his remedy given by the act of Congress, is void.
    This case was brought up from the Supreme Court of- the State of Illinois,-by a writ of error issued under the 25th section ■of the Judiciary Act.
    The section of the law of Illinois, under which Eels was- indicted' in 1842, and the facts in the case are set forth in the opinion of the court, and need not be repeated. The court before which he was tried, fined him four hundred dollars, and' the- Supreme Court of Illinois affirmed -the judgment. The case is reported in 4 Seammon’s Rep. 498.
    It was argued, in this court, by Mr. .Chase, for the plaintiff in error,
    and a printed argument filed by Mr. Dixon on the same side; and by Mr. Shields for the. defendant in error, who filed a printed argument prepared by Mr. McDougall, Attorney-General of Elinois.
    The arguments urged by the counsel for the plaintiff in error, in order to show that the law of Illinois was void, were, —
    1. That the act of Congress, passed in 1793, was constitutional ; that the power of legislating upon the subject of fugitive slaves, ought to be vested in Congress; that the act had been declared to be constitutional by the following authorities: 16 Peters, 620 et seq.; 9 Johns, 67; 12 Wendell, 311; 2 Pick. 11; 5 Sergeant & Rawle, 62; 2 Wheeler’s Crim. Cases, 594.
    2. That the power was vested exclusively in Congress, and if there was an omission to legislate, silence was as demonstrative of its will as express legislation. 5 Wheat, 1, 21, 22; 16 Pet. 617 et seq.

    3. That admitting the pourer to be concurrent, its exercise by Congress supersedes all State legislation. 1 Kent, 380, 391; 1 Story, Com. on Con. § 437 to 443; 12 Wend. 316, 325; 1 Pet. Con. Rep. 429; 4 Id. 414-5; 2 Wheel. Crim. Cas. 594; 5 Wheat. 21, 24, 36, 70, 75; 14 Wend. 532-6; 16 Pet. 617-8.
    4. The act of Congress of 1793, and the law of Illinois, conflict with each other.
    5. Two laws legislating over the same offence, cannot exist at the same time.
    6. If so, the law of Illinois must give way
    It was particularly pressed upon the court by Mr. Chase, that this court had decided, in the case of Prigg v. Pennsylvania, (16 Pet. 539,) that all State legislation upon the subject of fugitive slaves, was void, whether professing to be in aid of the legislation of Congress, or independent of it, was void; and he claimed the benefit of that decision.
    The' counsel for the defendant in error, commented- oh the various positions above, mentioned; and the following extract from the brief,' shows the principal ground relied upon to vindicate the State law.
    The case just cited, (Houston'v.-Moore, 5 Wheaton-,) leads directly to the question; What is 'the particular power exercised by the State in the present' instance ; whence derived, and what the design and mode of its operation ? And it may be -as well here to remark, that it is not alone in the light of an act in aid of the legislation of Congress, that this law is to be considered. The question before this court is one of pow~er — of power in the State to legislate in the particular manner. If the power exists in the" State, no matter from whence derived, the validity of the law cannot be questioned.
    It is now contended that the power, in question belongs to the States .in virtue of their original and- .unsurrendered sovereignty ; in virtue of those great consérvative powers which all governments must have, exercise, and maintain for their own protection and preservation; powers which, in the language of Mr, Madison, (Federalist, No. 45,) “ extend to all the objects which, 'im'the ordinary course of affairs, concern the lives, liberties,' and properties of the people; and the internal order, improvement, and prosperity of the- State.”
    In the City of New York v. Miln, (11 Pet. 139,) the court say, “ that a State has the same undeniable, and unlimited jurisdiction over all persons and things within its territorial limits' as any foreign nation, when that jurisdiction is not surrendered or restrained by the Constitution of the United States,” &é.
    It has been, before remarked, that slavery exists to a limited extent in the State of Illinois; nevertheless, it is the settled policy of the State to discourage the institution, as~ also a free negro population. • By numerous acts of legislation, before and since the present constitution, it has been made penal to iniroduce negroes from other States, except upon severe conditions. Negroes have been and continue to be regarded as constituting a vagabond population; and to prevent their influx -into the State, restrictive, laws have beén from time to time passed.- In connection with this regulation is to ■ be found the law in question, prohibiting persons within the State from harboring or secreting fugitive negro slaves. The question whether a State may not prohibit its citizens from harboring.or protecting felons, fugitives from other countries, is the same with this. It is possible that some new State might become a country of refuge for .the accused and convicted outcasts of older and stronger governments; would that State be compelled to receive and welcome the moral pestilence ? Certainly not; the right of self-preservation, necessary to all governments, would justify any act required to repel them from her borders.
    It was upon this principle, as a sovereign power in the State, that this court sustained the law of New York, intended to-prevent the influx of a pauper and vagabond population at the port of New York. City of New York v. Miln, (11 Pet.-i42.) In which case the court say, “We think it as competent and as necessary for a State to provide precautionary measures against-the moral pestilence of paupers and vagabonds, and possibly convicts, as it is to guard against the physical pestilence which may arise from unsound and infectious articles imported, or from a ship the crew of which may be laboring under an infectious disease.”
    It was in favor of this same power that the court, in Prigg v. Pennsylvania, (16 Pet. 625,) qualify the general terms of their, opinion, — “ To guard, however, against any possible misconstruction of our views, it is proper to state that we are by no means to be understood, in any manner whatsoever, to doubt or to interfere with the. police power belonging tó the States, in-virtue of their general sovereignty,” &c.
    The State may arrest, restrain, and even remove from its borders, the. fugitive slave, and so long as the rights of the owner are not interfered with, it is a constitutional exercise of power. If, then, the greater power exists, that over the person of the slave, for the purpose of police, certainly the- lesser power, that over the citizen, preventing him from harboring, secreting, or protecting the’ slave, for like purposes of police, will n'ot be denied.
    It will be perceived that this view of the case settles the point made in the opposing argument, that the law of Illinois is a violation of the Federal and State Constitutions, which prohibit two punishments for one offence.. A legal offence is the' breach of a law. - Eels, in harboring a fugitive slave, violated a law of this State,' by interfering with its internal policy. He also violated a law of Congress, by interfering with the rights of the slave-owner secured by- the Constitution. The one act constitutes two distinct offences against the several laws of district jurisdictions. Within thg same jurisdiction one act. frequently constitutes several offences) as in the familiar cases of assaults, libels, and other personal injuries, which are offences against the persons injured, and at the same time.offences against the government; and the different offences may be separately tried, -and separately punished. The constitutional provision is not, that no person shall be subject, for the same act, to be twice put in jeopardy of life or hmb; but for the same offence, the same violation of law, no person’s life or limb shall be twice put in jeopardy.
   Mr. Justice GRIER

delivered the opinion of the court.

