source: Caselaw Access Project

author: Mr. Justice WAYNE

license: Public Domain

text:
    Washington Bridge Company, Appellant, v. William Stewart, James Stewart, and John Glenn.
    After a case has been decided iipon its merits, and remanded to the court below, „ if it is again brought up on a second appeal, it is then too late to allege that the court had not jurisdiction to try the first appeal.
    The Supreme Court has no power to review its decisions, whether in a case at law or in equity. A final decree in chancery is as conclusive as a judgment at Jaw. ' ■
    An affirmance by a divided court, either upon a writ of error or appeal, is conclusive upon the rights of the parties.
    . This was an appeal from the Circuit Court of the United States, for the District of Columbia, held in and for the county of Washington, sitting as a court of equity.
    The same case was before the court at January term, 1840, and the decree of the court below affirmed by the Supreme Court, but in consequence of the court being equally divided, ho opinion was given, and no report of the cáse published. It now came up on an allegation that it was improperly brought up before,, as the decree, from which thu appeal was taken, was said not to be a final decree. The case was this:.
    The Washington Bridge Company -were the owners of abridge across the Potomac river, under a charter granted in 1808. In February, 1831, a large part of the bridge was broken up and carried away by the ice and flood; and in April, the president and directors called for an instalment of ten- dóllars per share from the stockholders,'for the purpose of repairing it. The defendants in error did not pay, and their shares were forfeited on the 21st of June, 1832, under the 8th section of the charter.
    On the 14th of July, 1832, Congress passed an act to purchase the bridge, and appropriated 20,000 for that'purpose, which they directed to be divided amongst the stockholders in the manner therein pointed out.
    . In May, 1833, the defendants in error filed a bill in the Circuit Court, claiming to be stockholders; and, as such, to be entitled- to a distributive share of the purchase money. • The bridge company resisted the claim on the ground that their shares had been forfeited, and in November, 1838,'the cause came on for hearing on the bill, .answers, exhibits, depositions, and general replication, when the court made the following decree:
    “This cause having been set for hearing upon the bill, answer, general replication, exhibits, and evidence, and coming, on to be heard and argued by counsel, it is, on this, twenty-ninth day of November, in the year eighteen hundred and thirty-eight, after full consideration, ordered, decreed, and adjudged, that the rights and interests of the complainants, and the other stockholders in said bill of complaint mentioned;' and who have come in, -or may 'come in,' before the final determination of this cause, and procure themselves' to be made parties to these proceedings, have not been, and were ndt, forfeited under and by-virtue of the proceedings of said bridge, company, stated and set forth in the said answer, and exhibits, and • evidence, but that the same remain in full, force and virtue, and that the.said parties are. respectively entitled to their proportion of the sum of $20,000, mentioned and stated in said bill of complaint as' stockholders in said company; and that, in order to -fix and adjust' the said proportions or-shares of said parties, there be 'first deducted the sum of $10,561 55-, mentioned in said answer, being the sum advanced by certain stockholders, as therein mentioned, with interest thereon from the time the same was advanced to the time of the receipt of the said $20,000, being an average of nine months, for 'which said interest is to be calculated; also the sum of $568 25, being the amount of unclaimed dividends expended On the said bridge, with interest -thereon from the ’ time of said expenditure to ' the receipt of said $20,000, and that subject to Such deductions; and, after the same shall have been made, the said complainants are . respectively entitled to, and shall 'receive, their full ghare and proportion of the interest on the same, which shall have been earned and made of the said sums so due to them respectively pending this . suit, under the investment made thereof by complainants.
    “ And it is.ordered, that other items claimed to be deducted be rejected^ no evidence having been offered-to show their character or ■ their amount:
    “ And it is further ordered, that the case be referred- to the- auditor, to state an account in .conformity, with the .principles laid.down in. this decree.,v
    From thiS’decree the bridge -company prayed án appeál to the Supreme Court, where, as-has already been stated, it-was affirmed by á divided court..
    In April, 1840, the case was referred by the Circuit Court to the auditor, who made the' following .report in November,-1841: “
    “ The undersigned auditor* to whom was referred the papers in this cause on the 29th of April, 1840, has had the same tinder examination, and, after a full' consideration of the same, begs leave to make the following report: That the amount of funds in the hands of Frederick May, president and treasurer of the Washington Bridge Company, including interest on corporation stock received and to be received, on the 30th June, 1841,. is $22,221 52. That the amount refunded the stockholders of -fifteen hundred and nineteen shares, which they had adyanced towards repairing the bridge, with interest thereon according to the decreethe amount of unclaimed dividends which had b'een expended for said repair, and also directed to be refunded with interest for nine months; for debt due from the bridge company, including costs of suit; the trustee’s commission, auditor’s bill, &c.j and the payment to said fifteen hundred ' and nineteen shareholders of ten per cent.- upon the cost of their stock, as per statement herewith submitted, amount to $18,991 11, leaving a balance in the trustee’s hands of $3,222 41.
    “ That the holders of the four hundred and seventy-three shares, which were deemed' by the company to have been forfeited, (but which the court decided were not forfeited,) according to the cost of the same, amount to $20,749 17, ten per cent, on the same (being the dividend paid to the first-mentioned stockholders) amounts to $2,074 91, as per statement B herewith, leaving a balance, after paying'said amount, in the hands of the trustee of $1,147 60.
    “In ascertaining the cost of the shares to the present claimants, the auditor has-taken pains, as far as possible, to ascertain the same. .The principal claimants are John Glenn and the Messrs.-Stewarts. In the case of Mr. Glenn, he states on oath, that the stock belongs to the estate of Robert Barry, and is' held by him as trustee or administrator. Barry was an original subscriber. In thé case of the Stewarts, they claim as having obtained it from D. Stewart’s estate in the course of distribution, not as. purchaser. D. Stewart was án original subscriber. In all other cases, the scale furnished from the president of the company of the current price of the stock at the periods of transfer, have been the sole" guide by which to fix. the value. Several of-the stockholders on the list are known to be dead, and it is not known to the auditor who their representatives are; but in, making a distribution of this fund, their rights ought to be preserved, and their fair dividend paid when demanded.
    “ Doctor May, the'trustee, claims $1,000 for his commission on the money received from the Treasury, $20,000, for the sale of the bridge. The chaige has been objeeted to by some of the claimants, and the auditor has reduced it to $500; if he has erred in this, the court can correct it.
    “The amount of the-unclaimed dividends used for repairing the bridge, $568 25, and nine months interest thereon, $25 57, making $593 82, has been in part paid, but a very, considerable part, in all probability, never will be called for, as many of the persons who were entitled-to it are dead, and some insolvent; tbeir representatives knowing nothing' of the small amount so many years due. The complainants; however, in the present cause, have no claim on .the unclaimed money due to others.

      “ As regards the disposition to be- made of the balance which will remain in the hands of the trustee, ($1147 50,) after paying the stockholders ten per .cent., the auditor begs reference to his remarks on the general statement herewith.
    “ Submitted by
    “Joseph Fourest, Auditor.”
    Whereupon the court made the following decree in the premises :
    . - “ The report of the auditor in this case having been filed, together with the accompanying statements by him made, and constituting part of the same, and being fully considered by the court, it is, this fourth day of June, eighteen hundred and forty-two, ordered and decreed, that the same be, and it is in all respects confirmed. And the said cause coming on for final' hearing upon the bill, answer, replication, exhibits,- evidence, report of auditor, See., and being maturely considered, it is further ordered, adjudged, and decreed, that the complainants are entitled to the relief prayed, in conformity-with the report of said auditor as aforesaid, and that the relief be extended to the other stockholders in said company in the proportions and for the sums mentioned in the statement by the auditor of the stockholders in said company who have not participated in the_ dividends -of said bridge company. And it is further ordered and decreed, that ,the said defendants pay over to said parties respectively, or to their solicitors on record, the said sum so due to them respectively, in conformity with said report and statement and of this decree, together with the costs of this suit to be taxed by'the clerk, including the costs of the Supreme Court, on or before the- first day of July, 1842, and file with said clerk, on or before said first day of Jirty, 1842,- a. statement of said payments so made.
    “ By order of the court.”
    From this decree the bridge company appealed to the Supreme Court.

      Bradley, for the appellants.

