text:
    No. 84-5494.
    Cole v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 84-5507.
    Lavonte v. Walter et al.
   Ct. App. Ore. Certiorari denied.


text:
    No. 84-5556.
    Castaneda-Castaneda et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5564.
    Dano v. Szombathy.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 84-5568.
    No. 84-5598.
    Powell v. United States; and Pourroy v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: 740 F. 2d 976.


text:
    No. 84-5585.
    Bishop v. Wyoming.
   Sup. Ct. Wyo. Certiorari denied.


text:
    No. 84-5602.
    Russell v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5634.
    Campbell v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5635.
    Quezada v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5649.
    Reagle v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5699.
    Young v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5757.
    Occean v. Immigration and Naturalization Service.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5781.
    Wilson v. York.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 84-5804.
    Jones v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 84-5820.
    Bellman et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5821.
    Holman v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 84-5825.
    Porter et al. v. Louisiana.
   Ct. App. La., 3d Cir. Certiorari denied.


text:
    No. 84-5834.
    Cook v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5835.
    Bernard v. Pollard, Judge, Petersburg Circuit Court, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5838.
    Tessier v. Illinois.
   App. Ct. Ill., 5th Dist. Certiorari denied.


text:
    No. 84-5841.
    Irons v. Lockhart, Director, Arkansas Department of Corrections.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5851.
    Ortega v. Illinois.
   App. Ct. Ill., 5th Dist. Certiorari denied.


text:
    No. 84-5852.
    Wilson v. Sielaff, Director, Virginia Department of Corrections.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5862.
    P. L. R., a Child v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 84-5863.
    Southers v. Tennessee.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 84-5865.
    Studley v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5866.
    Smith v. Jago, Superintendent, London Correctional Institution.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5871.
    Brown v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5874.
    Gaerttner v. Robison et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5883.
    Davis v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 84-5884.
    Reed v. Toledo Area Affirmative Action Program for the Construction Industry et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5886.
    Hutchison v. Marshall.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5887.
    Murphy v. Kentucky.
   Ct. App. Ky. Certiorari denied.


text:
    No. 84-5890.
    Younie v. Maryland.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5893.
    Van Sant v. Solomon et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5894.
    McCoy v. Garrison, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5896.
    Gaston v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-5899.
    Brown v. King, Secretary, Louisiana Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5900.
    Cannaday v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 84-5901.
    Chaney v. National Railroad Passenger Corporation.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5903.
    Hudson v. Garland, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5907.
    Davis v. Heckler, Secretary of Health and Human Services.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-5908.
    Redding v. Benson et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5910.
    Brown v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5915.
    Dodson v. Zimmerman et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5920.
    Trevino v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 84-5921.
    Williams v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5924.
    Starcher v. Ohio.
   Ct. App. Ohio, Lorain County. Certiorari denied.


text:
    No. 84-5927.
    Davidson v. Scully, Superintendent, Green Haven Correctional Facility, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5929.
    Balich v. Stanley.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5930.
    Antonelli v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-5931.
    J. G. et al. v. Tauke, Guardian ad Litem, et al.
   Sup. Ct. Iowa. Certiorari denied.


text:
    No. 84-5932.
    Calloway v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-5935.
    Mitchell v. Barr et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5936.
    Powell v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5939.
    Williams v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5940.
    Buschard v. George, Judge, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5942.
    Thomas v. Missouri.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 84-5945.
    Watkins v. Heckler, Secretary of Health and Human Services.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5946.
    Gallo v. Holland, Warden.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 84-5948.
    Beardon v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 84-5952.
    Messina v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 84-5956.
    Blankenship, aka Brown v. Cabinet for Human Resources et al.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 84-5957.
    Haili v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5961.
    Hearn v. R. R. Donnelley & Sons Co.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5962.
    Moore v. Black, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5965.
    Weir v. Wilson et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5967.
    Garrett v. B-J-C Hospital & Nursing Home et al.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 84-5970.
    Jenkins v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-5971.
    Small v. Wyoming.
   Sup. Ct. Wyo. Certiorari denied.


text:
    No. 84-5973.
    Garrett v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5975.
    Weiss v. Missouri Department of Mental Health et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5978.
    Price v. Heckler, Secretary of Health and Human Services (two cases).
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5980.
    Oliver v. Zimmerman et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5981.
    Marcinski v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-5982.
    Valentine v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5983.
    Skrezyna v. Cash et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-5985.
    Slappy v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 84-5986.
    Mondaine v. Wyrick, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5987.
    Fields v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-5988.
    Miner v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 84-5989.
    Fayomi v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5990.
    Owens v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5992.
    Ezeodo v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5994.
    Brown v. Weinberger, Secretary of Defense.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5995.
    Salters v. Greenville Housing Authority of the City of Greenville.
   Ct. App. S. C. Certiorari denied.


text:
    No. 84-5996.
    Powers v. Holland, Warden.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 84-5998.
    Mason v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6002.
    Guess v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6003.
    Schafer v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6007.
    Munnings v. Winebrenner, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6012.
    Carter v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6013.
    Flake v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6014.
    Bass v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6015.
    Beachboard v. Egger, Commissioner of Internal Revenue.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-6017.
    Anderson v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 84-6019.
    Torrey v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6027.
    Garland v. United States Parole Commission et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6029.
    Lamar v. Banks, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6032.
    Crisp v. Duckworth, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6039.
    Moreno v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-6040.
    Stotts v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6045.
    Pickett et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6048.
    Webb v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6052.
    Carter v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-6061.
    Seals v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6065.
    Forrester v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6068.
    Comes Flying v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6070.
    Simanonok v. Costle et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6077.
    Rogers v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-6095.
    Trickey v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6096.
    Streeter v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-6323.
    Jones v. East Baton Rouge Parish School Board et al.

      See also note, supra, p. 1200.

   C. A. 5th Cir. Certiorari denied.

Justice Marshall took no part in the consideration or decision of this petition.


text:
    No. 84-95.
    No. 84-504.
    No. 84-816.
    No. 84-824.
    No. 84-856.
    National Association of Regulatory Utility Commissioners v. Federal Communications Commission et al.; National Association of State Utility Consumer Advocates et al. v. Federal Communications Commission et al.; Public Service Commission of Wisconsin et al. v. Federal Communications Commission et al.; Florida Public Service Commission v. Federal Communications Commission et al.; and New York State Department of Public Service v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.

Justice O’Connor took no part in the consideration or decision of these petitions.*

Reported below: 237 U. S. App. D. C. 390, 737 F. 2d 1095.


text:
    No. 84-355.
    New York v. Smith.
   Ct. App. N. Y. Motion of Attorney General of New York for leave to intervene granted. Certiorari denied.

The Chief Justice and Justice White would grant certiorari.


text:
    No. 84-659.
    No. 84-683.
    No. 84-5524.
    No. 84-5816.
    DiPasquale et al. v. United States; Serubo et al. v. United States; Redding v. United States; and Szwanki v. United States.
   C. A. 3d Cir. Certiorari denied.

Justice White would grant certiorari.

Reported below: 740 F. 2d 1282.


text:
    No. 84-716.
    Arkansas Louisiana Gas Co., a Division of Arkla, Inc. v. Federal Energy Regulatory Commission et al.
   C. A. D. C. Cir. Motion of Interstate Natural Gas Association of America for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 84-790.
    General Public Utilities Corp. et al. v. United States.

       See also note, supra, p. 1200.

   C. A. 3d Cir. Certiorari denied.

Justice Marshall took no part in the consideration or decision of this petition.


text:
    No. 84-818.
    Rudi v. Illinois.
   Sup. Ct. Ill. Certiorari denied.