The plaintiff in error was indicted and convicted under the criminal code of Illinois for “ harboring and secreting a' negro slave.” The recofd was. removed by writ of error to the Supreme Court 9^ that State; and it was there contended, on behalf of the plaintiff in error, that the judgment and conviction should be reversed, because the statute of Illinois, upon which the indictment was founded, is void, by reason of its being in conflict with that article of the Constitution of the United States which declares “ that no person held. to labor or service in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such’ labor may. be due.” And, also, because said statute is in conflict with the act of Congress on the same subject.

That this record presents a case of which this court has jurisdiction under the twenty-fifth section of the judiciary act, is not disputed.

The statute of Illinois,- whose validity is called in question, is contained in the l49th section of the Criminal Code, and is as follows: “ If any person shall harbor or secrete any negro, mulatto, or person of color, the same being a slave or servant owing service or labor to any other persons, whether they reside in this State or in any Other State or territory, or district, within the ■ limits and under the jurisdiction of the United States, or shall in any wiseXbinder or prevent the lawful owner or owners of such slaves or servants from retaking them, in a lawful manner, every such-person so offending shall be deemed guilty- of a misdemeanor, and fined not exceeding five .hundred dollars, or imprisoned not exceeding six months.”

The bill of indictment, framed finder this statute, contains four counts. The first- charges that Richard Eels, a certain . negro slave, owing service to one C. D., of the State of Missouri, did unlawfully secrete, contrary to the form of the statute,” &c. •

2. That he harbored the same.

4. For unlawfully secreting a negro owing labor in the State of Missouri to one C. D., which said negro had secretly fled, from said State and from- said C. D.

4. For unlawfully preventing C. D., the lawful owner of 'Said slave, Irom retaking him. in a lawful manner, by secreting the said negro, contrary to the form of the statute, &c.

In view of this section of the Criminal; Code of Illinois, and this indictment founded on it, we are unable to discover any thing, which conflicts with the provisions of the Constitution of thi. United States or'the legislation of Congress on. the subject of fugitives.from labor. It does not' interfere in any manner witb the owner or claimant in the exercise of his right tq arrest and recapture- .his slave. It neither interrupts, delays, or im- , pedes' the right of the .master to immediate possession. It gives no immunity or protection to the fugitive. against the claim of ■his master. It acts .neither on the master nor his slave; on his right or his remedy. It prescribes a rule of conduct for the citizens of Illinois. It is but the exercise of the power which every State is.' admitted to possess, of defining offences and punishing’ offenders against its laws. The power to make municipal regulations for the restraint and punishment of crime, for the preservation of the health and morals of her citizens, and of the public peace, has never been surrendered by the States, or restrained by the Constitution of the United States. In the exercise of this power, which has been denominated the police power, a State has .a right to make it a penal offence to introduce paupers,- criminals, or fugitive slaves, within their borders, and punish those who thwart this policy by harboring, concealing, or secreting such persons. Some of the States,-coterminous'with those who tolerate slavery1, have found it necessary to protect themselves' against the influx' either of liberated 'or fugitive slaves, and to repel from their' soil a population likely, to become burdensome and injurious, either as paupers or criminals.

Experience has shown, also, that the results of such conduct as that prohibited by the-statute in question are not only, to demoralize their citizens -who live in daily and open disregard-of the duties imposed upon them by the Constitution and laws, but to destroy the harmony and kind feelings which should exist between citizens of this Union, to create border feuds and bitter animosities, and to cause breaches, of the peace, violent assaults, riots, and murder. No one can deny or doubt the right of a State to defend itself .against evils of such magnitude, and punish, those who perversely persist in conduct which promotes them.

. As this statute does not impede the master in the exercise of his rights', so neither does it interfere to aid or assist him. If a State, in the exercise of its légitimate'powers in promotion of' its policy of excluding an unacceptable population,, should thus indirectly benefit the master of á fugitive, no one has a right to complain that it has, thus far at least, fulfilled a duty assumed or imposed by its compact as a member of the Union.

But though we are of opinion that such is the character, policy, and-intention of the statute in question, and that for this reason alone the power of the State to make and enforce such a law cannot be doubted, yet we would not wish it to be inferred, by any implication from what we have said, that any-legislation of a State to aid and assist the claimant, and which does not directly nor indirectly delay, impede, or frustrate the reclamation of a fugitive, or interfere with the claimant in the prosecution of his other remedies,' is necessarily void. This question has not been before the court, and cannot be decided in anticipation of future cases.

It has been urged that this act is void, as it subjects the delinquent to a double punishment for a single offence. But we think that neither the fact assumed in this proposition, nor the inference from it, will be found to be correct. The offences for which the fourth section of the act of 12th February, 1793, subjects the delinquent to a fine of five hundred dollars, are different in many-respects from those defined by the statute of Illinois. The- act of Congress contemplates recapture and reclamation, and punishes those who interfere with the master in the exercise of this right — first, by obstructing or hindering the claimant in his endeavors to seize and arrest the fugitive ; secondly, by rescuing the fugitive when arrested; and, thirdly, by harboring or concealing him after notice.

But the act of Illinois, having for its object the prevention of thé immigration of such persons, punishes the harboring or secreting n’ego slaves, whether domestic or foreign, and without regard to the master’s, desire either to reclaim or abandon them. The fine imposed is not given to the master, as the party injured, but to the State, as a penalty for disobedience to its laws,-. And if thé fine inflicted’ by the act .of Congress had been madé recoverable by indictment, the offence, as stated in any one -of the counts of the bill - before us, would not have supported such an indictment. Even the last count, which charges the plaintiff in error with “unlawfully preventing C. D., the lawful owner, from retaking the negro slave,” as it does not allege potice, does not describe an offence punishable by the act of Congress.