      Coxe, for the appellees,

      Bradley referred to the record to show, that the decree first appealed from was an interlocutory, and not a final decree, and that the- Supreme Court had not jurisdiction in such a case. He then •proceeded thus:
    The appellants are not estopped from denying the jurisdiction of the Supreme Court to which- they appealed in that cause, as the want of jurisdiction is apparent in the record. . See Wilson v. Hob-day, 4 M. & S. 120.

      That was debt on a replevin-bond given by the defendant to ' the Mayor <?f Canterbury, and the breach assigned was, that the defendant did not appear and prosecute his replevin in the Mayor’s Court. Th.e defendant demurred, to the declaration, and, among other things, assigned as cáuse of demurrer, that it did not appear upon the declaration that the mayor had jurisdiction to grant reple-vins, and to take bond, &c..
    The court was of opinion that it did sufficiently appear, that the mayor prima fade had jurisdiction, and upon that ground only overruled the demurrer; whereas if they had been of opinion that the defendant was estopped to deny the jurisdiction, because he had resorted. to that court for relief, they would have decided the case . upon that ground rather than on the doubtful ground, that the mayor had jurisdiction, and which they took great pains to support.
    See also Ketland v. The Cassius, 2 Dallas, 368. “ The court is bound to take notice of a question of 'jurisdiction whenever if may occur, and however it may be proposed; for,if vVe are satisfied that we have not legal cognisance of any cause, or in terms less direct, if we are not satisfied that we have cognisance, we qught not to proceed to a decision or an investigation upon its merits.” Per Wilson, J.
    A plaintiff may assign for error the want of jurisdiction in that. court to which he had chosen to resort.. ' It is the duty of the court to see that they have jurisdiction, for the consent of parties cannot .give if; and if .they decide a case of which they have no jurisdiction,-it is the error of the court. The decision is void because coram nonjudice. Capron v. Van Noorden, 2 Cranch, 126.
    Crow v. Edwards, Hobart,- 5. “ Consent of parties cannot change the lawa fortiori, eaUnot give jurisdiction.
    “ The courts of the United-States are all of limited jurisdiction, and. their -proceedings are erroneous, if the jurisdiction be-not shoWn upon them;” but gu<ere, .whether judgments in such cases are absolute nullities, which may be totally disregarded ? For, it does not follow that the court had not jurisdiction, because all the circumstances necessary-to give" jurisdiction do not appear^». the pro-, ceedings. It is error,-however, not to state them; and the judgment may, therefore, bp-reversed. • But, if it does appear upon the -proceedings that the court had not jurisdiction, the judgment is an ' ■absolute- nullity, and.-may be totally' disregarded.'. See Kémpe’s Lessee v. Kennedy,- 5 Cranch, 185; The Life Insurance Company v. Adams, 9'Peters, 602, before cited; Decatur v. Paulding,-14Peters, appendix, 609, and Skillern’s Ex. ?>. May’s Éx., 6 Cranch, 268, in-which the Supreme Court decided, that ás the merits of the cause had been finally, decided in that court, and its mandate required only the execution , of its decree, the Circuit Court was bound to carry.that decree into execution, although the jurisdiction of that court was not alleged in the pleadings.

      Letters of administration, granted while there is a qualified executor capable of acting, are absolutely void. Griffith v. Frazier, 8 Cránch, 26.
    -In the case.-of Houston v. Moore, 3 Wheat. 433, the court said, that the jurisdiction of the Supreme Court under the 25th section of the Judiciary Act of 1789 extends only to a-final judgment or decree ; and that a judgment reversing 'that of an inferior court, and awarding a 'venire de novo, is not a" final judgment; and in Martin v. ■ Hunter, 1 Wheat. 355, that a decree affirming an interlocutory decree is not a final decree; and in Weston v. City of Charleston,
    2 Peters, 454, that a final judgment is that which determines the particular cause: if need not finally decide upon the rights litigated; and-in Rutherford v. Fisher, 4 Dallas, 22, that a decree, overruling ' in equity,a plea of limitations, and ordering the defendant to answer, is hot á final judgment; and Chase, J., said, that “ in England a writ of error may be brought upon an interlocutory decree or order"; but here the words of the act allow -it only in the case of a final judgment.” In Young v. -Grundy, 6 Cranch, .51, the Supreme Court said, no appeal or writ of error will lie to an interlocutory decree dissolving an injunction — the same in Gibbons & Ogden, 6 Wheat. 448; and in The Palmyra, 10 Wheat. 502, a decree' for restitution, with costs and damages, before the court had acted upon the report of the commissioner as to the damages, was held not to be a final decree.
    In Owen v. Hurd, 2 ,T. R. 643, .644, it appeared that. the court had no jurisdiction, because the arbitration had not- been made a Tule <?f court. The parties agreed, to waive the objection and .go into the merits, but Lord Kenyon, G. J., said, “ that could not. be done; for the court were bound to take notice that they had no jurisdiction; and'he'.remembered an instance, many years ago, when, there being no title: to the affidavits in the cause, the court said, they could not take .any notice of them, even.though the counsel on the other side, did not- wish -to take the'objection.” ' See Bingham v. Cabot et al., 3 Dallas, 32, note. In Ross v. Triplett, 3 Wheat.-600, the Supreme Court said, that its jurisdiction extends only to final judgments and decrees of the Circuit Court of the District of Columbia, not to cases where the opinion of the judges of that court were divided.
    In the case of The Abhy, T Mason, 363, 364, Mr. Justice Story said, “It cannot be admitted, that any party can first affirm .the jurisdiction by taking the property on bail, and then turn round and deny the same jurisdiction, when-the court-can no longer administer effectual relief to the interests of other persons. The party is estop-ped by his own acts from such a proceeding. A plea to the merits is an admission that the jurisdiction of the court is well founded, and a decree upon those merits cannot afterwards be arrésted, unless the defect of jurisdiction be apparent on the face of thé record.” '

      But if the defect of jurisdiction be already apparent on the face of the record, and there is no necessity to introduce into the record any fact to show the -want of jurisdiction, the party is not- estopped from availing himself of such defect, and the court is as much bound to take notice of it as if it had been pleaded.
    So in Fisher v. Harnden,' 1 Paine, 58, Mr. Justice Livingston said, “ Where a court has jurisdiction, it has a right to decide- every question'that occurs in the'causeand, whether its decision be cor-, rect or othérwise, its judgment, until reversed, is considered as binding. But if it act without authority, its judgments are considered as' nullities, and form no bar to a recovery, which may be sought in opposition to them, even prior to a reversal.”
    .If, then, the judgment of .this court, thus technically affirming -the interlocutory decree of the Cjrcuit Court, is a mere nullity, as we think.it is, the cause riow comes before this court for the first-time upon its real merits, and the counsel for the original defendants, . now .appellants, respectfúlly. submit the following' argument.
    (The argument of Mr. Bradley upon the .merits of'the caséis -omitted, because the decision of the.court turned upon the preceding point.),