Justice White and Justice Blackmun would grant certiorari.


text:
    No. 84-888.
    No. 84-899.
    McDaniel et al. v. Georgia Association of Retarded Citizens et al.; and Board of Public Education for the City of Savannah and the County of Chatham et al. v. Georgia Association of Retarded Citizens.
   C. A. 11th Cir. Motion of National School Boards Association et al. for leave to file a brief as amici curiae in No. 84-888 granted. Certiorari denied. Reported below: 740 F. 2d 902.


text:
    No. 84-909.
    Munusamy et al. v. McClelland Engineers et al.
   C. A. 5th Cir. Certiorari and all other relief denied.


text:
    No. 84-920.
    Robinson et al. v. New Jersey et al.
   C. A. 3d Cir. Motion of Legal Foundation of America for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 84-942.
    Mississippi v. Cannaday.
   Sup. Ct. Miss. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 84-949.
    California v. Garcia.
   Sup. Ct. Cal. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-959.
    Indiana v. Moore.
   Sup. Ct. Ind. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-987.
    Duckworth, Warden, et al. v. Williams, aka Sherrard.
   C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-991.
    McIntosh v. International Business Machines Corp. et al.

       See also note, supra, p. 1200.

   C. A. 2d Cir. Certiorari denied.

Justice Blackmun took no part in the consideration or decision of this petition.


text:
    No. 84-998.
    Gibson et al. v. Firestone, Secretary of State of Florida.
   C. A. 11th Cir. Motions of Joseph W. Little and Voting Rights Committee et al. for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 84-1010.
    Champion et al. v. Deukmejian, Governor of California, et al.
   C. A. 9th Cir. Motions of Legal Foundation of America, H. Paul Lillebo, and Public Service Research Council for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 84-1038.
    De Modena, dba Sixth Avenue Pharmacy, et al. v. Kaiser Foundation Health Plan, Inc., et al.
   C. A. 9th Cir. Motions of Alabama Pharmaceutical Association et al., California Pharmacists Association, and American Pharmaceutical Association for leave to file briefs as amici curiae granted. Certiorari denied.


author: Justice Brennan and Justice Marshall,

text:
    No. 84-5626.
    No. 84-5727.
    No. 84-5735.
    No. 84-5783.
    No. 84-5792.
    No. 84-5845.
    No. 84-5880.
    No. 84-5881.
    No. 84-5960.
    No. 84-5964.
    Dufour v. Mississippi. Stringer v. Mississippi. Trimble v. Maryland. Billiot v. Mississippi. Gardner v. North Carolina. Noland v. North Carolina. Clozza v. Virginia. Byrd v. Missouri. Lemon v. Florida. Villafuerte v. Arizona.
   Sup. Ct. Miss.;

Sup. Ct. Miss.;

Ct. App. Md.;

Sup. Ct. Miss.;

Sup. Ct. N. C.;

Sup. Ct. N. C.;

Sup. Ct. Va.;

Sup. Ct. Mo.;

Sup. Ct. Fla.; and

Sup. Ct. Ariz. Certiorari denied. Reported below: No. 84-5626, 453 So. 2d 337; No. 84-5727, 454 So. 2d 468; No. 84-5735, 300 Md. 387, 478 A. 2d 1143; No. 84-5783, 454 So. 2d 445; No. 84-5792, 311 N. C. 489, 319 S. E. 2d 591; No. 84-5845, 312 N. C. 1, 320 S. E. 2d 642; No. 84-5880, 228 Va. 124, 321 S. E. 2d 273; No. 84-5881, 676 S. W. 2d 494; No. 84-5960, 456 So. 2d 885; No. 84-5964, 142 Ariz. 323, 690 P. 2d 42.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 83-6061.
    No. 84-141.
    No. 84-618.
    No. 84-726.
    No. 84-5363.
    No. 84-5441.
    No. 84-5552.
    Garcia et al. v. United States, Yarbrough et al. v. Small Business Administration, Bratton, Administrator of the Estate of Bratton v. Safeway Stores, Inc., Brady v. Commissioner of Internal Revenue, Brymer v. Rose, Warden, et al., Mysliwiec v. Donovan, Secretary of Labor, Petrofsky v. Intermountain Research & Engineering Co.,
   ante, p. 70;

ante, p. 1017;

ante, p. 1073;

ante, p. 1074;

ante, p. 1111;

ante, p. 1088; and

ante, p. 1074. Petitions for rehearing denied.


text:
    No. 84-5623.
    No. 84-5625.
    No. 84-5642.
    No. 84-5695.
    No. 84-5718.
    Howell v. Trumpower, Warden, Solomon v. Kemp, Warden, Rook v. North Carolina, Gerson v. Byrne et al., Hubbard v. Wade, District Attorney, Dallas County, Texas, et al.,
   ante, p. 1112;

ante, p. 1181;

ante, p. 1098;

ante, p. 1113; and

ante, p. 1114. Petitions for rehearing denied.


text:
    No. 83-5210.
    Edwards v. Davis et al.,
   464 U. S. 860. Motion of petitioner for leave to file petition for rehearing denied.


author: Justice Rehnquist,

text:
    MONTANANS FOR A BALANCED FEDERAL BUDGET COMMITTEE et al. v. HARPER et al.
    No. A-245.
    Decided October 10, 1984
   Justice Rehnquist,

Circuit Justice.

Applicants ask that I stay a mandate of the Supreme Court of Montana prohibiting the placement on Montana’s November 1984 ballot of a “Balanced Federal Budget” initiative. If adopted by the voters, the initiative would direct the Montana Legislature to apply to Congress pursuant to Article V of the United States Constitution to cal! a convention to consider a federal balanced budget amendment. In addition to holding the initiative unconstitutional on its face, in violation of Article V, the Montana Supreme Court held it to be “independently and separately facially invalid under the Montana Constitution. ” The Montana court’s per curiam order stated that an opinion would follow — an opinion which apparently has not yet been issued — but the order is sufficient to indicate an adequate and independent state-law ground for the decision. I am not persuaded by applicants’ attempt to distinguish Uhler v. American Federation of Labor-Congress of Industrial Organizations, 468 U. S. 1310 (1984) (Rehn-QUIST, J., in chambers). The Montana Supreme Court has rested its decision on the Montana Constitution, and it is the final authority as to the meaning of that instrument. Accordingly, for the same reasons given in Uhler, the application for a stay is denied.


text:
    THE CATHOLIC LEAGUE, SOUTHERN CALIFORNIA CHAPTER, et al. v. FEMINIST WOMEN’S HEALTH CENTER, INC., et al.
    No. A-238.
    Decided October 11, 1984
   Justice Rehnquist,

Circuit Justice.

Applicants ask that I stay an order of the California Court of Appeal, Second Appellate District, which determines, under state law, the disposition of some 16,000 aborted fetuses presently in the custody of the Los Angeles County District Attorney. Because I am satisfied that this appeal raises no substantial questions of federal law, I will deny the application.

The fetuses were discovered by a container company on the premises of a defunct pathology laboratory, and were turned over to the District Attorney’s office. After a period of indecision concerning the disposition of the fetuses, during which the District Attorney’s office was contacted by several groups, religious and otherwise, offering various means of disposal, the District Attorney made public his decision to turn the fetuses over to a religious organization for the purpose of holding a burial service, and subsequently arranged for interment in a private cemetery that had offered its space to the State free of charge.

In the meantime respondent organization had filed an action for declaratory and injunctive relief against the District Attorney, in the California courts, seeking to prevent him from turning over the fetuses to a religious group on the ground that such an action would violate the Establishment Clauses of the Federal and State Constitutions. Applicants thereafter contracted with the private cemetery to hold a religious burial service when the fetuses were interred, and to place a memorial plaque at the site. The California Court of Appeal held that the District Attorney’s proposal to turn the fetuses over to a religious organization for purposes of holding a memorial service would violate the Establishment Clause of the California Constitution, and another provision of the California Constitution prohibiting state action indicating a “preference” for any particular religion. The California Supreme Court denied review.