But admitting that the plaintiff in' error may be liable to aii action, under the act of Congress, for the same acts of harboring and preventing the owner from retaking his slave, it does., not follow that he would be twice punished for the same offence. An offence,-in its legal signification, means the'transgression -of . a law.- A man may be compelled to make reparation in damages to the. injured party, and. be liable also to punishment for a breach of the public peace, in consequence of the same act.; and may be said, in common parlance, to’be twice punished for the same oifence. Every citizen of the United States is also a-citizen of a State or territory. He may be said to owe allegiance to two sovereigns; and may be liable to punishment for, an infraction of the laws of either. The same act may be an' offence or transgression • of the laws of both. Thus, an assault upon the marshal of the .United' States, and. hindering him in the execution of legal process, is a high offence against the United States, for which the perpetrator is liablfe to punishment; and the same act maybe .also a gross breach of the neace of the State, a riot, assault, or a murder, and subject the same person to a punishment, under the State laws, for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly dverred that the offender has been twice punished fpr the same offence.; but only that by one act he has committed two offences, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other; consequently, this court has decided, in the case of Fox v. The State of Ohio, (5 How. 432,) that a State may punish the offence of uttering or passing false coin, as a cheat or fraud practised on its citizens; and, in the case of th'e United States v. Marigold, (9 How. 560,) that Congress, in the proper exercise of its authority, may punish’ the same act as an offence against the United States.

It has been urged, in the. argument on behalf of the plaintiff in error, that an affirmance of the judgment in this case will conflict with the decision of this.court in the case of Prigg v. The Commonwealth of Pennsylvania, 16 Pet. 540. This, we think, is a mistake.

The questions presented and decided in ’ that case differed entirely from those which affect the present. Prigg, with full power and authority from the owner, had arrested a fugitive slave in Pennsylvania, and taken, her to her master in Maryland. For this he was indicted' and convicted under a statute of Pennsylvania, making it a felony to take and carry away any negro or mulatto for the purpose of detaining them as slaves.

The following questions were presented by the case and decided by the court: —

,1. That, under and in virtue of the Constitution of the United States, the owner of a slave is clothed 'with entire authority, in every State in the Union, to seize and recapture his slave, wherever he can do it without illegal violence or a breach ,of the peace.

2. That the government is clothed with appropriate authority and functions to enforce the delivery, on claim of the owner, and has properly exercised it in the act' of Congress of 12th February, 1793,

3. That any State law or regulation which interrupts, impedes, limits, embarrasses, delays, or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service, is void.

We.have in this case assumed the correctness of these doctrines ; and it will be found that the grounds on which this cn.se is decided were fully recognized in that. “ We entertain,” say the court, (page 625,) “ no doubt whatsoever, that the States, in virtue of their general police power, possess.full jurisdiction, to arrest and restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with or regulated by such a course; and, in many cases, the operations of the police power, although designed esséntially for other purposes, — for the protection, safety, and peace of the State, — may essentially promote and aid the interests of the owners. But such regulations can never be permitted to interfere with or to obstruct the just rights of the owner to reclaim his slave, derived from the Constitution of the United States, or with the remedies prescribed by Congress to aid and enforce the same.”

Upon these grounds, we are of opinion that the act of Illinois, upon which this indictment is founded, is constitutional, and therefore affirm the judgment.

Mr. Justice McLEAN.

In the case of Prigg v. The Commonwealth of Pennsylvania, the police power of the States was not denied, but admitted.

This court held, in Fox v. The State of Ohio, (5 How. 410;) that a person might be punished under a law of the State for passing counterfeit coin, although the same offence was punishable under the act of Congress, and, consequently, that the coñviction and punishment under the State law; would be no bar to a prosecution under the law of. Congress. In that case I dissented, and gave at large the grounds of my dissent.

As the case now before us involves the same principle as was ruled in that case, I again! dissent for the reasons then given, and I deem it unnecessary now'to repeat them.

It is contrary to the .nature and genius of our government, to punish an individual twice for the same offence.- Where the jurisdiction is clearly vested in the Fedéral Government,-and an .adequate punishment has béen provided by it for . an offence, no- State, it. appears to me, can punish the same act. The assertion of, such a .power involves the right of' a State to' punish all offences punishable under the acts of Congress. This would practically disregard, if it did not destroy, .this important branch of criminal justice, clearly vested in the Federal Government. The exercise of such' a power by the States would,in effect, be a-violation of'the Constitution of the United States, and the Cbnstitiition of the respective States. ■ They all provide against a. second punishment for the same act. It is no ’satisfactory’answer -to this, to say that the States' and Federal Government constitute different sovereignties, arid, consequently, may; each punish offenders under its own laws.

It is true, the criminal laws of the Federal and State Governments emanate from different sovereignties; but they Operate •upon th'e same people, and should have the same end in view. In this respect, the Federal Government, though sovereign within the limitation of- its powers, may, in some sense, be considered as -the agent of the States, to provide for the general welfare, by punishing offences under its own laws within its jurisdiction. It. is believed that no government, regulated by-laws, punishes twice criminally the same act. And I deeply regret that our government shouldfbe an exception to a great principle of action; sanctioned by humanity and justice.

It .seems to. me it would be as unsatisfactory to an individual as it would be illegal, to say to him that he must submit tp a second punishment for the same act; because it is punishable as well-under the State laws, as' under the laws of the Federal Government. It is true he lives under the agís of both laws; ■ and .though he might yield to the power, he would riot be satisfied with the logic or justice of thé argument;

Order-

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of ■ Illinois, and was argued by counsel. On consideration whereof,'it is now here ordered and adjudged by-this court, that the. judgment of the said Supreme Court in this cause be, and the same is hereby, affirmed, with costs.


source: Caselaw Access Project

author: Mr. Chief Justice. TANEY

license: Public Domain

text:
    Cornelius Kanouse, Plaintiff in Error, v. John M. Martin.
    Where a motion was made, under the 12th section of the Judiciary Act, to remove a cause from a State Court to the Circuit Court of the United States, notwithstanding which the State Court retained cognizance of the case, and it .was ultimately brought to .this court under the 25th section of the Judiciary Aet, a motion to dismiss it for want of jurisdiction cannot be sustained. The question will' remain -to he decided upon the full hearing- of the case.
    A motion was.made by Mr. Martin, to dismiss this case,-which was argued by himselr and Mr. Garr.

    The circumstances, upon which the motion was based, are stated in the opinion of the court.
   Mr. Chief Justice. TANEY

delivered the opinion of the court. This is a writ of error, directed to the Superior Court of the City of New York, and a motion has been made by the defendant in error to dismiss it for want of jurisdiction.

The record shows that a suit was brought by the defendant.in error against the plaintiff, in the State Court above mentioned; the former being a citizen of New York, and the latter a citizen of New Jersey. The plaintiff in error, at'the time of entering his appearance in the State Court, filed-his petition, stating the citizenship of the parties, and praying for- the ^removal of the cause for trial into the next Circuit Court, to be held in the district where the said suit was pending;,and, at the same time, offered good and sufficient security for his entering in such court, on the. first day of the session, copies of the process against him, and also for his then appearing and entering special bail in +he cause.