      Coxe, for appellees.
    This case, originated in a bill in equity filed by the appellees, on behalf of themselves and others in the Circuit Court for the county of-Washington, in May, 1833.
    After a tedious prosecution of the cause,, a decree was rendered in November term, 1838, by the Circ.uit Court. The chief, .judge, Cranch, being interested in the case, as one of the defendants, did not sit in the cause,- and, consequently, the-decree was made by the concurring opinions of the two other judges.
    The decree having been made; the defendants, hdw- the appellants, prayed an appeal to the Supreme ■ Court, and, in January term, 1840,- the decree of the Circuit Court was affirmed with costs. The mandate from the Supreme Court directed to the Circuit-Court, commanding that such execution and proceedings be had, in.-the said case, as, according to right and justice,,and the.law of the. United States ought to be had, was filed oh the 3d April, 1840.
    The case was referred to tíre auditor to státe an account in conformity with the principles laid down in the decree.' The auditor made his report in. November term, 1841. To this report no exception's were taken by either party, and it was accordingly, in conformity with the practice of the Circuit Court, confirmed 4th June, 1842. ' .
    From this decree the defendants again appeal,, and thus the-case is for the second time brought up for decision.
    It .will be observed by the court that the argument submitted- on behalf of thé. appellants, presents no objection to any proceeding or action of the Circuit Court subsequent to the former decree of .this court. It contains no objection to the report of the' auditor,’ no. allegation that it was not in precise accordance with the mandate of this court isstíed in January, 1840.
    The argument now addressed to. the court on the part of the appellants seeks to establish three positions:
    1. That the former decree, having been made by a divided court, is not to be regarded as an adjudication of the rights of the parties.
    2. That inasmuch as further proceedings were necessary to carry out that decree, the decree of the Circuit Court then, appealed from was not final, and consequently the Supreme Court had no jurisdiction of the case, and all'its proceedings, being coram nonjudice, are null and void.
    3. That the real merits of the case being open now for the first time, this court will re-examine those merits, and decree in opposition to its former judgment.
    These questions'have an importance far beyond the interests involved in this particular case.
    1.' The question is, not what is to be recognised here or elsewhere as the- authority of a decision of the Supreme Court when the judges -were equally divided, in case such decision should be cited as an authoritative adjudication of principles. It is, however, insisted that this case was decided — that it passed into rem judicatam. ■The law is perfectly well settled that when this court is equally divided in opinion upon a writ of error, the judgment of the inferior court is affirmed. Etting v. Bank of United States, 11 Wheat. 59. The judgment has the same force and'effect- in every particular as if it had passed by the unanimous opinion of the court.
    2. The decree of the Circuit Court upon which the decree of affirmance'passed, not being a final judgment, this court had no jurisdiction.
    This ground of objection is not entitled to much favour from this court. The now appellant was'then the. appellant. He invoked the jurisdiction of this court, and, having been unsuccessful in his application, now denies the validity of his own acts, disclaims a jurisdiction which he himself sought, and denies the authority of the court into which he'himself compelled his antagonist to meet him;
    But the answer to this objection is twofold;
    1.. The question is not now open whether or not this court had jurisdiction of the former case ; nor has this court now jurisdiction to examine its own judgment passed four years since, and to reverse it for any cause of error. Skillern’s Ex’ors v. May’s Ex’ors, 6 Cranch, 267.
    The question certified from the Circuit Court of Kentucky to the Superior Court' for its decision, was whether the cause could be dismissed from the Circuit Court for want of jurisdiction after the case had been removed by writ of error to the Supreme Court, and that court had acted upon it and remanded the cause to the Circuit Court for further proceedings; It was held that the objection came too late.
    It is manifest that if the Circuit Court had no jurisdiction of the case, that the only question over which this court could exercise authority was the single one of jurisdiction. When, therefore, it was held that it was too late to question the jurisdiction of the Circuit Court, a fortiori it was too late to question that of the Supreme Court.
    The. ground of objection now urged existed when the case was formerly before the Supreme Court. It might then have been urged. If not noticed by counsel, it was competent for the court ex mero motu to take cognisance of it,'and to dismiss it for that cause. In adjudicating upon the merits of the case, this court has, by necessary implication, asserted its jurisdiction. It is alleged that the judgment was not final. This point was fully argued in McDo-nough v. Millaudon, at the present term. The whole'law of the case- was settled; nothing remained but the ministerial duty of stating the account, which is in the nature rather of an execution to carry out the decree.
    If there be error in this, how can this error now he rectified ? It will hardly be contended that this can be assimilated to some which have been cited, and that the judgment rendered in 1840 was coram nonjudice, and consequently an absolute nullity. .
    In Kempe’s Lessee v. Kennedy, 5 Cranch, 185, this court held that .such was not the case in regard to the courts of the United States. If jurisdiction does not appear on the face of their proceedings, their judgments are erroneous an 1 reversible, but they cannot be considered as nullities which may be totally disregarded.- . In this aspect of the case, the present appeal, although nominally and in form an appeal from a decree of the Circuit Court rendered in June, 1842, is substantially an appeal from a decree of this court rendered in January, 1840.
    It is contended upon this point, -
    1. That there is no mode pointed out by law in which an erroneous judgment of this court can be reviewed and reversed either in this or any -other court.
    - 2. That upon this appeal nothing is before this court but the proceedings of the Circuit Court upon and subsequent to the man- , date.
    Both of these points have been conclusively settled by a series of adjudications:
    Himely v. Rose, 5 Cranch, 316. This cause .came up a second time by an appeal, and the chief justice declared that nothing was before the court except what was subsequent to the mandate. In 316, in delivering the opinion .of the court, he again says, “A decree having been formerly rendered in this cause, the court is now to determine whether the decree has' been executed according to its true intent and meaning.”
    Martin v. Hunter’s Lessee; 1 Wheat. 364. This case was brought before the Supreme Court .on a wait of error upon proceedings subsequent to the mandate formerly awarded, and the error assigned was in the judgment of the court of appeals of Virginia, .which had solemnly decided, that the Supreme Court did not possess the appellate jurisdiction which it h'ad exercised in rendering the former judgment. The points of difference which distinguish that case from the one at bar are, 1st, that in Martin v. Hunter, the court below had adjudged that this court had no jurisdiction, .and therefore its proceedings were coram non judice ; here the Circuit Court has without hesitation recognised the authority of this court, and as in duly .bound éxecuted its mandate. 2d. In Martin v. Hunter, the objection was made by a state court jealous of its rights and powers,, and by parties brought unwillingly 'before the .federal tribunal; here it -is the suggestion of (he very party who- voluntarily invoked the- appellate jurisdiction of this court. 3d. In that case the judgment of the inferior court embodied and asserted the defect' of jurisdiction, and it was that judgment which was to be reviewed; in this, case it is sought to give to this appeal the force and effect of an appeal directly from the decree of the Supreme Court itself.
    In p. 355, the court says,.“To this argument several answers may be given. In the first place; it is not admitted that upon this writ of error the former record' is before us.” “ In the next place, in ordinary cases a second writ of error has never been supposed to draw in question the propriety of the first judgment, and it is difficult tq perceive how such a proceeding could be sustained upon principle.-. A'final judgment of this court is supposed to be conclusive upon the rights which it decides, and no statute has provided any process by which this court can revise its qwn judgments. In several cases which have been formerly adjudged in this court, the same point was argued by counsel and expressly overruled. It was solemnly held that a final judgment of this court was conclusive upon the parties and could not be re-examined. Browder v. McArthur, 7 Wheat,'58.
    On an appeal, after a mandate, counsel applied for a rehearing of the original case. The court refused to allow it, being of opinion that it was too late to grant a rehearing after'the cause had been re-' mitted to' the court below, &c.; and that a subsequent appeal from the Circuit Court for supposed error in carrying into effect.such mandate, brought up only the. proceedings subsequent to the mandate, and did not" authorize an inquiry into the merits of the original decree. The Santa Maria, 10 Wheat. '442.
    Himely and Rose is affirmed, and it is 'said that the original proceedings are before the court on the second appeal only for the purpose of enabling it to see and adjudge any new points which were not terminated by the- original decree. Ex parte Sibbald, 12 Peters, 492.
    We think proper to state pur settled opinion .of the course which is prescribed by the law for this court to take, -after its final action upon a case brought within its appellate jurisdiction, as- well as that which the court whose final decree or judgment has been thus verified ought to take. Appellate power is exercised over the proceedings of inferior courts, not on those of the appellate court. The-Supreme Court have no power to review their decisions, whether in a case at law or equity. A final decree in chanceiy is as conclusive as a judgment at law.. Both are conclusive on the rights of the parties thereby adjudicated.
    ■ No principle is better settled, or of more universal application, than that no court can reverse or annul its own final decrees or judgments, -for errors of fact or law, after the term in- which they have been rendered, except for clerical mistakes, or to reinstate a cause dismissed by mistake; -from which it follows, that no change or mo-' dification can be made which can vary or affect it in any material thing.
    When the Supreme Court have executed their power in a cause before them, and their final decree or judgment requires some farther act to be done, it -cannot issue an execution, but. shall send a special mandate to the court below to award it. Whatever was before the court,, and is disposed of, is considered as finally settled, The inferior court is bound by the decree, as the law of the case, and must carry it into, execution according to the mandate. They cannot vary it, or examine-it for any other purpose than execution; or give any other or farther relief; or review it upon any matter decided on appeal, for error apparent; or intermeddle with it, farther than to settle so much as has been remanded. After a mandate,-no rehearing will be granted. It is never done in the House of Lords; and on .a subsequent appeal nothing is brought up but the proceedings subsequent to the mandate. After this distinct exposition of-the law by the Supreme Court, it would be a work of supererogation for me to vindicate’it fronrthe charge of usurping a jurisdiction not vested in it by law,-or to establish the correctness of a judgment which this high tribunal has rendered. Should this be deemed important, I proffer myself ready, to show that the former decree of the Circuit Court was á final decree, within the meaning of the judicial act and the practice of this court; and that the decree, as well as that affirming it, was right.
    No exception having been taken to the .report of the auditor, and no error being assigned in that or in the final decree, it is submitted, that the case is within the 17th rule of the court, and that the decree of the Circuit should be -affirmed, with ten per cent, damages.
   Mr. Justice WAYNE

delivered the opinion of the court.