The California Court of Appeal found the District Attorney’s proposed actions prohibited by independent religion clauses of the California Constitution. This Court of course lacks the power to review such decisions if they are truly independent of questions of federal law. See Uhler v. American Federation of Labor-Congress of Industrial Organizations, 468 U. S. 1310 (1984) (Rehnquist, J., in chambers). Applicants contend, however, that as applied the California Constitution’s provisions have the effect of denying them their rights to free speech, assembly, and exercise of religion protected by the First Amendment to the United States Constitution. I think that applicants’ federal claims are insubstantial. Nothing in the order of the California court prevents applicants from assembling for purposes of expressing their views with respect to abortion, or from holding a religious or other memorial service. Applicants would find in the First Amendment’s Speech or Religion Clauses a right to hold their service as an incident to the actual burial of the fetuses. But the First Amendment does not entitle applicants to have the State enhance the impact of their speech by providing the subjects of a funeral service. The proper disposition of these fetuses is peculiarly a question governed by the law of the State of California. The California courts have held that California laws concerned with avoiding the entanglement of the State with religious causes prohibit the District Attorney from turning the fetuses over to applicants for the holding of a religious service. Because I can find nothing in the First Amendment that is contravened by the Court of Appeal’s holding, I am satisfied that this Court would not wish to give this case plenary consideration.

The application for a stay is accordingly denied.

       Applicants claim that this Court would have appellate jurisdiction over this case under 28 U. S. C. § 1257(2). It is questionable whether this case would present a proper appeal, since the lower court opinion does not specifically uphold a state constitutional provision against a claim that it is repugnant to federal law; nevertheless, I would reach the same conclusion with respect to this application whether a subsequent filing would properly be considered an appeal or a petition for certiorari.

       The California Constitution prohibits laws “respecting an establishment of religion,” and also guarantees the “[f]ree exercise and enjoyment of religion without discrimination or preference . . . .” Cal. Const., Art. I, § 4.


text:
    NORTHERN CALIFORNIA POWER AGENCY v. GRACE GEOTHERMAL CORP.
    No. A-379.
    Decided December 7, 1984
   Justice Rehnquist,

Circuit Justice.

Applicant asks that I stay an order of the United States District Court for the Northern District of California granting a preliminary injunction against its commencing eminent domain proceedings in state court against certain leasehold interests held by respondent. On the basis of the papers submitted to me by both parties, it seems to me that the applicant has made out a strong case for the proposition that respondent had a plain and adequate remedy at law through the process afforded under California's eminent domain laws. A party seeking an injunction from a federal court must invariably show that it does not have an adequate remedy at law. See Hillsborough v. Cromwell, 326 U. S. 620, 622 (1946). Nevertheless, for the reasons that follow I have decided not to grant the application for stay.

Respondent contends that it will suffer irreparable harm because upon the filing of a state eminent domain proceeding by applicant, an order would issue for immediate possession of the property in question. It claims that loss of possession would mean loss of its only source of revenue, and would lead to immediate financial complications. On the merits, respondent’s contention is that applicant’s exercise of eminent domain to condemn its geothermal leases, which leases were obtained from the Federal Government under the Geothermal Steam Act of 1970, 84 Stat. 1566, 30 U. S. C. § 1001 et seq., would be pre-empted by the provisions of that statute. Applicant in turn contends that respondent would have had an adequate opportunity to raise this federal claim in the state condemnation proceedings prior to being deprived of possession. See Cal. Civ. Proc. Code Ann. §§ 1255.420, 1255.430, 1250.360(h) (West 1982).

So far as the papers before me indicate, the only written document issued by the District Court in connection with its granting of an injunction contains only the following operative language:

“The court finds that the plaintiffs have satisfied the requirements for issuance of a preliminary injunction and, accordingly, a preliminary injunction will issue.
“The defendants, and each of them, are enjoined, pending further order of this court, from filing in any way, instituting or commencing any eminent domain or condemnation proceedings or any litigation affecting plaintiff’s interest of whatsoever kind or character in the property, real or personal, which is the subject of this litigation.”

Thus, the District Court has not provided any reviewing court with the benefit of its views as to the nature of the irreparable injury that respondent might suffer or the inadequacy of the remedy at law, or any other requirement for an injunction. If this were the only order or finding issued by the District Court, it seems to me to wholly fail to satisfy Federal Rule of Civil Procedure 65(d), which provides that “[e]very order granting an injunction and every restraining order shall set forth the reasons for its issuance . . .

While this Court has on another occasion summarily reversed the judgment of a District Court which failed to comply with Rule 65(d), see Schmidt v. Lessard, 414 U. S. 473 (1974), in that case an appeal lay directly from the District Court to this Court. Here, appeal as of right lies from the District Court to the Court of Appeals. I have previously expressed my view that the All Writs Act, 28 U. S. C. § 1651(a), grants the authority to issue stays of district court orders pending appeal to the court of appeals, see Atiyeh v. Capps, 449 U. S. 1312, 1313 (1981) (Rehnquist, J., in chambers), but I have also noted my belief that such an exercise should be reserved for the unusual case. Ibid. Here the absence of appropriate findings by the District Court makes it impossible for me to determine whether the District Court properly required the respondent to show that it had no adequate remedy at law in the state proceedings. The very absence of these findings, if the District Court entered no further order than the one that I have quoted, would seem to be a significant departure from the requirements of Rule 65(d); but I cannot say with any certainty that this Court would grant certiorari to review a judgment of the Court of Appeals which approved the action of the District Court here, nor can I say that the District Court may not enter appropriate findings in support of an injunction before the case is heard in the Court of Appeals.

The application for a stay is accordingly denied.


text:
    THOMAS, ACTING ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, et al. v. SIERRA CLUB et al.
    No. A-537.
    Decided January 17, 1985

      Together with No. A-540, Idaho Mining Association v. Sierra Club et al., also on application for stay of the same order.

   Justice Rehnquist,

Circuit Justice.

Applicants, the Acting Administrator of the Environmental Protection Agency (EPA), the EPA, and the Idaho Mining Association, ask me to stay an order of the United States District Court for the Northern District of California pending appeal to the Court of Appeals for the Ninth Circuit. The order holds the Administrator in contempt for failing to promulgate certain emission standards for radionuclides as required by an earlier District Court order. The controversy has reached this point due to a disagreement between the District Court and the agency over the construction of § 112(b)(1)(B) of the Clean Air Act, as added, 84 Stat. 1685, 42 U. S. C. § 7412(b)(1)(B), which governs the actions the agency must take with respect to establishing emission standards for hazardous air pollutants. Essentially, the District Court reads the section to require the EPA either to promulgate emission standards for all sources of the pollutant previously identified by the agency or to make a specific finding that the pollutant “is not a hazardous air pollutant”; the agency believes that under the section it may establish standards for some sources but not for others.

Applicants seek the unusual relief of a stay from this Court pending appeal to a Court of Appeals. See Atiyeh v. Capps, 449 U. S. 1312, 1313 (1981) (Rehnquist, J., in chambers). They have not pointed us to a conflict of authority on the issue decided by the District Court. Under those circumstances I do not think a stay is in order. Even if the Court of Appeals were to affirm the District Court I am by no means certain that four Members of this Court would vote to grant certiorari to review this statutory question.

The applications for stay are accordingly denied.


text:
    GARCIA-MIR et al. v. SMITH, ATTORNEY GENERAL OF THE UNITED STATES, et al.
    No. A-582.
    Decided February 1, 1985
   Justice Rehnquist,

Circuit Justice.