The State- Court, however, refused to permit the cause to. be removed ; and after the petition was filed and the bond given, proceeded in the case, and finally gave judgment against .the plaintiff in error for the sum of money mentioned in- the record. Various proceedings, it appears, were afterwards had in the appellate courts, of the State, in relation to this judgment,.but. the decision in these courts was also against the plaintiff ip. error; and the judgment rendered in the Superior Court of .the-City of New York, still remains there and is in full force, if ,thaf court bad jurisdiction of the case after the application to remove it.

The case then, as it stands on the motion, is this : The plaintiff in'error claimed the right to remove this cause from the State Court to the Circuit Court of the United States, under the 12th section of the Judiciary Act of 1789. The right claimed was denied by the. S.tate Coma, which retained the. case, and proceeded to give a final judgment against him.

It is therefore precisely one of the cases enumerated in the 25th section of the act of 1789, in which jurisdiction is conferred upon this court, and in which the judgment of the State Court may be reviewed upon writ of error. For the construction of an act of Congress was drawn in question, and the decision of the court was against the right claimed under it, by the-plaintiff in error.

As to the authority of the Superior Court of the City of New York to retain the case, and the validity or invalidity of its proceedings and judgment, after the motion to remove; that question, according to the practice of the court, will stand for hearing when the case ■ is reached in the regular call of. the docket.. But the. motion to dismiss, for want of jurisdiction in •this court, is overruled.

Order..

On consideration of the motion, made' on a prior day of the present term of this court, to dismiss this writ of error, and of the argument of counsel thereupon had, as well in support of .as against 'the motion, it is now here ordered by the court that the. said motion be, and the same is hereby, overruled.


author: Mr: ¡Chief Justice TANEY

text:
    Ex parte William Many.
    Where there was a blank in the record of the Circuit Court in the taxation of the costs recovered by the plaintiff, and the judgment being affirmed by this Court, a • mandate with the same blank went down to the Circuit Court; and a motion was there made to open the original judgment for the purpose of taxing, the costs, ■ which motion was refused by the court, such refusal cannot be reached by a mandamus from this court.
    The refusal, of the Court was not a ministerial act, but an exercise of judicial discretion. This court could issue a. mandamus /for the Circuit Court td proceed to • judgment, but such a writ would not be appropriate to the present Case. .
   Mr: ¡Chief Justice TANEY

■ A motion has been made for a rule ,pn the District Judge of the Massachusetts District, to show cause why he should not proceed to adjudicate and- allow the petitioner’s costs in an action at law in the' Circuit Court. The rule is moved for upon the District Judge, because he alone was holding the Circuit Court yrhen the decision Was made which has given rise to this application. .

The case is this.: .Many recovered a judgment in the Circuit Court for the District of Massachusetts against Sizer and others, for .the infringement of a patent right; : The judgment was entered in the following words : —

“ It is thereupon considered by the court, that the. said William Y. Many recover against the said George W. and Henry Sizer the sum of seventeen hundred and thirty-three dollars and seventy-five cents damages and costs of suit taxed -at ”

The judgment was rendered in 1848 ; and upon writ of error brought by the defendants, it was affirmed in this court at December term, 1851. The costs were not taxed in the Circuit •Court .before the removal, and the blank left for them remained unfilled when the judgment was affirmed. The usual mandate issued to'the Circuit Court to carry the judgment into execution, and the blank- space for costs was necessarily, left in the mandate, in order to conform.to, the judgment of the court below, as it appeared in the transcript'transmitted to this cburt.

Upon the return of the case to the Circuit Court, the counsel for the plaintiff moved that his costs be taxed by the clerk as and for the October term, 1848, and that an order be made amending the record- iff the judgment of the Circuit Court so as to insert therein the amoun* of the taxation, and that an execution on the judgment so amended be issued.

The 'court refused to allow the amendment to be made, and overruled the motion. And we think its judgment; whether' it be correct or not, cannot be revised in the form of proceeding moved for on behalf of the plaintiff. The decision of the Cir- • cuit Court was not a mere ministerial act. It was the decision of a court of competent' jurisdiction made in the exercise of judicial authority and discretion. This court mi^ht unquestionably issue a mandamus to the court below to proceed to judgment. But in this case the court has proceeded to judgment, upon the question submitted for its decision; And whether that judgment be erroneous or not, this court has not jurisdiction to reexamine it in a proceeding by mandamus.

The motion for a rule to show cause must therefore be overruled for want of jurisdiction.


text:
    John A. Brown, Administrator of John Aspden, deceased, et al., Appellants, v. Mathias Aspden’s Administrators, et al.
    A reargument of a ease decided by tbis court will not be granted,.unless a member of the court, who concurred in the judgment, desires it; and when that is the case, it will be ordered without waiting for the application of counsel.

      And this is so, -whether the decree of the court below was affirmed by an equally divided court or a majority; or whether the case is one at common law or chancery.
    The rules of the English Court of Chancery have not been adopted by this court. Those which are applicable to a court of original jurisdiction, are not appropriate to an appellate court. •
    This was an appeal from the Circuit Court of. the United States for the Eastern District of Pennsylvania, and was the conclusion of the case of Aspden et al. v. Nixon et al., reported in 4 Hów. 467.
    It-was affirmed by a divided court in December, 1852; and in February, 1853, a petition for a rehearing was filed by the appellants;
   Upon, which petition Mr. Chief Justice TANEY delivered the opinion of the court.

A motion has been made for a rehearing in this case, and we have been referred to the practice of the English Chancery Court' in support of the application. Thé-argument presupposes that this court, in cases in equity, has adopted the rules and practice of the English chancery. But this is a mistake. The English chancery is a court of original' jurisdiction; and this court is sitting as an appellate tribunal. It would be impossible, from the nature and office of the two tribunals, to adopt the ■ same ■rules of practice in both.

Nothing could show this more strongly than the present application.- By the established rules of chancery practice, a rehearing, in- the sense in which .that term is used in proceedings in equity, cánnot be allowed after the decree is enrolled, If the party desires it, it must be applied for before the enrolment. But no appeal .will lie to the proper appellate tribunal, until after it is enrolled, either actually or by construction of law. And, consequently,' the time for a rehearing must have gone by before an appeal could be taken. In the House of Lords, in England, to which the appeal, lies from the Court of Chancery, a rehearing is altogether, unknowns, A reargument, indeed, maybe ordered, if the house desires it, for its own satisfaction. But the.chancery rules in relation -to rehearings, in the technical sense of the word, are altogether inapplicable to the proceedings on the appeal.