This cause is now before us upon an appeal from a decree of the Circuit Court, made by it upon an auditor’s report, in conformity with the mandate issued by this court, when the cause was before.it upon a former occasion.

The appellants did not except to the auditor’s report, in the court below. When the cause was tried upon the first appeal, the decree of the Circuit Court was affirmed by a divided court.

We are now asked by the counsel, for the appellants to permit him to re-examine the decree of the ■ Circuit Court, upon its merits, affirmed as it was by the Supreme Court, upon the ground that the af-firmance was made when this court had not jurisdiction of the case; the first appeal having been taken upon what has since been discovered to have been an interlocutory and not a final decree.

The Supreme Court certainly has only appellate jurisdiction, where the judgment pr decree of the inferior court is final. But it does not follow, when it renders a decree, upon an interlocutory 'and not a final decree,'that it can,, or ought, on an appeal from a decree in the same' cause, which is final, examine into its jurisdiction upon the former occasion. The cause is not brought here in such a case for any such purpose. ' It was an exception, of which advantage might have been taken by motion on the first appeal. The appeal would then have been dismissed for the want of jurisdiction, and the cause would. have been sent back to the Circuit Court for farther proceedings. But the exception not having been then made of the alleged want of: jurisdiction, the cause was argued upon its merits, and the decree appealed from was affirmed by this court. Its having been affirmed by a divided court, can make no difference as to the conclusiveness of the affirmance upon the rights of the parties. It is settled, that when this court is equally divided upon á writ of error or appeal, the judgment of' the court below stands affirmed. Etting v. Bank of the United States, 11 Wheat. 59; the case of the Antelope, 10 Wheat. 66. Having passed upon the merits of the decree, this court has now nothing before it but the proceedings subsequent to its mandate. So. this court said, in Himely and Rose,, and in the case of the Santa Maria, 5 Cranch, 314; 10 Wheat. 431. Its decree became a matter of record in the highest court in which the cause could be finally tried. To permit afterwards, upon an appeal from proceedings upon its mandate, a suggestion of the want of jurisdiction in this court, upon the first appeal, as a sufficient cause for re-examining the judgment then given, would certainly be a novelty in the practice of. a court of equity. The want of jurisdiction is a matter of abatement, and that is not capable of b.eing shown for error to endorse a decree upon a bill of review. Shall the appellant be allowed to do more .now, than would be permitted on a bill of review, if this eourt had the power to grant him. such a remedy? If he was, we should then have a mode for the review of the decrees of this court, which have become matters of record, which could not ,be allowed as an assignment of error for a bill of review, in any of those courts of the United States in which that proceeding is the ordinary and appropriate remedy.

The application has been treated in this way, to show how much at variance it is with the established practice of courts of equity.

It might, however, have been dismissed, tipon the authority of a case in this court, directly in point, Skillern’s Executors v. May’s Executors, 6 Crunch, 267, and upon the footing that there is'no mode pointed out by law, in which an erroneous judgment by this court can be reviewed in this or any other court. In Skillern’s case, the- question certified by the court below to-this court, for its decision, was, whether the cause could be dismissed from the Circuit Court, for want of jurisdiction, after the cause had been removed to the Supreme Court, and this court had acted upon.and remanded the cause to the.Circuit Court, for further proceedings. This court said, “ It appearing that the merits of the cause had been finally decided in this court, and that its mandate required only the' execution of'its decree, it is the opinion of this court that the Circuit Court is bound to carry that decree into execution, although the jurisdiction of that court is not alleged in the pleadings.” The jurisdiction of this court, in that case, was as defective as it is said to have been in this. When that cause was before this court, though the judgment of the court below on it would have been reversed, upon motion, for the want of jurisdiction on the face of the record, the defect having escaped the notice óf the court .and of counsel, and the court having acted upon its merits, it determined -that its decree should be executed. The reason for its judgniént no doubt was, that the motion to.- dismiss the case, in the eourt below, for the want of jurisdiction, after it had been before the Supreme Court by writ of error, and had been acted upon, would-have been equivalent, had it been allowed, to a decision that the judgment' of this court might be reviewed, when the law points out no mode in which that can be done, either by this or any other court.- The want of power in this court, to review its judgments or decrees, has been so frequently determined by it, that it is not now an open question. Such is the result of what the. court said in Himely and Rose, 5 Cranch, 314. The court says, in Martin v. Hunter’s Lessee, 1 Wheat. 304, in reply to the allegation that its judgment had been rendered when, it had not jurisdiction, “To this• argument several answers may be given. In the first place, it is not admitted that upon this writ of error the former record is béfore us. In the next place, in ordinary cases, a second writ of error has never been supposed-to draw in question the propriety of the first judgment, and it is difficult to perceive how such a proceeding could be sustained on principle. A final judgment of this court' is supposed to be, conclusive upon the rights it decides, and no statute -has provided any process by. which this court can revérse its judgments. In several cases formerly adjudged in tbis court, the same point was argued, and expressly overruled. It was solemnly held, that a final judgment of this court was conclusive upon the parties, and could, not be re-examined.” ' In Browder v. McArthur, 7 Wheat. 58, counsel applied for a re-hearing; the court refused it, saying a subsequent appeal brought up only the proceedings subsequent to the.mandate, and did not authorize an inquiry into the merits of the original decree. - The same-is said with equal positiveness in the case of the Santa Maria, 10 Wheat. 442. To these cases we add an. extract from the opinion of the court, given by the late Mr. Justice Baldwin, in Ex parte Sibbald, 12 Peters, 492. That case called for the most careful consideration of the court. “ Before we proceed to consider the matter presented -by these petitions, we think it proper to state our settled opinion of the course which is prescribed by the law for this court to take, after its final action' upon a case, brought within its appellate jurisdiction, as well as that which the court, whose final decree or judgment has been thus ' verified, ought to take. Appellate power is exercised over the .proceedings of inferior courts, not on those of.the appellate court. The Supreme Court has no power to review, its decisions, whether . in a case at law or in equity. A final decree in chancery is as conclusive as a judgment at law. 1 Wheat. 355; 6 Wheat. 113, 116. Both are conclusive of the rights of the parties thereby adjudicated.”

These cases are decisive of the motion made in this case,, and as the decree now appealed from carries into execution the mandate issued by this court upon the' first -appeal, we direct- it to be affirmed.


author: Mr; Chief Justice TANEY Mr. Justice CATRON.