Applicants are members of a class of Cuban nationals who unlawfully entered the United States as part of the Mariel boatlift in 1980. They have been detained in the federal penitentiary in Atlanta pending Cuba’s willingness to accept their return, and have had final orders of exclusion entered against them by the Board of Immigration Appeals. Matter of Leon-Orosco and Rodriguez-Colas, Interim Decision 2974 (1983). The instant proceedings are the most recent stage of litigation which has lasted for more than four years. Attorneys for the class have sought to reopen the administrative exclusion hearings of two individual class members on the theory that they belong to a “social group,” defined as the Mariel boatlift participants, whose members allegedly would be subject to persecution if returned to Cuba, thus making them eligible for consideration for asylum. See 8 U. S. C. §§ 1101(a)(42) (A), 1158. The parties stipulated that the decisions on the two individual motions to reopen “will be binding on all asylum/withholding of deportation issues relating to membership in the Freedom Flotilla as a social group,” but they also expressly provided that the decisions would have no binding effect over the determinations of other class members “with respect to statutory and regulatory exceptions to asylum/withholding eligibility.”

The Board of Immigration Appeals denied the two test motions to reopen on the ground that the aliens had not presented a prima facie case of persecution. The District Court ruled on October 15, 1984, that the aliens had presented sufficient evidence of a likelihood of persecution and, therefore, that the Board had abused its discretion in failing to reopen the test cases. Fernandez-Roque v. Smith, 599 F. Supp. 1103 (1984). The District Court remanded the test cases to the Board and set aside all outstanding orders of exclusion.

Meanwhile, the United States and Cuba on December 14, 1984, concluded an agreement on immigration matters in which Cuba consented to the return of 2,746 named boatlift participants in exchange for the resumption of this country’s normal processing of preference immigration visas for Cuban nationals. The agreement limits the number of boatlift participants that may be returned to 100 per month, except that, if fewer than 100 are returned in a calendar month, the shortfall may be made up in subsequent months up to a total of 150 returnees per month. The Cuban Government apparently has indicated that it will not mistreat anyone returned under the agreement. Respondents contend that the United States will be severely prejudiced by any delay in carrying out this agreement because Cuba may refuse at some future time to complete its end of the bargain after it has received the domestic political benefits of the eased immigration to this country. •

Respondents appealed the District Court’s October 15, 1984, order and sought a stay pending appeal, which was denied by the District Court. The Court of Appeals for the Eleventh Circuit granted a partial stay on January 16, 1985, which it modified by order of January 25, 1985. The net effect of the stay as modified is threefold: first, to stay the vacation and remand of all outstanding orders of exclusion; second, to acknowledge the Government’s voluntary agreement not to deport any class members until February 8, 1985; and third, to prohibit the Government from taking any “action to return to Cuba any of those class members identified in the stipulations who claim eligibility for asylum on the ground that they have a well-founded fear of persecution because of membership in the social group, and who are not returnable under subsection 2 of 8 U. S. C. § 1253(h), until such time as the issues on this appeal are resolved or until further order of this court” (footnotes omitted). Applicants seek to have this stay set aside or further modified.

A stay granted by a court of appeals is entitled to great deference from this Court because the court of appeals ordinarily has a greater familiarity with the facts and issues in a given case. See Bonura v. CBS, Inc., 459 U. S. 1313 (1983) (White, J., in chambers); O’Connor v. Board of Education, 449 U. S. 1301, 1304 (1980) (Stevens, J., in chambers); Coleman v. PACCAR, Inc., 424 U. S. 1301, 1304 (1976) (Rehnquist, J., in chambers). There is no need to evaluate applicants’ likelihood of success on the merits; they simply have not made a showing of irreparable injury which would warrant interference with the partial stay granted by the Court of Appeals. The Court of Appeals merely refused to further delay deportation of class members who would not be eligible for asylum under the “social class” theory even if the two individual test motions were ultimately successful on the merits. These are persons who are excludable and not entitled to asylum under 8 U. S. C. § 1253(h)(2) because they have committed serious crimes or they otherwise pose a danger to the security of the United States. There is no reason to grant these individuals automatic relief simply because some of their fellow class members may be eligible to be considered for asylum.

Under the partial stay, every class member may pursue his own individual remedies during the pendency of the appeal and, if he is not excludable under § 1253(h)(2), prevent his deportation. In fact, the terms of the partial stay shift to the Government the burden of proving that the alien is within that statutory provision before he may be excluded, when ordinarily the burden would be on the alien to prove his entitlement to remain in this country. Applicants’ principal argument against the partial stay is that requiring individual motions to reopen would present significant administrative difficulties. Each of the more than 1,500 class members will have to file individual motions to reopen. The necessary balancing of these difficulties against the prejudice to the Government from further delay is something the Court of Appeals is in a far better position than this Court to do. The specificity of the partial stay order indicates that it was drafted with some care and that it endeavors to reflect a considered balancing of the various interests at issue. This Court is not in a position to second-guess a balancing of this kind.

The application is denied.


author: Mr. Chief Justice TANEY

text:
    Benjamin G. Sims, Plaintiff in error, v. Thomas Hundley.
    The decisions of this court in Groves v. Slaughter, 15 Peters, 449, and Rowan V. Runnels, 5 Howard, 134, again affirmed. .
    The continuance of a cause, or the refusal to continue it, rests in the sound discretion of the court in which the motion is made, and cannot be reviewed by writ of error. This, also, has been long settled.
    Under the statutes of Mississippi, a protest of promissory notes, and statement of notices given to the parties, being certified under the notarial seal and verified by the affidavit of the notary, may be read in evidence. It is not necessary to introduce the notary, personally, to testily.
    Under a plea of non assumpsit, testimony cannot be received relating to the residence of a party and bearing upon the jurisdiction of the court.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi.
    In 1835, the following notes were executed: —
    $ 4,000.

      Port Gibson, 2d May, 1835.
    On the fifteenth day of February, eighteen hundred and thirty-seven, I promise to pay, to the order of Passmore Hoopes, four thousand dollars, value received, negotiable and payable at the office of the Planters’ Bank at Port Gibson.
    H. N. Spencek.
    Indorsed: Passmore Hoopes, Benj. G. Sims.
    $ 5,169.

      Port Gibson, May 2d, 1835.
    Twelve months after the fifteenth February, 1836,1 promise to pay, without defalcation, to the order of Passmore Hoopes, five thousand one hundred sixty-nine dollars, value received, negotiable and payable at the office of the Planters’ Bank at Port Gibson.
    H. N. Spencer.
    Indorsed: Passmore Hoopes, Benj. G. Sims.

      $ 4,000.

      Port Gibson, 2d May,. 1835.
    On the fifteenth' day of February, eighteen hundred and thirty-eight, I promise to pay, to the order of Passmore Hoopes, four thousand dollars, value received, negotiable and payable at the office of the Planters’ Bank at Port Gibson.
    H. N. Spencer.
    Indorsed: .Passmore Hoopes, Benj. G. Sims.

      Port Gibson, May 2, 1835.
    Twelve months after the 15th February, 1837, I promise to pay, without defalcation, to the order of Passmore Hoopes, five thousand one hundred sixty-nine dollars, value received, negotiable and payable at the office of the Planters’ Bank at Port Gibson. H. N. Spencer.
    Indorsed: Passmore Hoopes, Benj. G. Sims.
    $ 3,907.17. . Clinton, December 14th, 1835.
    On the first day of January, eighteen hundred and thirty-eight, I promise to pay Thomas Hundley three thousand nine hundred and seven dollars and seventeen cents, for value received. Benj. G. Sims.
    All these notes came into the possession of Thomas Hundley.
    In April, 1838, Hundley brought a suit in the Circuit Court, upon all the notes, against Sims, the plaintiff in error.
    At May term, 1838, Sims, the defendant, filed two pleas, 1. non assumpsit, and 2. that the notes were passed to Hundley for the purchase of slaves illegally introduced into the State, in contravention of the second section of the seventh article of the constitution.
    The plaintiff joined issue upon the first plea and demurred to the second. The court sustained the demurrer, and the cause went to trial upon the general issue plea.
    When the cause was called for trial, the defendant’ moved for a continuance, and filed an affidavit, which it is unnecessary to state; but the court refused the continuance, to which refusal the defendant excepted.
    The bill of exceptions then proceeds as follow's: —
    The plaintiff, then produced the following record of a protest of the said note for $ 5,169, which said record is in the words and figures following, to wit: —
    State of Mississippi, Claiborne County, ss:
    I, William M. Randolph, - notary public, branch Planters’ Bank, Port Gibson, duly commissioned and qualified according to law, and residing, in said town, do hereby certify, that on the eighteenth day of February, 1837, I went to the branch Planters’ Bank at Port Gibson, and then and there presented for payment the original note, of which the following is a true copy:
    $ 5,169.