Undoubtedly this cburt may and would call for a reargument, where doubts are entertained which it is supposed may be removed by further discussion at' the bar. And this may be done after judgment is entered, provided the order for reargument is entered at the same term. But the rule of ,the court is this, — that no reargument. will be heard in any case after judgment is entered, unless some member of the court who concurred in the judgment afterwards doubts the correctness of his opinion, and desires a further árgument on the subject. And when.that happens, the court will, of' its own accord, apprise the counsel of its wishes, and designate the points' on which it desires to hear them.

There is. certainly nothing in the history of the English Court of Chancery to induce this court to adopt rules in relation to re* arguments,.analogous to the chancery practice upon applications for a-rehearing. According to the general practice of that court, one rehearing, where the application has been sanctioned by the signature of two counsel, is a matter of course. And this facility in obtaining one rehearing, has naturally led to others, and in cases oí interest or difficulty, two, or even three, rehearings have sometimes been allowed, under the special leave of the court, before the decree was enrolled, and, consequently, before it could be removed to the House of Lords. The natural result of .this practice is to produce some degree of carelessness in the first argument, and hesitation and indecision in the court. But the great evil is in the enormous expenses occasioned by these repeated hearings, and the delays which it produces in the decision, which often prove ruinous to both parties before the final decree is pronounced. Nor is the mischief confined to the particular suit in- which such proceedings and delays are permitted to take place.. ■ A multitude .of others are always behind it, waiting anxiously to be heard. And the result of the practice of which we are speaking has been such that, although the court has always been filled by men of the highest order, distinguished for their learning and industry, yet the expenses and delays of the court have become a byword and reproach to the administration of justice, and Parliament has at length been compelled to interpose.

And if this court should, adopt a practice analogous to that of the English chancery, we should soon find ourselves in the same predicament; and.we should be hearing over again at a second term almost' all the cases which we had heard and adjudged at a former one, and upon which our own Opinions would have been definitively made up upon the first argument.' We deern it safer to adhere to the'rule we have heretofore acted on. And nó reargument will be granted in' any case, unless a member of the court who concurred in the judgment desires it; and when that is the case, ’it will be ordered without waiting for the' application of counsel.

It is true that the decree of affirmance in this court, in . the Case before us, was upon an equal division of the members composing the court at the" time of the argument, eight being present. But ’the case was fully heard, more than a week being occupied in the arguments of counsel. And when, upon conference and a full interchange of opinion, it was found that the court was divided, the case was held over until the present term, in order that each member of the body might have an ample opportunity of investigating the subject for himself. This has been done. And when the court reassembled, it was found that the opinions of each member of the tribunal was unchanged, and the decree was therefore affirmed by a divided court. Further arguments would be mere waste of time, when opinions have been formed • after so much argument and such deliberate examination.

Nor .is the circumstance, that a decree is affirmed by a divided court, any reason for ordering a reargument before a full bench in any case. In a'body as numerous as this, it must often happen, from various causes, that the bench is not full. -And experience has shown, that it has rarely happened that every judge has been present every day throughout any one entire term. Thé case before- us is certainly an important one, in its principles and in the amount in dispute. But there are many cases on the docket at every term of the court much more important in both respects. And if it is to be understood, that cases of this description are not to be finally decided without the concurrence of a majority of the whole bench, it would be an useless consumption of time to hear them in the absence of any one judge, because it would bo uncertain whether a judgment could . follow after the argument. And it is easy to foresee the inco'n- ■ venience, delay, and expenses to which a practice of that kind would subject the parties, and the uncertainty and confusion it would produce (to the great injury of other suitors) in the order of -business as it stands on the docket, of the court.

Neither is there any difference between a -decreee in chancery and a. judgment at law, as to. its affirmance on a division of the court. In both cases, the motion is to reverse ; and if that fails, the judgment or decree necessarily stands, and must therefore be affirmed. And in most of the cases affirmed in this mariner, a majority, in fact, of the judges, who act judicially upon the case, concur in the judgment. For the Circuit Court is composed of two members, and' if both are on the bench, they must concur in the judgment or decree; otherwise it could not be passed, and the point would be certified by a divided' court.

In every view of the subject, we, see no sufficient. grouhd for ordering a reargument, and the application is therefore refused.