text:
    Richard Nugent, Assignee of Elizabeth Norton, in Bankruptcy, Plaintiff in error, v. George W. Boyd, Isaac T. Preston, and Abner Phelps, Defendants.
    The principles established in the case of Ex parte the City Bank of New Or-. leans in the matter of Christy, assignee of Walden, renewed ahd confirmed. But this court does not decide, whether or not the jurisdiction of the District Court over all the property of a bankrupt, mortgaged or otherwise, is exclusive, so as.to- take away from the state courts in such cases.
    This case came up by appeal from the Circuit Court of the United States for East Louisiana, sitting as a court of equity.
    The controversy was between the bankrupt’s assignee, on one side, and a mortgage creditor and purchasers at the sale under state process of the mortgaged premises, on the other. The-points to be decided grew out of the bankrupt law, and especially out of the saving in favour of state liens in the 2d section, and the jurisdiction granted to the District and Circuit Courts of the United States in cases of bankruptcy by the 6th and 8th. ■ The validity of certain rules established by the District Court Of Louisiana, sitting'in bankruptcy, was questioned, and the mortgage creditor, not having proved under the commission, claimed exemption from those rules, and asserted the right to pursue his prior lien in the state court..
    The complainant’s bill, stated in substance, that Elizabeth Norton filed her petition to be declared, a bankrupt, on the 9th May, 1842.' On the 1st June, it was decreed ^accordingly,- and Richard Nugent appointed aásignee. -
    At the time, and long before the date of the petition, George W. Boyd, one of the defendants, was the. holder of notes, secured by mortgage duly recorded according to the laws of Louisiana, for. the sum-of .$9000, on' which judgment had been rendered, order of seizure and sale granted, and execution issued and been levied, all before the date of the bankrupt’s petition. The levy took place on the 16th of February, 1842. The sale was the only proceeding after the date of the decree of bankruptcy; that decree being dated the 1st, and the sale taking place on the 4th of June, 1842.
    The bill admitted that all the forms and notices, &c., required by the laws of Louisiana for the sale of-mortgaged premises under execution, were observed; 'but set up the petition and decree of bankruptcy, made before the sale, and alleged, that before the property was sold the assignee gave written notice of the decree, and of his ' appointment as assignee under it,'to the sheriff, the mortgage creditor, Boyd, and to Preston and Phelps, who afterwards became the purchasers of the mortgaged premises at sheriff’s sale, cautioning them, respectively, and claiming at the same time the right to stay the sale, and take the property into his own hands for sale and distribution under the rules of the bankrupt court. . Copies of the proceedings in bankruptcy and of the rules of the bankrupt court were made exhibits to the bill. - These general orders of the District Court of the United States for the district of ■ Louisiana, sitting in bankruptcy, and purporting to be made in pursuance of the authority delegated to it by-the-Bankrupt Act, and especially the 6th section thereof, provided, in substance, that notice should be served on all creditors of the bankrupt who had any special mortgage, lien, or privilege,.- The assignee was authorized to take a rule on the mortgage creditor to show .cause why the mortgaged premises should not be sold by the assignee; and the court would thereupon pass an order of sale, which order should ip$o facto annul the mortgages, liens, &c., existing on the property sold, and upon its presentation to the recorder, of mortgages, he should be required to cancel the inscription’ of all such mortgages, liens, &c., on his records.; and. the liens, privileges, &c., should attach to the proceeds in the hands of tbe assignee; The mortgage creditor was entitled, under certain reservations, to prescribe the terms of salé, and at such sale might become -the purchaser, but was required -to pay the expenses and commissions- on the sale,.and the surplus, if any, over and above the amount of his mortgage.; but these privileges wer.e allowed only . on the condition of his filing the proof of his debt in the registry of . the.cgurt.
    The complainant alleged, that, by the act of Congress the rules aforesaid made in pursuance thereof, and the proceedings thereunder in the .case of the bankrupt, the sale should have beén stayed, and the said George W.. Boyd having been.notified and cited to appear and contest the proceedings in bankruptcy, all the acts done under • colour of the state process, after the date of the petition, were irre- ' guiar and void; that Preston and Phelps having alsp been notified and -cautioned,- they derived no title from the sheriff’s sale, such sale-being invalid.
    The bill prayed that the sheriff’s sale might be set aside, the title .. of-Preston .and Phelps declared null; that George W. Boyd be com- ■ pelled to come, into tt e District Court,, sitting in bankruptcy, and conform himself in all kings to the rules of said court in such cases, and for other and-general-relief. .
    To this bill there was a demurrer, which, admitting all the facts, insisted, in point of law, -
    ■ 1.- That the petition, decree, appointment of the assignee, &c., did not prevent the mortgage creditor from enforcing his lien under the process of the state court.
    2.-That the District Court had no right to pass the rules insisted on.
    3; That the mortgage creditor was not bound by law. to submit his claims to the District Court, sitting in bankruptcy, but -might elect not- to prove his debt, and still pursue his lien and remedy under the law.
    4..That the title obtained at the sheriff’s sale was, according to the facts set forth by the complainant, a good title for the purchasers against the assignee. .
    On the hearing of the argument on the -bill and demurrer, the Circuit Court .sustained the demurrer, and ordered the bill of the complainant to be dismissed.
    From this decree the complainant appealed.
    The .caiise was submitted, upon printed arguments, by Richard Nugent, for the appellant, and Wilde and Henderson, for the ap-pellees.
    The argument-for the appellant was as follows—
    It having-been agreed by all parties to submit this case in printed! briefs, so as to expedite its decision, and the final proceedings in the bankrupt court, the appellant respectfully- represents, that the facts-set forth by the bill being admitted by the demurrer, and substantially set forth in the statement of the appellees, it is unnecessary here to repeat them. The contest is one entirely of law; and as the best and most conclusive argument he can present, the appel-■lemt annexes hereto certain decisions heretofore made on the points in controversy in similar cases, by the Supreme Court of Louisiana, and the Circuit Court of the United States for the Louisiana district. These decisions were all rendered after elaborate argument, on due deliberation, and disclose so fully the reasons on which they are founded, that it cannot be requisite for the appellant to do more .than state the principles established by them. These courts have considered, that, to . prevent confusion, and secure uniformity of action and decision, it is indispensable that all the claims of all the creditors, without distinction, be brought before the bankrupt court, and that all the property to which the bankrupt may have any claim shall be administered, sold, and distributed, under the authority of that court, no matter what liens exist upon if. These liens themselves cannot, indeed, .be disputed or impaired, and against that the rules of the bankrupt court have made due provision; but they cannot be enforced under state laws and process, for that must inevitably disturb the uniform and harmonious administration of the bankrupt act.
    Hence it has been held, that, from the moment of- filing the petition, the bankrupt became incompetent to stand in judgment in the state courts, and that the assignee in bankruptcy has the right to cause,the state process to be stayed, to take the property into his own possession, and to sell it free from the mortgage, leaving to the mortgagee the right to claim the proceeds in the court of bankruptcy, under such rules as that court may prescribe-. Such has been the practice of the bankrupt court in Louisiana, and the rules annexed as an exhibit to the bill were adopted by the District Court of the United States, in analogy to, or conforming with them. The power to prescribe such rules is given by the 6th section of the Bankrupt Act, and they contain nothing -repugnant to the proviso in the 2d section, since the state liens are saved.
    There is also-a distinction to be noted between the legal effect of a mortgage in the state of Louisiana, and the common law mortgage. Under the latter, the legal title passes to the mortgagee. According to that system, therefore, the assignee does not acquire the legal title by the assignment, and mortgaged property consequently is not subject to administration and sale, as part of the bankrupt’s effects. The mortgage of Louisiana is thus defined: “ Mortgage is a right granted to .the creditor over the property of his debtor, for the se-ctirity of his debt, and gives him the power of having the property, seized and sold in default of payment.” Civil Code of Louisiana, art. 3245.
    Hence the legal estate in, and possession of, the mortgaged premises' in Louisiana, remains in the mortgagor,' and passes to his assignee. Being seized of the legal estate and in possession, it is for him to sell. In other states, the legal title passing to the mortgagee does hot rest in the assignee of the bankrupt mortgagor, and consequently the decisions in other states are not applicable! here.
    The argument for the appellees was the following:
    The decisions of the Supreme Court of Louisiana, and the Circuit Court of the United States, for the Louisiana district,.- as well . as the rules in cases of bankruptcy, adopted by the District Court, all of which are relied upon by the complainant, proceed upon the mistaken assumption of an analogy between' the cessio bonorum or concurso de acreadores of the Louisiana law, ánd the Bankrupt Act of the United States, and a supposed obligation or áuthority to . model the' one upon the other. There is no such analogy and no such authority.
    - The Louisiana concurso requires all the creditors of the bankrupt to come in, grants an immediate cessation of all actions-of every description agaiiist him, and vests' in the syndic all his property without distinction, with power to sell, cancelling all mortgages and liens, and conveying an absolute and .clear title to the purchaser. The rights of the several creditors are settled -.contradictorily, and' the liens on the property sold, which have been cancelled' by order of the syndic, attach upon the proceeds of the property in his hands. Elwes v. Estewan, 1 Marl. 193; Code 'of 1824, art. 2172; Greiner Lou. Dig. tit. Insolvency, 237; and the authorities quoted in Fisher n. Vose, 3 Robinson, L, R. 475.
    In the bankrupt law there is nothing' of all this: TBe mortgage creditor is not compellable td prove his debt Under the bankruptcy. He may rely upon his lien, and' assert and prosecute it under the. state law and process. There is no authority to stay his proceedings, unless his mortgage is fraudulent or void, or alleged to be paid off, none of "which is pretended here. _ .
    _ . If he elects to come into the bankrupt court and prove his debt, he thereby relinquishes his mortgage or other lien, and stands upon the same footing as an ordinary creditor. There is no power given by the Bankrupt Act to the court, qr to the assignee-, to discriminate in the distribution of the proceeds of property sold by the assignee, between creditors holding liens on it and those holding none. The only authority the assignee has, is to redeem the mortgage under the' order and direction" of |he court, (’sect. 11.) If he does not choose to redeem, he has no power to enjoin the proceedings of the mortgage creditor. ^Th'at would be to impair the lien, contrary to- the proviso of the 2d section.
    To prevent or obstruct the recovéry 6f debts, has been held impairing the obligation of contracts. To prevent or obstruct, the assertion of a lien, and take away the existing remedy upon it, must impair the lien.