      Port Gibson, May 2d, 1842.
    Twelve months after the 15th. February, 1836, I promise to pay, without defalcation, to the order of Passmore. Hoopes, five thousand one hundred and sixty-nine dollars, value received, negotiable and payable at . the office of the Planters’ Bank at Port Gibson. H. N. Spencer.
    Indorsed, — Passmore Hoopes,
    Benj. G. Sims,
    Thos. Hundley.
    And I then and there demanded payment of. the. said note, according to the tenor and effect, and was answered by the teller of the said bank, that the said note would not be paid, and that no funds were deposited in said bank for that purpose; and the said note was not paid by, any person, when'payment thereof was demanded as aforesaid. Whereupon, I protested said note for non-payment, and notified the parties thereto of said demand, non-payment, and protest, and that the holder of said note looked to them for payment thereof, which notices were given at the time and in the manner following, to wit: —• (Copies annexed.)
    For Passmore Hoopes, written notice of the above tenor was handed to him at his store in Port Gibson.
    For Benjamin G. Sims, a written notice of the same tenor was put in the post-office -at Pprt Gibson, on the same day, directed to him- at Clinton, Mi. Which facts, then and there noted by me on my official record, constitute, as herein set forth, a full and true record of all that was done by me in the premises.
    ,- -i S'J
    In testimony whereof, I have hereunto set my hand and affixed my official seal, this 1st day of June, 1838.
    Wm. M. Randolph, Notary Public.

    State of Mississippi, Claiborne County:
    Personally appeared before the undersigned, justice of the peace for said county, the above-named Wm. M. Randolph, who made oath, that the foregoing record and certificate contain the truth, to the best of his knowledge and belief.
    Wm. M. Randolph.
    Sworn to before me, this 1st day of June, 1838.
    Lewis Cronly, J. P. ' [seal.]

      NOTICES.

      Port Gibson, 18ÍA February, 1837.
    Benj. G. Sims :
    Please to take notice; that a note drawn by H. N. Spencer, in favor of Passmore Hoopes, for the sum of $ 5,169, and dated 2d day of May, 1835, was this day protested by me for nonpayment, and that the holder looks to you for payment as indorser thereof. Respectfully,
    Wm. M. Randolph, Notary Public.

      Port Gibson, 18iA February, 1837.
    P. Hoopes :
    Please to take notice, that a note drawn by H. N. Spencer, in your "favor, for the sum of $ 5,169, and dated the 2d day of May, 1835, was this day protested by me for non-payment, and that the holder looks to you for payment as indorser thereof. Respectfully,
    Wm. M. Randolph, Not. Pub.

    To the introduction of which the defendant, by his attorney, objected, which objection the court overruled, and adjudged the said record sufficient; to which opinion the defendant, by his attorney, excepts; and thereupon the other records of protest on said notes of Spencer, indorsed by defendant, were produced and read, and the same being identical in substance with the preceding, it is agreed said exception shall apply to them also; the plaintiff then read said records, proved that said notes were protested on the proper day, and the. notices directed to the proper place, and rested his case.
    The defendant then offered to prove all the facts stated, m his second plea, but the court refused to hear the proof; to which refusal the defendant excepts. The defendant then produced a witness, who proved that the plaintiff in this cause had been known to him about four years last past, during all which time he had resided in (this) Hinds county, Mississippi, and that he had considered, and did then consider, him a resident citizen of the State of Mississippi; and the defendant was proceeding to call another witness, Mr. Cook, deputy-marshal, further to prove the same facts, when the testimony was objected to by the attorney of the plaintiff, upon the ground that it could not be heard under the issue now on trial; which objection the court sustained, and excluded all testimony as to proof-of plaintiffs citizenship; to which decision of the court, ruling out said proof that the plaintiff was a citizen of the' State of Mississippi, under said plea of non assumpsit,' the ■ defendant, by attorney, excepts; and thereupon the jury re-

      turned a verdict for the plaintiff; and said exceptions, being found conformable to the facts and the agreement of the parties, are signed, sealed, and ordered, to be made of record in the cause.
    Geobge Adams, [l. s.]

      Judge oftke U. S. for D. Miss.

    Upon this bill of exceptions the case came up to this court,
    It was argued by Mr. Bibb, for the plaintiff in error, no counsel appearing for the defendant in error.

      Mr. Bibb said, that, after the decisions of this court upon the subject-matter of the second plea, as to the meaning of the constitution of Mississippi, he would not argue its sufficiency. But he insisted that the objection made to the evidence offered by the plaintiff, Hundley, of the mere record made out by the said notary, was improperly overruled by the court.
    The notary himself, resident of the town and State wherein the protest was made, and wherein the trial was had, ought to have been introduced to testify; and his certificate of protest of an inland bill, of the same State, wherein the parties all lived, and wherein the trial was had, was not. legal and sufficient evidence. On this point the cases of Townsley v. Sum-rail, 2 Peters, 180, and Chesmer v. Noyes, 2 Campbell’s Rep. 129, are relied on as conclusive.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case is brought up by writ of error directed to the Circuit Court of the United States for the Southern District of Mississippi, .upon a judgment obtained by the defendant in error against the plaintiff for the amount of four notes, dated May 2, . 1835, indorsed by the plaintiff in error to the defendant ; and also for one other note drawn by the former in favor of the latter, dated December 14, 1835.

It appears by the record that three questions of law were raised at the trial, which are now before this court upon the writ of error, the testimony as to the residence of the plaintiff upon the plea of non assumpsit having been properly refused.

The first point relied on as a defence to the action was, that the notes above mentioned were all indorsed an'd delivered by Sims to Hundley in payment for slaves brought by Hundley into the State of Mississippi as merchandise, and. there sold to Sims; and that the sale of slaves so brought into the State was prohibited by the constitution of Mississippi, and the contract therefore illegal and void.

This question was decided in the case of Groves v. Slaughter, 15 Pet. 449, and again in the two cases of Rowan v. Runnels, at the last term, 5 Howard, 134. And it is the settled law in . this court, that contracts of this description, made at the time when these notes bear date, were valid, and not prohibited by the constitution of Mississippi.

The point next in order is presented'by the exception taken to the refusal of the court to continue the case to another term, upon the affidavit filed by the plaintiff in error. But this point, also, has been long settled; and it has always been held in' this court, that the continuance of a cause, or the refusal to continue, rests ,in the sound discretion of the court in which the motion is made, and cannot be reviewed by writ of error.. Marine Ins. Co. of Alexandria v. Hodgson, 6 Cranch, 206, 217, 218.

The remaining point; and the only one. relied on in the argument here, is the exception taken to the admission in evidence of the protest and statement of notices given to the plaintiff in. error, — the said protest, and statement being certified under the notarial seal, and verified by the affidavit Of the notary; This, however, like the two preceding points, has been already decided by this court; and this case cannot be distinguished from the case of Brandon v. Loftus, 4 Howard, 127.

It is true, that, upon general principles of commercial law, thé certificate would not be admissible. But it • is made evidence by the statute of Mississippi, and the rales of evidence prescribed by the statute of a State are always followed by the courts of the United States, when sitting in the State, in commercial cases as well as in others..