author: Mr? Justice CURTIS

text:
    John Hagan, surviving Partner of the late firm of John Hagan & Co., Appellant, v. Leroy P. Walker, Administrator of William H. Pope, deceased, and Frances Ann Pope, Widow and Guardian ad litem of William Pope and Julia Ann Pope, minor children of said William H. Pope, deceased, and Samuel Breck, Administrator of Leroy Pope, deceased.
    A court of equity has jurisdiction of a bill against the administrator of a deceased . debtor and a person to whom real and personal property was conveyed by the de ceased debtor, for the purpose of defrauding creditors.
    In such a ease, the court does not exercise an auxiliary jurisdiction io aid legal pro-, cess, and consequently it is not necessary that the creditor should be in a condition to levy an execution, if the fraudulent obstacle should be removed.
    It is proper to make a prior encumbrancer, who holds the legal title, á party to the bill, in order that the whole title may bo sold under the decree; for the purpose of such a decree, the prior encumbrancer is a necessary party; but the court may order a sale subject to the encumbrance, without having the prior encumbrancer before it, and in tit cases it will do so.
    If the prior encumbrancer is out of the jurisdiction, or cannot be joined without defeating it, it is a fit cause to dispense with his presence, and order a sale subject to his encumbrance, which will not be affected by the decree.
    ■ This was an ^appeal from the District Court of- the United States for the Northern District of Alabama.
    The bill was originally filed-in the names of John Hagan, of New Orleans, and. a citizen of the State of Louisiana, and Thomas Barrett, of' New Orleans, and a citizen of the State of Louisiana, 'formerly commission merchants and partnfers, trading under the firm, name, and style of John Hagan & Co., complainants, against William H. Pope,-of Huntsville; and a citizen of the State of Alabama, Samuel Breck, of Huntsville, and a citizen of the State of Alabama, the said Breck being the administrator of the. estate of Leroy Pope, who in - his' lifetime resided in Huntsville, and was a' citizen of the State of-Alabama, and Charles B. Penrose, of Washington city, and a citizen' of the District of Columbia, and successor in office of Virgil Maxcy, who in his lifetime resided in Washington city, and was a citizen of the District of Colombia, and Solicitor of the Treasury, of the United States.
    The suit-was commenced in February, 1846. The plaintiffs were judgment creditors of Leroy Pope, by a judgment rendered in April,1834, upon which an execution in October,/1834,_ was returned, “ No property found.”
    ■The plaintiffs sought to obtain satisfaction of this judgment, from property- which they allege the said Leroy Pope conveyed fraudulently to his son William H. Pope, the defendant.
    ..This property was conveyed, March,'1834, by Leroy Pope to William H. Pope, and upon considerations which the plaintiffs alleged to be colorable and inadequate.
    The property thus conveyed, was charged to have been the whole estate of the said ■ Leroy, and William H. Pope was charged to have been, before that time, without, property, and to have had.no means of payment for this.
    The plaintiffs alleged that the property was never delivered to the “ exclusive possession of William H. Pope, but u remained as much in the possession of the said Leroy as the said William, and that the said Leroy and William enjoyed the proceeds and profits jointly.”
    ■They alleged that William H. Pope, in March, 1834, conveyed the land and slaves to the Solicitor of the Treasury in mortgage, to secure a debt due to the United States by the said Leroy Pope, of $29,290.90, which William H. Pope at that date assumed, and for which he gave his notes; and that at the same date he guaranteed to the' United States a debt of $20,000, for which other security had been given to the United States by Leroy Pope.
    They averred that the $20,000 thus mentioned, was paid from the securities deposited by Leroy Pope, and that the only debt really incurred by William H. Pope, was that for $29,-290.90. This debt the plaintiffs admitted to be a charge on the property, and they did not contest it. They charged, however, that the securities to the Solicitor of the Treasury were designed by the grantor (William H. Pope) as a fraud upon the creditors of Leroy Pope.
    The.death of Leroy Pope was alleged to have occurred in 1844, and the appointment of Breck, as administrator, in 1844.
    The prayer of the bill.was, that the conveyances of Leroy and William H. Pope should be declared null. That, after satisfying the debt of the United States, the remainder- of the property should be appropriated to satisfy the debt of the plaintiffs. Process was prayed against William H. Pope and Samuel Breck, administrators of Leroy Pope, and the Solicitor, of the Treasury, (Penrose,) a citizen of the District of Columbia.
    The defendants, Breck and Pope, demurred to the bill; -the demurrer was allowed by the District Court, and the bill was dismissed.
    An appeal from this decree of dismissal brought the case up to. this court.
    It was argued by Mr. Johnson for the appellant, and Mr. J. A. Campbell for the appellees.
    As the demurrer was sustained in the court below, the points before this court to be argued were, the reasons for dismissing-the bill and sustaining the demurrer. These were stated by Mr: Campbell, as follows, arid it :is sufficient to state the points and authorities.

      I. That the jurisdiction of the Court of Chancery to set aside conveyances executed by a failing debtor to defraud creditors, is not an original and independent jurisdiction of that court, but is an auxiliary and .limited.jurisdiction. The creditor must show that the remédies at law have been exhausted — that there is an obstruction which can only.be removed by.the aid of the Court of Chancery, ánd that his cause is so situated at law, that, upon the interposition of the court in the manner sought, he could immediately enforce the right he claims. 3 Mylne & Craig, 407; 11 S. & M. 366; 8 Barb. N. Y. R. 593; 7 Ala. 319, 928; 1 Hill’s So. Car. R. 297, 307; 20 Johns. 554; 2 Rand. 384; 1 Paige, 388.
    II. The bill shows in this case three facts sufficient to -have determined the lien of the judgment against Leroy Pope, under the laws of the United States, end the State of Alabama.
    Five years had elapsed from the 3d of March, 1839, before the filing of the bill. The act of Congress of that date determined the lien. 5 Stat. at Large, 338.
    Ten years had elapsed from the judgment and return of -the last execution. Clay’s Digest, 206, 207, § 28, 29; 5 Ala. R. 188; 18 Ala. 675; 19 Ala. 207.
    The death of Leroy Pope put an end to the lien of the judgment and the right to issue execution. Bush v. Jones, 13 Ala. R. 167.
    III. The plaintiff sets forth the conveyance of ^eroy Pope to William- H. Pope, to have taken place in 1834. He does not aver that the conveyance was upon any trust for. Leroy Pope, .nor does he aver that any title remained in Leroy Pope. The bar of the statute of limitations of six years will apply to the personal property. 7 Yerger, 222; 1 Bailey, Ch. R. 228; 1 Humph. 335; 1 Hill, Ch. R. 113; 8 Yerger, 145; 7 Wheat. 60, 117, &c.; Peck’s Rep. 41.
    IV. The Court of Chancery, except in cases of express trusts' and fraud,. follow the courts' of law in the application of the statute of limitation.
    In this case no trusts in favor of Leroy Pope - are charged to exist; nor is there an averment that the plaintiff did not discover till within six years the fraudulent purpose and consider-, ation upon which they were made.
    In the absence of such averments, the court will presume the possession to have been consistent with the legal title, and the' bar of the statute will run. from the date of the title deeds. 4 How. S. C. R. 503, 560; 7 How. 234; 10 Wheat. 168.
    In reference to personal property, the limitation upon personal actions is adopted in equity. 1 Dev. & B. Eq. 95; 5 Ala. R. 90; 508; 3 Ala. R. 756.

      V. No averment is made by the plaintiff showing the condition of the estate of Leroy Pope, after bis death. The bill contains an averment,'that the crops from the lands and other profits of the estate have been large, and that'Leroy Pope enjoyed them till his death.
    There is nothing to show that ample means are not to be found in the hands of the administrator to pay the debt. No presentment to, nor demand of, the administrator is averred, and no refusal to pay on his part shown. A bill must show this, or it is fatally defective. 3 Ham. 287; 5 Har. & J. 381; 5 Gill & J. 432; 2 McCord’s Ch. R. 416, 169.
    VI. The court had no jurisdiction of the cause. The Solicitor of the Treasury, a citizen of the District of Columbia, is made a party. The prayer of the bill is to cancel deeds made to'him, and-to appropriate property in which he has a legal right. 3 Cranch, 267; 14 Pet. 60, 65.
   Mr? Justice CURTIS

delivered the opinion of the court.