      All the decisions of this court upon the former subject are autho-. rities for us.
    The dissenting opinions of Judge Bullard, in the state of Louisiana, against the sheriff of the first judicial district, and J. D. Roa-senda, for a prohibition, and in the case of F. B. Conrad, assignee •of Thomas Banks, for a mandamus, which are before .your honours in this case, outweigh, as we humbly Contend, in soundness and acuteness; of argument, the contrary decisions of his brethren.— Scevola assmtior.

    The (wide range of judicial legislation exercised by' the District Court, in providing that “ the order of sale shall, ipso facto, annul the mortgages, liens, &c., existing on the property sola,” and the vast addition to, and alteration in, the bankrupt law, thus made, cannot ;receive the sanction of this court. What part of the act authorizes the District Court tó attach liens on the . proceeds of property sold, to distribute such proceeds otherwise than rateably, without discrimination, or to forcé into its’forum a mortgage creditor •who chooses to rely tip on hisriien, and not to prove his debt?
    Whence does 'that' court derive its power to order a state register of mortgages to cancel the inscription of such mortgages, on his - records ? If he refuses, how is such order to be enforced ?' If enforced, what is its effect ? The Supreme Court of Louisiana, indeed,, courteously lends its aid to enforce the decrees of the District Court sitting in bankruptcy, but will the courts of other states do so ?‘ If not, is the District Court of the United States armed with authority to enforce its own mandate against a state officer, in regard to his. official duty under the laws of the state, as to the registration and cancellation .of mortgages ? Qan such a pretension' be maintained in-all the states? And how is uniformity in - the administration of the bankrupt law to be secured, by the adoption of rules going far beyond its text, and most certainly incapable of execution in many of the states ?
    This branch of the subject assumes a tenfold importance when the court considers that these rules and orders, and the decrees passed under them, constitute a part of the extraordinary bankrupt jurisdiction granted to the District Court alone, under the 6fh section. Such decrees, this court had decided, are without appeal. Nelson. v. Carland, 1 Howard.
    While concurrent jurisdiction, therefore, is granted by the 8th. section to the Circuit and District Courts, of nil suits at law and in equity, which may be brought by an assignee against any one claimr ing an adverse interest, or by such person against the assignee, and the suit so brought may be carried, by appeal, to this tribunal, the hasty and inconsiderate orders of the District Court in bankruptcy* though they may work irreparable injury, are not subject to any supervision.
    On the score of authority, it cannot be expected we should do more than produce the decisions of circuit or district judges. These questions have not yet been adjudicated in this court.
    We rely on the following cases, decided by judges of this court on their. circuits or by district judges, respectable for learning and ability.
    The decision of Mr. Justice Baldwin in the matter of Kerlin, a bankrupt, reported in the United States Gazette, of Philadelphia, of 26th October, 1843.
    The decision of Mr. Justice Story in the case of Mitchel, assignee of Roper, v. Winslow and others, in the Circuit Court of Maine, reported in the Law Reporter of Boston, for December, 1843, pp. 347' and 360. ’
    Mr. Justice McLean’s decision in the case of N. C. McLean, assignee'in bankruptcy, v. The Lafayette Bank, J: S. Buckingham apd others; to-be found in the Western Law Journal for October, 1843, p. 15.
    Mr. Justice McLean’s decision in the case of N. C. McLean, as-signee, v. James F. Meline. Western Law Journal for November, 1843, p. 51.
    . Mr. Justice Story’s decision in the case of Muggridge, 5 Law Rep. 357. In Ex parte Cooke, 5 Law Rep. 444; Ex parte New-hall, 5 Law R. '308. In Dutton v.- Freeman, 5 Law R. 452.
    Mr. Justice Thompson’s 'decision in Haughton v. Eustis, 5 Law R-506.
    Judge Prentiss’s (of Vermont) opinion in Ex parte Spear, 5 Law R. 309and Ex parte Comstock, 5 Law R. 165. ,
    Judge Conkling’s- (of New York) opinion in Ex parte Allen, 5 Law R. 368.
    Judge Monroe’s {of Kentucky) opinion in Niles’s Register, 5th November, 1842; and those of Irwin, Randall, and Gilchrist, Ibid.
    ' These cases, it is humbly submitted, establish the doctrine for which the defendants contend, namely; chat the state lien in this case was properly and rightfully enforced under the state law and process; that the rules of the District Court of Louisiana relied upon are void and- without force, exceeding the jurisdiction of that court, and interpolating new principles into the Bankrupt Act; that the title acquired by Preston and Phelps, at sheriff’s sale, under , execution fóünded upon the- mortgage, is good, valid against the . assignee; -and that the demurrer ’was properly sustained, and the bill rightfully dismissed.
    “ Proceedings in bankruptcy,” as per section 6, ate off exclusive cognisance in the District Courts of the United States.
    These proceedings are but, acts.of administration upon property ' and accounts, closely resembling the administration of decedents’ -estates in the courts of probate. Proceedings in’ bankruptcy by-virtue of the provisions of- this section, are not “suits at law-and- ’ equity,” which -may-be brought by and against-the assignee, touche ing property or rights of property claimed to have belonged to the bankrupt, as per section 8. To .entertain such suits, the Circuit and District Courts of the United States have “ concurrent jurisdiction.”
    And of suits in court pending by and against a party who 'becomes bankrupt, such pending controversies do not abate by operation of the law upon the party’s being declared bankrupt.
    The jurisdiction of the state courts, as to such controversies, is not interfered with by the act of bankruptcy. The assignee becomes vested with the precise rights and condition of the bankrupt in respect to his property and controversies, which were possessed and sustained by the bankrupt on the day of hiá being “ decreed” a bankrupt. And the bankrupt’s suits pending are to be “prosecuted and defended (by the.assignee) in the.same way, and with the same effect, as they might have been by such bankrupt.” Section 3.
    In this case, the judgment of Boyd against the mortgagor, the ordeT of seizure and sale, and the levy of execution, were all before the party filed his petition in bankruptcy.
    Now, by the express provision of section 3, the assignee’s rights and duties in respect to this state proceeding upon the mortgage, (irrespective of its being a question of mortgage,) were neither more nor less than to present himself in the court where the case was progressing to final execution, and there make any defence Norton, the bankrupt, might have done. But it wholly subverts the provision of section 3, to indulge the assignee in disregarding such pending controversies, and then permit him to assume the attitude of plaintiff in the samé case, commencing de novo in the District Court of the United States, and there to discard as coram nonjudice all that had been previously adjudged in the state court.
    ' But besides that this was a case pending in a state court where the assignee should have made defence, as per section 3, as a question of mortgage, it has more distinction and' immunity in the consideration of the Bankrupt Law. And in this aspect the'District Court of the-United States proceeding in bankruptcy had no jurisdiction of it, (unless the mortgagor had chosen to file his claim,) save and except to administer and sell the equity of redemption, or to redeem the mortgage, as per section It.
    There is no legitimate pretence this bill in chancery is a proceeding in bankruptcy. The district Court has no equity jurisdiction in this respect, but in virtue of section 8, and which confers it equally on the Circuit Court. And yet the bill seéks an administration in bankruptcy of this mortgaged property coercively against the- mortgagor, within rules prescribed under the provisions of section 6. If this be so attainable, then the Circuit Court too, which has no original jurisdiction in bankruptcy, may nevertheless obtain it by bill in equity.