The judgment of the Circuit Court is therefore affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby affirmed, with costs and dam-. ages at the rate of six per centum per annum.


text:
    William M. Gwin, late Marshal and Jacob S. Yerger and Robert Hughes, his sureties, Plaintiffs in error, v. C. T. and A. Barton, Defendants in error.
    The decision of this court in the case aRGwin o. Breedlove, 2 How. 29, reviewed and confirmed, viz.: —
    That under a statute of Mississippi, relating to Sheriffs, a summary process against a' marshal might be resorted to, in order to enforce the payment of a debt, interest, and costs, for which he was liable by reason of his default; that the courts of the United States could not enforce the payment of a penalty imposed by the State laws in addition to the money due on the execution; that a marshal and- his sureties could not be proceeded against, jointly, in this summary way, but they must be sued as directed by the act of Congress.
    Any excess of interest awarded over and above the legal rate is a penalty, and comes within the above rule.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi, under the following circumstances.
    - At May term, 1843, viz. on the- *>th of • May, the following notice was filed
    To William M. Gwin, late Marshal of the Southern'District of the State of Mississippi, and Jacob S*- Yerger and Robert Hughes, his securities in his official bond.
    Please take notice that on Wednesdayrthe 24th day of the present month (May), I' will move the Circuit Court of the United States for the Southern District of the State of Missis-r sippi for a judgment against you for the sum of twenty-nine hundred and twenty dollars thirty-nine cents, being the amount [of] the plaintiffs’ money mentioned in the writ of venditioni exponas, issued from said Circuit Court on the 14th day of November, 1840, in our favor, against Robert G. Crozier, Thomas J. Coffee, and -R. S. Hardy, principals, and James J. King and William H. Shelton, securities, for the said sum of twenty-nine hundred and twenty dollars thirty-nine cents, and which said writ commanded the said W. M. Gwiu, then marshal, to expose the property therein specified to sale, to satisfy the money aforesaid, and interest, and costs due on said execution; and which execution or writ of venditioni exponas came to the hands of said Gwin in due time, and upon the same said Gwin voluntarily and without authority omitted to levy the money aforesaid. I will also ask said court- for a judgment for interest on the sum aforesaid, at the rate of thirty per centum per annum, from the first Monday in May, 1840, till paid.
    • You may attend and oppose said motion, if you think proper.
    Your obt. servt.
    C. T. & A. Barton,

      May 5th, 1843.
    By Robt. Hughes, thejr attorney.

      On the 23d of May, the defendants filed a demurrer upon the following grounds, viz.: —
    1. There is no law which authorizes the making of such a motion.
    2. The citizenship of either plaintiffs or defendants is not set out in the motion, or any part of the record in this cause.
    3. If any motion will lie at all in this court against the marshal and his sureties, it must be in the .name of thé United States for the use of the creditor.
    4; The. motion does not set out the bond or obligation of the defendants, or in what capacity, or tó what extent, or upon what kind of. obligation, Hughes and Yerger are Gwin’s sureties.,
    5. The motion does not specify any breach of official duty upon the part of Gwin.
    6. The motion does not show when any breach of official ■duty w&s committed by Gwin, or that the plaintiffs have been damaged thereby, nor to what extent.
    7. The motion does not show or set forth a demand and refusal, upon the part of Gwin, to pay over any money collected by him for plaintiffs.
    8. There are many other causes of demurrer, which will be assigned at the hearing.
    The court below overruled the demurrer, and Gwin and his sureties were allowed to plead over.
    Gwin ..and his sureties put in a plea, “for that heretofore, before the entry of this motion against them, or notice that any such motion would be entered,-suits had been instituted in this honorable court in favor of the United States of America against these defendants upon the official bond of said Gwin as marshal, for breaches of the condition thereof, for sums of money collected by Gwin, as marshal, and not paid over by him, in amount larger than the penalty of the bond ; which suits are still pending , undetermined in said court against these defendants, and judgments upon which cases will satisfy and discharge the penalty of said bond ; and to the rendition of judgment in which cases these defendants are liable.”
    To this plea the plaintiffs demurred, to which there was a joinder.
    The court below sustained the demurrer, with leave to plead over, which the defendants declined; and on proof of the plain- . tiffs, it appeared, to the satisfaction of the court, that on. the 14th November, 1840, a writ of venditioni exponas was issued against Crozier and others, for the sum of $ 2,970.39, by which the marshal was commanded to' sell the property in the writ mentioned, to satisfy the debt, interest, and costs; that said writ came to the hands of the marshal in due time, and upon the same he voluntarily and without authority omitted to levy the money aforesaid, and that payment of the said money, due to the plaintiffs on said execution, was by them, since the return- of the said execution, demanded of Gwin; and it also appearing that Gwin gave an official bond, with Yerger and Hughes, his securities, the court therefore gave judgment against Gwin, Yerger, and Hughes, for the. amount due on the execution, with interest at the rate of 30 per cent, per annum, from the 1st May, 1841, until páid,- and costs of the motion.
    The bill of exceptions set out the proceedings on the motion, the venditioni exponas bond by Gwin and his sureties ; to the reading of which bond the defendants objected, which objection the court overruled, and the defendants excepted.
    The plaintiffs then offered Hughes as a witness, which the defendants objected to, as he was one of the defendants in the motion, which objection the court overruled, and permitted Hughes to be introduced as a witness ; to which the defendants, with the exception of Hughes, excepted.
    Hughes then testified, that he was attorney of the plaintiffs ; that at the return term of the venditioni exponas he went to the office of the marshal, and demanded the money on the same of Mr. Hunt, the office deputy of Gwin. Hunt said the money was not made ; -that the property mentioned in the venditioni. exponas had been sold to William H. Shelton, who had promised to pay the money for it, but had. failed to-do so ; and that he had not the money to pay on said .venditioni exponas ; that he did not want any motion against the marshal, for said money, and wished a. fieri facias on the judgment of the plaintiffs, for-the benefit of the marshal. Hughes also proved that he had called on Gwin and told him he wanted the money; and this being all the evidence on the motion, the court gave judgment against Gwin and his sureties, as, above mentioned. To all which proceedings of the court, as well as the rendition of the judgment, the defendants excepted.
    The causes of error assigned by the counsel for Gwin were that the court below erred in overruling the demurrer on the part of Gwin and his sureties, in sustaining the demurrer of the plaintiffs below, in admitting the bond, in admitting Hughes as a witness, and in rendering the judgment.
    The cause was argued by Mr. Bibb, for the plaintiff in error, and Mr. Johnson, for the defendant in error.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

It appears by the record, that this was a summary proceeding, by motion in the Circuit Court of the United States for the Southern District of Mississippi, against Gwin, late marshal of the District, and Yerger and Hughes, the sureties in his official bond, for the default of the marshal in omitting to levy the money upon a writ of venditioni exponas. This summary process was according to the provisions of a statute of Mississippi regulating proceedings upon executions in the courts of that State, —and which was supposed, it seems, to have been adopted by the courts of the United States, when sitting in the State. The defendants in error recovered a judgment against the marshal and his sureties jointly, in this summary way, for $2,920.30,' with interest at the rate of thirty per cent, per annum from the day on which .the venditioni exponas was returnable.

It is unnecessary at this time to state particularly the provisions of the statute of the State, or to examine how far these provisions can be enforced in a court of .the United States. For the subject was fully considered in the case of Gwin v. Breedlove, 2 How. 29, and the decision in that case is conclusive upon the case before us.

In the case referred to, the court held, that, so far as the statr ute of Mississippi authorized a summary process against the marshal himself to enforce the payment of the debt, interest, and costs,- for which he was liable by reason of his default, it was adopted by the act of Congress of 1828. But that the courts of the United States could not enforce the payment of a penalty imposed by the State law, in addition to the money due on the execution. And in the same case, the court further held, that such summary proceedings against the sureties of a marshal .would be repugnant to the act of Congress of April 10th, 1806 ; and that if the plaintiff in the execution sought to charge the sureties for the default of the marshal, he must proceed' regularly by action, and obtain his judgment in the manner and form pointed out by that law.