John Hagan & Co. filed their bill in the District Court of the United States for the Northern District of Alabama, in which they state that, in the year 1834, they recovered a judgment at law in that court against Leroy Pope, for upwards of seven thousand dollars, which is wholly unsatisfied; that a writ of fieri facias, running against the lands, goods, and body of the debtor, was regularly issued, and, on the' 10th day of October, 1834, was returned nullá bona; and from that time to the filing of the bill, there has not been,' in that district or elsewhere, any. property of Leroy Pope out of which the judgment-debt could be. collected, except certain property afterwards mentioned. The bill further alleges that, about a month before the complainants recovered their judgment at law, Leroy Pope, intend? ing to defraud the complainants, and to .hinder them from obtaining payment, made conveyances, both of real and personal estáte, to a large amount, to his son, William PI. Pope, who was a party to the fraud, and is made a defendant in the bill; that Leroy Pope died in the year 1844, and Samuel Breck, who was appointed his administrator, is also a party defendant. The complainants are averred to be citizens of Louisiana, and William-H. Pope and the administrator citizens Of Alabama. The defendants having demurred to the bill, it was dismissed by the District Court, and the complainant, who is the surviving partner, appealed to this court.

•The principal ground upon which the demurrer has been rested.in this court is, that the bill does not show that the complainants are entitled to equitable relief. The- argument is, that the jurisdiction of a court of equity, to aid a judgment-creditor, by remqving a fraudulent encumbrance on the property of his debtor, is ancillary merely; that this aid is not given unless the creditor' has obtained a lien at law upon the specific property sought for, if that be legal property upon which. an execution could be levied; or if it be equitable assets, not liable to a levy by execution; that the creditor must have exhausted his legal remedy, by á return of nulla bona, on his execution, and must also be in a condition to proceed at once at law to enforce his right, if the obstacle should be remo.ved. ' That if his judgment has become ineffectual to entitle him to an execution, so that he could not levy, even if the assets were legal, and not subject to any fraudulent encumbrance, equity will not exert itself to subject equitable property to the payment of his judgment. And it is further argued, that, according to the local law of Alabama, governing these proceedings at law, the judgment-creditors had lost their lien on the personal estate of the.debtor, because they had suffered more thari one- term to elapse without, issuing an alias execution; and upon the real- estate, because more than ten years elapsed after t£e return of their last execution, and before this bill was filed; and that the lien, both upon the- personal and real estate, was destroyed by the death of Leroy Pope, which suspended the. right to issue an execution. That, by reason of his death and the lapse'of more thari.ten years, the right to issue an execution being suspended, equity would not subject equitable assets to the payment of this judgment.

It does riot distinctly appear whether the property sought to be reached by this bill is. equitable or legal. There is reason to suppose, from some allegations in the bill, that' a part or the whole of the • property was conveyed by Leroy Pope, in 1831, to Louis McLane, as Secretary of the, Treasury, to secure a debt due to the United States by a deed of trust, and this conveyance is not impeached. If it embraced the whole or any part of the property now in question, only an equitable estate therein was left in Leroy Pope. ' The bill is not distinct in its allegations on this subject; but we do not deem it necessary that it should be; because we are of opinion that this case, is not to be treated as an application by a judgment-creditor for the exercise of the-ancillary jurisdiction of 'the court, to aid him in executing legal process, but comes under a head of original jurisdiction in equity. It is a bill bj a creditor of a deceased debtor, against the administrator and a party who is fraudulently holding all'the property of the deceased, which in equity should be applied to the payment of this debt., , and the bill prays that the debt may be paid out of this fund. That a single creditor may maintain a bjll against an administrator of a décéased debtor, for a discovery of assets and the payment of his debt, there can be no doubt. That, in some cases, he may join with the administrator a third person, who is in possession of property which is amenable to the payment of the debt, is also clear. The instances in which it'has been actually held that such third person might be joined, are chiefly cases of collusion between the administrator and the third person possessed of assets, insolvency of the administrator, and where the third-'person was the surviving' partner of the deceased. Utterson v. Mair, 2 Ves. Jr. 95; Alsager v. Rowley, 6 Ves. 748; Burroughs v. Elton, 11 Ves. 29; Gedge v. Traill, 1 Russ. & M. 281; Long v. Majestre, 1 Johns. Ch. Rep. 306. But it will be- found that the equitable right Of the creditor to join a third person, and have' a discovery and an appropriation of assets held by him,* has never been limited to these particular cases.

For, while it is generally agreed that some special case must be made, it is also declared in all the cases, that what is to constitute it has not been limited by any precise and rigid rule. In Holland v. Prior, (1 My. &. K. 240,) Lord Brougham applied the rule to the case of a representative of a deceased representative, without any suggestion of collusion between him and the present representative.' In Simpson v. Vaughn, (2 Atk. 33,) Lord Hardwicke said-.: “ It. has been said at the bar, that .you may make any person a defendant that you apprehend has pdssessed himself- of assets upon which you have a lien. But this certainly cannot be laid' down as a general rule;' for it -would- be of dangerous consequence to insist that you can make any-person a defendant who has assets, unless you can Show to the- court he denies that he has assets, or applies them improperly.” Considering, then, that some special and sufficient reasons must be-shown'for proceeding against a third person, jointly with the administrator, the inquiry is, -whether this bill does not contain those reasons ; and. wc are of opinion it does.

It appears, from the statements in the bill, that William H. Pope is in possession, of all the assets of the deceased debtor, both real and personal, holding.-them under conveyances made to him by the. deceased, absolute, in form, but accompanied by secret trusts in favor of the- grantor, designed to defraud this particular -creditor, .and prevent him from obtaining payment of his" judgment, and that this fraudulent design has .thus far been successfully executed.

Now these conveyances are not only valid on their face, but they are really valid as bétween the parties;' and though they are void as against creditors., and the property., both at law and in equity, is subj.ect to the payment of the debts of the deceased, yet ihe embarrassments attending any attempt by the administrator to- possess'himself even of that part , of these assets,, v/hich were personalty, at law would certainly be great, and perhaps insuperable. 2 Rand. Rep. 384; Martin v. Root, 17 Mass. Rep. 228. It is true he is the representative of creditors, as well as of the next of kin, and in the former capacity miglit be able to make good his claim to a sufficient amount of these personal assets to enable him to pay the debts. Holland v. Cruft, 20 Pick. 321. But the impracticability of taking an account of the debts at law, and proportioning the recovery to the amount required.to pay them, would-tender a resort fi> equity indispensable to do entire justice between all parties, even if thé- assets were- legal in their nature. If this bill had contained an allegation that the administrator had been requested to sue, and had refused, the ease would be free from all doubt; and, upon the facts averred' in the bill, we do not think such a request necessary; because it- does appear that about two years elapsed after the death of Leroy Pope before this bill was filed, and the administrator took no step to reduce these' assets to possession; because, when this bill was-filed, he resists it by á demurrer, relying on the statute of limitations ; because it must be admitted to have been doubtful' how- far he had a remedy, without the concurrence of - any creditor; and chiefly, because there is no danger of interfering with the due course of administrations,’ or taking from administrators their proper.control- over suits for the recovery of'assets, by holding that'a creditor may file a bill against the administrator and-the fraudulent grantee of deceased debtor, to subject the property fraudulently conveyed to the payment of the debt. , It comes within the case put by Lord Hardwicke; for here this specific property is amenable to the claim of this creditor, and in the sense in which he employs the word, the creditor had a lien upon these assets; and it does appear to the court, that the party holding them both denies that they are assets and applies them improperly, for he claims them as his own, and is endea- . voring to defeat a just creditor by an assertion of a title invalid as against him.