      But all the pretensions of this bill are conceived to be unparalleled in the conflicting and imperious results it proposes.
    Section 2, of the Bankrupt Act, is regarded as express authority to the assignee and the court in bankruptcy to impair, annul, and' destroy this mortgage.. And by the rule of court seizing upon the mortgage for administration in bankruptcy, to maintain a semblance of respect for the mandates of section 2, the provisions of section 5 .are deliberately violated, which forbids any “priority or preference”. to be awarded among private creditors. It assumes the right to treat as a nullity an ordinary state adjudication of a mortgage interest, fully rendered previous to'any jurisdiction having attached to the bankrupt court. In truth, the state adjudication is adjudged of as an ex post facto usurpation. The jurisdiction was well enough in the state court inceptively, and throughout its progress to the rendition of judgment. But while the execution of the state c'ourt was being consummated, the debtor filed his petition. And this, the bill assumes, ipso facto,, reversed the judgment' of the state court or avoided- it as a nullity.
    In view of a fair interpretation of the Bankrupt Act, and of the disastrous considerations presented by the bill in this case, we assure ourselves with th.e belief, that results so unjust; so inharmoniously absurd, will hot be sustained in the reversal of this -decree.
    The hen of a judgment and execution attaches as to real estate upon the rendition of, the judgment, as to personal properly upon the seizure or levy of the execution. Code of Practice, art. 722, , 723; Civil Code, art. 3289; 3290, 3291, 3292; Dufly v. Townsend, 9 Mart. R. 585; Bradbury and Foster v. Morgan, 2 L. R. 479.
    Here the levy or seizure was before the date of the petition in bankruptcy, and the lien of the judgment had attached even if the property levied on had been personal, much more when it was real.
    The order of seizure under a mortgage is by the law of Louisiana a judgment from which appeal lies to the Supreme Court, and On which, upon a proper case shown, injunction may issue. Gurlie v. Coquet, 3 N, S. 498; McDonough v. Zacharie, 3 L. R. 316; Code of Practice, tit. Injunction, art. 296, 309; Wells v. Hunter, 6 N. S; 311; Crane v. Phillips, 7 N. S. 276; 8 N. S. 683; 3 N. S. 480 ; 4 N. S. 499.
   Mr; Chief Justice TANEY

delivered the opinion of the court.

It appears in this case, that, in January, 1844, a bill was filed in the Circuit Court of the United States for the eastern district of Louisiana, sitting in chancery, by Richard Nugent, assignee of the estate of Elizabeth Norton in bankruptcy, stating, that the said Elizabeth Norton, on the 9th day of May, 1842, filed her petition in the District Court of the United States to be declared a bankrupt, and thM she was accordingly decreed to be such about the 1st of June, in the same year; that she returned in her schedule two lots of ground in the city of La Fayette, particularly described in the bill; and that George William Boyd was, among others, returned as a creditor for the sum of $9000, and -.that notice was served on him of the proceedings in bankruptcy. The bill further states, that prior to and at the time of the petition in bankruptcy die two lots above, mentioned were affected by a special mortgage, to the said Boyd,, which was valid by the laws of Louisiana, .for the sum of $9000 and upwards; that prior to- the bankruptcy of Elizabeth Norton, that is to say, about the 11th of November, 1841, Boyd commenced suit upon his said mortgage in the proper state court of Louisiana,. and obtained judgment, with the privileges of a mortgage^ and issued execution thereon, which was levied upon the said property about the 16th of February, 1842; and on-or about the 4th of dune following the property was regularly sold by th.e sheriff under the execution to Isaac T. Preston and Abner Phelps, who took possession of the said twp lots and continue to hold them, claiming as owners. The bill further states, that the complainant, having re-* ceived. notice of the levy and intended sale, undér the execution, duly, notified the said Boyd', Preston, Phelps, and thé sheriff in writing, before the sale, of his appointment as assignee as-aforesaid, and cautioned them, not to proceed with the sale; but that the parties, continuing and intending to.defeat fhe just rights of the'complainant, proceeded to sell, and ■ placed the purchasers above mentioned in possession of the property iii question. The complainant refers to and exhibits with his bill certain rules adopted by the District Court of the United States for the disposition of real estate surrendered by bankrupts,.and encumbered by mortgages; and charges,• that by virtue of the Bankrupt Act all the proceedings in the state court, ought-to have been stayed, from the moment the petition of the bankrupt was filed ;. and that the subsequent proceedings were irregular, and conferred no title on the purchasers; and that the complainant was entitled to take the property from- the hands of the sheriff, and to administer and sell the same under the direction of the District Court by virtue of the act of Congress and the rules of court above mentioned. The bill then prays process against Boyd, Preston, and Phelps, and that the proceedings under the execution subsequent to the petition in bankruptcy should be declared' irregular; that the title of Preston and Phelps from, the sheriff should be decreed to be null and invalid, and the said Preston and Phelps be .ordered to restore the said lots to the possession of the complainant^ to be administered and sold by him in conformity with the orders' of the District Court of the' United States, and in pursuance of the rules before referred to; and that Boyd should be directed to come into the District Court, and conform himself to the orders of the court and the rules aforesaid.

The defendants appeared, and demurred to the bill; and upon final hearing on. the demurrer, the following decree was passed by the Circuit Court:—

“ This is a bill in equity, presented by an assignee in bankruptcy, to set aside a certain sale, made under a writ of seizure and sale from the'.District Court of Louisiana, upon the ground that the District.Court of the United. States was, by the bankrupt law passed by Congress, on the 19th of August, 1841, vested with exclusive jurisdiction over all matters appertaining to the settlement of the affairs of the.bankrupt; and that, consequently, the sale made by the District Court of Louisiana has transferred no legal title to the property. . The bill further claims the property sold as a part of the property of the bankrupt to be sold or.otherwise disposed of under the orders of the District Court of the United States. It appears that the property in question consists of real estate, and that the same was sold to satisfy a special mortgage held by the creditor who obtained the order of seizure and sale from the state tribunal.
<c I have, after an attentive consideration of the various allegations in the bill, ordered the same to be dismissed, and shall now proceed to state very briefly the grounds upon which I acted. In the first place, I do not consider that there is any equity in the bill; the property was specially mortgaged to satisfy the claim of the' creditor who demanded the sale; and it does not appear that in the assertion of his right he has in any manner interfered with the"rights of the other creditors of the bankrupt. It does not appear that any doubt existed as to Ihe validity of the mortgage, or that the creditor-has obtáined any right or any advantage over the other creditors which the District Court, sitting in bankruptcy, would not' have been bound to award him under the-express provisions of the bankrupt •law. It is quite clear that the liens and mortgages which are valid . under the state law must be. protected by the District Court of the United States, sitting in bankruptcy, and it will not be pretended that the creditor at whose instance the property in question was sold would not have been entitled, under any and all circumstances, to the proceeds of that property to sátisfy the amount alleged to be due him. -What benefit would then accrue to the general creditors of the bankrupt ■ by the interference of this court in a matter which seemá" to have been fairlv and finally, adjudicáted ? While I am well satisfied that no good would arise from such an interference, I am equally well satisfied that great'injustice would be done both to the mortgage creditor and to the estate of the bankrupt, by subjecting both unnecessarily to additional costs and expenses.
“ I agree fully in the opinion, that upon the ground of expediency the jurisdiction' of the District Court of the United States over all the property of the bankrupt, mortgaged or-otherwise, should be exclusive'; but I do not understand the.bankrupt law to render it so. Where a creditor, by virtue of a special mortgage, elects to foreclose that mortgage before a state tribunal, the federal court is not called upon to interpose, except in cases where from the nature of the case wrong or injustice may be done to other creditors in interest, or where the mortgage itself may be contested.
I wish it, however, to be distinctly understood, that I am fully of opinion that the District Court of the United States is vested with jurisdiction over mortgaged property belonging to the' bankrupt, and that when a proper case is shown, it has power to foreclose a mortgage, and to do all other acts necessary to bring about a final • distribution and settlement of the bankrupt estate. I am also of the opinion, that in a case where a creditor calls in question the validity of a mortgage held by another creditor, it is the duty of the said court to'exercise jurisdiction over the questions involved, and, if necessary, to declare the mortgage null .and void.
“ In the case before me no such question is involved, and I,see no reasons why the equity powers of this court should be exercised to do that which cannot change the rights pf the parties interested,
. but which would haye the effect of doing a positive injustice to the mortgage creditor, by subjecting, his property to useless costs and expenses.
“ It is, therefore, ordered that the complainant’s bill be dismissed.”
We have inserted the whole of this decree, because we think the court were not only right in dismissing the bill, but, with a single exception, we concur also in the principles and reasoning on which the learned judge founded his decision. The exception to which we allude is that part of the decree in which he expresses his opinion, that upon the ground of' expediency the jurisdiction of the District Court of the United States over all the propefty of the bankrupt, mortgaged or otherwise, should be exclusive, so as to take away from the ■ state courts any jurisdiction in such cases. Upon that subject it is not our. province to decide, and we have no desire to express an opinion upon it. But in every other respect the decreé conforms to the opinion delivered by this court, at the present term, upon the motion for a prohibition in- the case Ex parte the City Bank of New Orleans, in the matter of Wm; Christy, assignee of Daniel T. Walden, a bankrupt, v. The City Bank of New Orleans. In that case the opinion of this court in relation to the jurisdiction of the District Court hi matters of bankruptcy has been fully expressed, and need not be repeated hereand according to the. principles therein stated the decree of the Circuit Court in this chse must be affirmed.