The judgment against the .'marshal and his sureties is, therefore, clearly erroneous. And if the proceeding had been against the marshal alone, it could not have been sustained for the excess of interest awarded over and above the legal rate. For this excess is evidently imposed as a penalty for the default.

The judgment must therefore be reversed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, to be proceeded in according to law and justice, and in conformity to the opinion of this court.


author: Mr. Justice McLEAN

text:
    The United States, Plaintiffs, v. James and John G. Daniel, Executors of Beverly Daniel, late U. S. Marshal.
    An action on the case will not lié against the executors of a deceased marshal, where executions had been placed in the hands of the marshal, and false returns made on some of them, and imperfect and insufficient entries on others.
    The rule respecting abatement is thisIf the person charged has received no benefit to himself at the expense of the sufferer, the cause of action does not survive. But where, by means of the offence, property is acquired which benefits the testator, there an action for the value of the property survives against the executor.
    As to the form of action, none will lie, at common law, against an executor, where the general issue plea is “ not guilty.”
    This case came up from 'the Circuit Court of the United States for the District of North Carolina, on a certificate of division in opinion between the judges thereof.
    In August, 1841, the United States brought an action of trespass on tfre case against the defendants, as executors óf Beverly Daniel, late marshal, and at May term, 1843, a verdict was found for the plaintiffs, subject to the opinion of the court upon the following, case stated.
    Beverly Daniel being in his lifetime marshal of the District of North Carolina, certain executions, at the instance of the United States, from the District Court of Newbem, came to the hands of one of the'deputies of the said marshal, who, in the name and on behalf of his principal,, made false returns upon some of them, and imperfect and insufficient entries on others. After the death of Daniel, this action on the case was brought against the defendants, his executors, to recover damages for the said false and insufficient returns; and it is contended, on the part of the defendants, that the action will not lie, .and is not sustainable against them as executors, and it is agreed by the parties that judgment shall be rendered for the plaintiffs upon the said verdict, if the court shall be of opinion that such action is sustainable; otherwise, the said verdict to be set aside, and the said action to be discontinued.
    The judges being divided in opinion, the cause came up to this court, upon a certificate of such division.
    The cause was argued by Mr. Clifford (Attorney-General), on the part of the United States, and submitted on the record by. Mr. Badger, on the part of the defendants.

      Mr. Clifford made two points:^
    1st. That the cause of action survives against the executors.
    2d. That an action on the case is an appropriate remedy under the laws of North Carolina, which furnish the rale of decision on this point.
    1st. The rale respecting abatement' is now nearly confined to that laid down by Buller, Viz. that-where property is concerned; the action does not abate by the death of the party. Cowper, 371.
    The distinction between the cause and the form of action must be borne in mind. The difficulty in this case must have arisen with regard to the form. The record- is very imperfect, and does not show whether the rights of property were involved or not. But they were so in fact, and I will assume it to be so. The testator was certainly liable in his lifetime, and I only contend that the cause of action, survives w^here the estate of the testator has been benefited and is therefore responsible. It must have been understood in this case that thd deputy-marshal had made the money. The bond of the marshal covers the acts of his deputies under the Judiciary.Act, and therefore the law presumes the money to be in the hands of the principal. It makes no difference whether the estate of the marshal has . been benefited in point of fact or in presumption of law. It is equally responsible in both. He has his remedy against the deputy, and the law presumes that he will right himself. I assume; in this case, that the money had been made. An action for'“money had and received” has been sustained. 3 Campbell, 347.
    But an action for an escape does not survive, because the estate has not been benefited. To support these principles, -13 Mass. 454; 9 Wendell, 29; 1 Pick. 71; 4 Halstéd, 173; Com. Dig. tit. Administrator, B. 15.
    The laws of North Carolina furnish the rale of decision whether case will lie (2 How. 29), and these laws sustain the action. 1 Rev. Stat. N. C. 57. This reenacts the law of of 1799. It may be said that the provision in this, which says suits shall not abate, was intended only to apply to suits then brought. But there is no good reason for the exclusion of future suits. 3 Hawks, 563; N. C. Repository, 529, 205, 226; 2 Haywood, 182; 1 Rev. Stat. N. C. page 443, sec. 1, 2, 3.
   Mr. Justice McLEAN

This case is brought here from the District of North Carolina, .pn a certificate , of a division of opinion by the judges, under the act of Congress.

A jury, having been impanelled to try the issues. joined, . found for the plaintiffs, and assessed their damages at seven hundred seventy-five dollars and eighty cents. This verdict was taken by consent of parties, subject to the opinion of the court on the following case.

“ Beverly Daniel, being in his lifetime marshal of the District of North Carolina, certain executions, at the instance of the United States, from the District Court of Newbern, came to the hands of one of the deputies of the said marshal, who, in the name and on behalf of his principal, made false returns upon some of them, and imperfect and insufficient entries on others. After the death of Daniel, this action on the case was brought against the defendants, his executors, to recover damages for the said false and insufficient returns; and it is contended that the action will ñot lie, and is not sustainable against them as executors., and it is agreed by the parties that judgment shall be rendered for the plaintiffs upon the said verdict, if the court shall be of the opinion that such action is sustainable; otherwise, the said verdict to be set aside, and the action-to be discontinued.” And on a motion being made for judgment, the opinions of the judges were opposed on the point reserved.

No action will lie against an executor for a personal wrong by the testator. Com. Dig. Administrator, B. Nor does it lie against the executor of a jailer for an escape. Ibid. Waste does not lie against an executor or administrator; nor an action upon a penal statute. So trover is said not to lie against an executor upon a trover and conversion by, his testator, though a different form of action will lie for the same cause. Cowper, 371.

If the person charged has secured no benefit to himself at the expense of the sufferer, the cause of action is said not to survive; but where, by means of the offence, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor. And it is laid down in Cowper, 376, with respect to the form, that no action survives where the plea of the defendant must be “not guilty,” but where the case survive's, some other form must be pursued.

.If the deputy-marshal, in the misfeasance complained of, received money or property, the marshal being- responsible for such acts, the cause of action survived against his executors. But this is not the case made in the present action. It is an action on the case requiring the general issue of “not guilty.” If a liability were shown against, the deceased marshal, it could not be enforced against his executors in this form. No action, where the plea must be that the testator was not guilty can lie, at common law, against the executor. Upon the face of the record, the action arises ex deUcto ;■ and all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender. 3 Bac. Abr. 539.

The provision in the 10th section óf the North Carolina statute, “to prevent the abatement of suits in'certain cases,” — which declares that an action of trespass on the case, &c., shall not abate by the death of either party, — does not affect the above question.

This court think that the action, in the form prosecuted, is not maintainable; and they direct the fact to be so certified to the Circuit Court.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of North Carolina, and on the point or question on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such cases made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court, that the action in the form prosecuted will not lie. It is thereupon now here ordered and adjudged by this court, that it be so certified to' the said Circuit Court.


author: Mr. Justice CATRON

text:
    Lewis A. Collier, Plaintiff in error, v. Josiah Stanbrough.
    By the laws of Louisiana, debts which are due to a defendant, against whom an execution has issued, may be seized and sold. But they must first be appraised at their cash value, and if two thirds of such appraised value is not bid, the sheriff must adjourn the sale and again advertise the property.
    .This mode of proceeding was adopted by a rule of the Circuit Court of the United States, and was therefore obligatory upon the marshal.
    Where the marshal made a sale of some promissory notes secured by mortgage, without an appraisement, and sold them for less than one third of their amount, the sale was void.
    This case was brought up, by a writ of error, issued under the 2$th section, of the Judiciary Act, from the Supreme Court for the Western District of Louisiana.
    In 1838, David Stanbrough was appointed, by the local authority in Louisiana, curator of the estate of one Harper, deceased.
    In 1840, he was sued as curator, in the Circuit Court of the United States for the Eastern District of Louisiana, by the Fanners’ Bank of Virginia. Judgment was rendered against him, which became final on default.