In this view, of the case, it is not essential that the creditor cannot.proceed at law until after a revival of the judgment by a .scire facias. In Burroughs v. Elton, (11 Ves. 36 - 7,) Lord Eldon had occasion to consider the force of this objection in a similar case. -It was a bill to, reach real assets-in.the hands of a surviving partner. The complainant’s'judgment was upwards of seventeen years old, and no step had been taken to revive it against the administrator or' the heir. His decision, in accordance with two previous cases to which he refers, was, that such, a creditor could’ sustain the bill, though it might be necessaiy to direct him to proceed at law to revive' his judgment.

It has been argued, that the bill does not show that' there are not other assets in the hands of the. administrator sufficient tp pay this -debt, and contains no allegation that the administrator was ever requested to pay it. But the bill does expressly aver, that, aside from the property fraudulently conveyed, there is not, any where, any property of Leroy Pope, out of which the debt could be collected; and, although it states that the fraudulent grantor and grantee both remained in possession, and took the crops jointly, and-that these crops were of great value, yet, inasmuch as between themselves the'crops belonged to the grantee, and as it was the object of the conveyances to prevent therii from being applied to the benefit of creditors, we are of opinion, there is no presumption that any thing arising from this joint possession ever came to the hands of the administrator, and, therefore, that a demand on him would have been a vain act, which the creditor Avas not compelled to do.

One other ground on which the demurrer has been rested, requires noticé. The bill alleges that, after the fraudulent conveyances to William H. Pope had been made, he mortgaged the property to Virgil Maxcy, as Solicitor of the Treasury of the United States, to secure the debt of Leroy Pope which William H. Pope assumed to pay, and it avers that this debt has been in part paid by means described in the bill. Virgil Maxcy and, subsequently when he went out of office, his successor, Charles B. Penrose, were named as parties to the bill,' but they were out of the jurisdiction, no process was served on either of them, and neither ever appeared or answered. The bill prays that William H. Pope may.be compelled to pay to the United States the balance due to them, out of the property in question, and that the residue may be subjected to the payment of the complainant’s debt, and for other and further relief.

Under the act of Congress of the 28th of February, 1839, (5 Stat. at Large, 321, § 1,) it does not defeat the jurisdiction of court that a person named as defendant is not an inhabitant of or found within the district where the suit is brought; the court may still adjudicate between the parties who are properly before it, and the absent parties are not to be concluded or affected by the decree.

It is obvious, however, that there may be cases in which the court cannot adjudicate between the parties who are regularl) before it, for the reason that it cannot bind those who are absent. Where no relief • can be given without taking an account between an absent party and one before the 'court, though the defect of parties may not defeat the jurisdiction, strictly .speaking) yet the court will make no decree in favor of the complainant.

The case before us is not one of this character; for although the whole of the relief specially prayed for cannot • be granted in the particular mode there indicated, because' the United States not being a party, no account can be taken of the debt due to them from Leroy Pope or William H. Popé, yet, subject to .the encumbrance of this debt, and without affecting it in any manner, the property may be appropriated to the payment of the complainant’s debt.

It is true, that in Finley v. The Bank of the United States, (11 Wheat. R. 306,) which was a bill to foreclose a mortgage by sale, 'Chief Justice Marshall says: “ It cannot be doubted that the prior mortgagee ought regularly to-have been a party defendant, and that had the existence of his mortgage' been known to the court, no decree ought to have been pronounced in the cause until he was introduced into it.” But it could not have been intended by this to say, that a prior encumbrancer was absolutely a necessary party without whose presence no decree of sale could be made, because in that very case the court refused to .treat the decree as erroneous, after it had been executed.

Tn Delabere v. Norwood, (3 Swanst. R. 144, n.) in a bill to obtain payment of an annuity charged on land, prior annuitants were held not to be necessary parties. In Rose v. Page, (2 Sim. 471,) the same rule was .applied to a prior mortgagee ; and in Wakeman v. Grover, (4 Paige, R. 23,) and Rundell v. Marquis of Donegal, (1 Hogan, 308,) and Post v. Mackall, (3 Bland, 495,) to prior judgment creditors; and in Parker v. Fuller, (1 Russ. & My. 656,) persons having encumbrances on real property, which the bill sought to subject to the payment of debts of the deceased owner, were held not to- be necessary parties to the bill. See also Hoxie v. Carr, 1 Sum. R. 173: Calvert on Parties, 128.

On the other hand there are ■ cases in which it has been declared that all encumbrancers are necessary parties. Many are collected in Story’s Ed., Pl. 178, n. But we consider the true rule to be, that, where it is the object of the bill to procure a. sale of the land, and the prior encumbrancer holds the legal title, and his debt is payable, it is proper to make him a party in order- that a sale may be made of the whole title. In this sense, and for this purpose, he may be correctly said to- be a necessary party, that is, necessary to such a décree. But it is in the power of the court order a sale subject to the prior encumbrance, a power which it will exercise in fit cases. And when ttie prior encumbrancer is not subject to the jurisdiction of tne court, oi cannot be joined without defeating its jurisdiction, and the validity of'the encumbrance is admitted, it is fit to dispense with his being máde a party. To such a case the 47th rule for the equity practice of the Circuit Courts of the United States is applicable, and by force of it, this cause • may proceed without making the United States, or the Solicitor of the Treasury a party to the decree.

The decree of the District Court must be reversed, and the' case rerrianded, with directions to overrule the demurrer and order the defendants, other than the representative of the United States, to answer the bill.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Alabama, and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and decreed, that the decree of the said District Court in this cause be, and the same is hereby, reversed costs, and that this cause be, and the same is hereby, remapped to the said District Court, with directions to oyerrule the demurrer, an<j to order the defendants, other than the representative of the United.States, to answer the bill.