Mr. Justice CATRON.

•I think the adjudication in this case is in-conflict with that made in the Circuit.Court at New Orleans in Christy against the City Bank; and in support of which; a majority of my brethren saw proper to' express their views at a' previous day 'during this term, in the unsuccessful application of the bank for a prohibition; but that the cases are alike — and one cannot be maintained, and the other overthrown. .' . _ ' •

. _ In that cáse the petition of lie assignee set forth the entire legal grounds, why the District Court should annul the judgments in the state -eourt, and pronounce the sale void.

1. That the property'sold'was given in by Waldén, the bankrupt, as part of his effects.

2. That .the bank had notice thereof, before the sale by the sheriff.

3. That the sale was void, being contrary to the Bankrupt Law, which operated to stay all further proceeding so soon as Walden’s petition was filed, and was a bar to any further prosecution of the suit until an assignee should be appointed. That the sale with notice was a fraud upon the act of Congress, and the other creditors of Walden, by reason' of the law, because the bank was endeavour-ing to obtain an'illegal preference." '

4. That at the sale the property was struck off in blocks, although consisting-of different buildings; at two-thirds of its value: “ All of which actings' arid doings are prohibited by law, and render said sale null and void/’ .

5. ’ That the sáfe was in other respeets irregular, the legal formalities not having been observed. '

6. That the mortgage was void for usury, because in effecting the loan the bank gave Walden bonds on the Second Municipality instead of money, ana they were then at á discount at from twenty to twenty-five per cent.‘

To these allegations the* bank answered:—

' 1". By plea that the' District Court was not by law empowered to decide on'-the matters charged.

' ■2. That all the matters and things set forth had already been decided by a court of competent jurisdiction — referring to the adjudications by name.'

3., 'The, defendant answers, and avers, that the mortgage was legal 'ajid valid, and given upon a full and adequate consideration! *

4. That the order of sale was duly granted, and the»writ thereon - properly issued: and that the property described in the petition was lawfully seized, and after a compliance with all the legal formalities, was sold, arid adjudicated to the defendantsf,that the price was fully" paid by giving a credit — and. that the property is held under an indefeasible title.

5. All the allegations in the. petition not admitted, are denied, and a trial demanded of them.

. This answer was excepted to as containing no legal grounds of defence'; the: question was^adjoumed,. under the 6th section of the-BankfuptLaW, to the Circuit Court to he thereheardund determined; ■ It stood in'that court as ón bill and answer r- the answer was taken,' of'course .as,true in all its parts — the only question.being whether any legal ground of defence was furnished by the plea,-supported by an answer, denying the alleged unfairness of the sale — presenting tiie same question, in substance as did the case of Harpending v. The Hutch Church, in 16 Peters. By setting the case down on plea and answers, the proceedings in the supreme and inferior state courts were admitted' of "necessity to have been properly and fairly conducted ; and the sale legally and fairly made. This was the undoubted' aspect of the case as presented to and decided by the Circuit Court. Its decree, in the form of instructions to the bankrupt court, is, first — That the latter had full and ample powers to try all the .questions presented in the assignee’s petition: 2dly..-That the sale made under the seizure by order of the state court was void;- and that the bankrupt court should • declare it so: 3d. That the bankrupt court had full power to re-try the validity of the mortgage and ascertain whether it was void for usury or otherwise :• and this on the ground exclusively that the proceedings in the state courts were annulled by force of the bankrupt , law, and the fact of Walden applying for its benefit.

Taking the petition and answer together, and a case existed in all its features like the present, on the title by execution.; each being a fair and regular proceeding in the state court. One is suppressed ■ — and the other maintained. And -oh. what ground does the -district judge assume to act contrary to the former adjudication ? Because it-was equitable and for the best interests of the estate to be distributed, in his judgment. The obvious-meaning of which is, that he had power to overthrow the title or not, at - his discretion; and that such discretion was the law of the. case and the tenure of the title, according to the true intention of the Bankrupt Act. On this assumption are the two cases attempted to be reconciledand on no other can they avoid direct conflict, even in appearance. In reality, the one title is as- good as the other. The tendency of such a. doctrine is too threatening- to titles to be silently acquiesced in. Did Congress intend that the force and effect of- judgments and executions in a state court, should depend on the sole discretion of a judge sitting in bankruptcy ? Was it intended to discard the axiom, that .unrestrained'discretion in. those that govern, is inconsistent with the rights of those that-are governed, be they-of property or person?- It is very difficult to.suppose so; and as difficult to accommodate the construction of the act to such a supposition. It is declared, “ that it shall not be construed to annul, destroy, or impair,- any liens or mortgages, on property real or personal, which may be Valid by-the laws of the states respectively.” ;

Here two liens are combitied '; one by. mortgage, the other by execution levied. In Christy v. The City Bank, as already stated, that by mortgage was recognised as a right protected by the act, but to • be administered in the bankrupt court only; that by execution was pronounced void. This decision the court below was asked Jo follow out, in the case before us, and refused.

By the execution levied,' the lien was valid by the laws of the state” — in the words of the saving clause; the remedy by seizure created the right; to annul, or to stay the execution, impaired .a right, excepted out of the act. Since the opinions were delivered in the ex parte application of the City Bank, we have in effect so held at the present term, in Waller v. Best.

In making exceptions in favour of liens created by judgment and execution, Congress was governed by practical considerations. The-states usually were large, the .bankrupt courts in many of them far off from the creditors, the debts owing by the bankrupt- small in amount'to a great extent; for these recoveries would Be had in the inferior courts and before magistrates; the property would be seized by execution, and he the debtor be driven into bankruptcy; this step might be taken secretly. The officer having possession of the property had to dispose of it according to the commands of the writ, and make return to the state tribunal; 9. return that the debtor had- applied for the benefit of the- bankrupt law would not be a legal return, as I have held, and always supposed; and that a‘decree declaring the party a bankrupt, would .not alter the caseas in either, the .lien would be not only impaired, but destroyed where the levy alone gave it, as is the case in many instances. To drive, the small creditor into the bankrupt court to establish his demand and effectuate his lien, would often have been worth more in trouble and' expense than the debt, and -in the mean time the property, being abandoned by the officer, and not taken possession of by the' as-signee, would in many instances perish,' These facts were too palpable for Congress to overlook. To protect such liens, I take it. the exception was a compromise between the opponents and friends of the bill; the one side supporting rights secured by the state laws, and the other seeking to adopt a different rule under the Constitution of the United States, in regard to the relation of .debtor and creditor.

In many cases the bankrupt might owe debts in other states than that where he would be declared bankrupt; then other, difficulties 'would arise on executions being levied in. the foreign jurisdiction, to.which the powers of the bankrupt court could not extend. In all the cases enumerated the assignee had given to him the same powers' the bankrupt previously had, to sue and defend, and. no material'difficulty could arise (or has arisen) in adjusting the claims-in the state courts, to. which the assignee was bound to apply.

That a mortgage can be foreclosed in the bankrupt court, and the lien given by it be preserved -there, I have never doubted, if the jurisdiction of a state court had not attached, and was not ousted by the proceedings in bankruptcy. .

For the foregoing, reasons, I think the court of Louisiana was ■ mistaken when it assumed to have power to suppress the sale made by the sheriff, or to let it stand, at its discretion.

The decree is deemed entirely proper; nor would the reasons for it have been noticed had not my brethren adopted them to the extent above; and with which adoption I cannot concur.