      On the 6th of February, 1841, Stanbrough, the curator, exposed to sale some property of Harper, the deceased, which was in the inventory taken by the Probate Court of Madison, which court granted the order for a sale. Dougal McCall became the purchaser, for the sum of $ 11,433.66, divided into three payments of $ 3,811.22 each, for which he gave three promissory notes, payable to the order of David Stanbrough, curator, at the Merchants’ Bank of New Orleans, on the 1st of January, 1842, 1843, and 1844. And in order to secure the payment of the notes, he executed a mortgage upon the purchased property.
    At some time subsequent to this, but when the record does not show, a fieri facias was issued upon the judgment which the Farmers’ Bank of Virginia had obtained against Stanbrough, the curator, and a levy was made upon the three notes above mentioned.
    On the 31st of December, 1841, David Stanbrough, the curator, filed a petition, in the nature of a bill in chancery, to the Court of Probates in the Parish of Madison,^praying, amongst other things, for an injunction to restrain the marshal from further proceedings upon the execution.
    On the 10th of March, 1842, the court granted the injunction as prayed for.
    On the 1st of April, 1842, Stanbrough filed a supplemental petition, stating that the parties enjoined continued to advertise the notes for sale, praying that proceedings might be had against the parties for a contempt of court, that the editor of the paper might be enjoined from further publication of the advertisement, and that Dougal McCall might be enjoined from paying the notes to any person except the petitioner. An injunction was .issued accordingly, on the same day.
    This injunction being afterwards dissolved, the marshal pror ceeded to sell, on the 9th of April, 1842, the' property levied upon, being the three notes of McCall given to Stanbrough, the curator. The property was offered for sale and sold to Lewis A.' Collier, the plaintiff in error in the present case. A transfer in writing was made of said property by the marshal to Collier. The seizure of the notes was made" by notifying David Stanbrough, in whose hands they were, that they were thereby seized by virtue of the-execution, but they never came to the corporal possession of the marshal. The transfer was returned to the office of the clerk of the Circuit Court of the United States, and there duly recorded.
    On the 30th of July, 1842, Josiah Stanbrough, the defendant in error in the present suit, filed a petition in the Ninth District Court of the State of Louisiana, stating that the first note of McCall, which became due on the' 4th of January, 1842, had been protested for non-payment; that it had been transferred by the curator, the payee, to one Jesse Stanbrough, and by the said Jesse to him, the petitioner.
    He therefore prayed for an order of seizure and sale of the property mentioned in. the mortgage, for cash enough to pay the note then due, and upon a credit sufficient to meet the other payments as they should' become due in .succession.
    On the same day, an order of seizure and sale was issued in conformity with the prayer of the petition.
    On the 14th of December, 1842, Collier filed a petition in the same court,-viz. the Ninth District Court of the State of Louisiana, in which he recited the facts in the case, and then alleged that Josiah Stanbrough had illegally and fraudulently obtained possession of the note , then due; that- David Stanbrough, the curator, had become leagued with Josiah. Stanbrough to defraud the petitioner and all other creditors of Harper’s estate ; that if. the petitioner wag not the legal owner of the notes, then they were the property of Harper’s estate; that Josiah Stanbrough never gave any value for them; and, finally, praying for an injunction against all parties concerned, which should afterwards be made perpetual.
    An injunction • to stay further proceedings was accordingly issued.
    On the 4th of May,. 1843, Josiah Stanbrough filed his answer, denying all the allegations of the petition, and averring that the property of the succession of Hai-per, whilst administered in -the Probate Court of Louisiana, could not- be legally subjected to any-writ of execution from the federal courts, and claiming twenty per cent, damages.
    Before the cause was tried, the following admission of facts was filed, viz.: —
    Lewis A. Collier v. Josiah Stanbrough.
    Ninth- District Court of the State of Louisiana, for the Parish of Madison.
    The plaintiff in .injunction relies upon the following facts, and he cannot go safely to trial-without the documents necessary to prove them: —■
    1. Some two or three years since, a judgment was obtained in the United States Circuit Court for the Eastern District of Louisiana, against David Stanbrough, as curator of the succession of Jesse Harper, deceased, upon a claim against the succession of said Harper, at. the suit of the Farmers’ -Bank of Yirginia (perhaps the suit is styled “ The President, Directors, and Company of the -Farmers’ Bank of Yirginia v. David Stanbrough, curator of the estate of Jesse Harper ”); all which will appear by the judgment.

      % Some twelve or fifteen months .since, an execution (a fieri facias) issued from said United States Circuit Cotut, at the instance of the plaintiff in said suit, and under said execution a, levy was made on the three notes mentioned in the petition of the plaintiff in injunction; and, after due advertisement, the property was offered for sale, and was sold to Lewis A. Collier, the plaintiff in injunction, and a transfer, in writing, was made of said property, by the marshal, to said Collier. . The seizure of the notes relied on was made by notifying David Stanbrough, in whose hands they were, that they were thereby seized by virtue of said execution, but they never .came to the corporal possession of the marshal; all which will, appear by the execution, the return of the marshal thereon, and the conveyance of the marshal to Collier as aforesaid:
    3. Said transfer was returned to the ^office of the clerk of said United States court; and there duly recorded.
    The statement of facts, on which the plaintiff in injunction reliés, as mentioned above, and which facts are hereinbefore enumerated, is admitted by the defendant in injunction to be true.
    Bemiss, J. Dunlap, B. M. Bbawdeb,
    ■ Attorneys for Defendants.

    The plaintiff in injunction admits that the notes in eontro-. versy were never appraised, and that the sale was made without appraisement, and that the notes in question belonged to the succession of said Harper, which said succession, at the time the said seizure was made, in maimer stated above, was in due course of administration in the Probate Cotut of the Parish of Madison.
    R. C. Stockton, Atfy for Collier.

    The following facts were also admitted, viz.: —
    Admitted, that Lewis A. Collier is a creditor of Jesse Harper’s estate, and that for two years, at least, the said succession has been insolvent.
    Admitted, that the judgment in the case of the Farmers’ Bank of Virginia against David Stanbrough, curator of the succession of Jesse Harper, deceased, rendered in the-United States Circuit Court of the Eastern District of the State-of Louisiana, was made final on default.
    Admitted, that David Stanbrough is now, and has been,-curator of the succession of Jesse' Harper, deceased, ever since the . 1st day of January,1840v
    Admitted, that David and Jesse Stanbrough are brothers, and Josiah Stanbrough is. the son of Jesse; that they all live within some three or four miles of each other; that Jesse Stanbrough is security for David on his curator’s bond1, as curator of Harper’s estate.
    Admitted, that' in the estate of Harper there was an inventory taken by the Probate Court of Madison of said succession of Harper, an order of sale, and sale of the property of Harper’s estate, and the notes in dispute are of the proceeds of sale; that all those proceedings took place by order of the Probate Court.
    It is admitted, that there is no order on the records of the Court of Probates ordering the estate of Jesse Harper to be insolvent.
    Admitted, that Mr. Stockton, a creditor for $ 1,000, has never received from the estate of Jesse Harper but $ 250.
    On the 16th of May,. 1843, the court made the following decree:—
    “ By reason of the law and the evidence being in favor of the defendant, Josiah Stanbrough, it is ordered, adjudged, and decreed, that the injunction sued out in this case be dissolved; and it is further decreed, that the defendant recover of the said plaintiff, Lewis A. Collier, and his surety, Archibald Matthews, in solido, the sum of four hundred and twenty-seven dollars damages, being ten per cent, upon the amount of said defendant’s claim, w;hen enjoined, and that said plaintiif pay the costs of this suit to be taxed.”
    From this-decree an- appeal was had to the Supreme Court of the State, which-affirmed-the judgment of the District Court, with costs.-'. "
    A .writ"of error was sued out to bring the case up to this court, and the following assignment of errors filed.
    “Plaintiff assigns for cause, for which the judgment of the' honorable theNupreme Court of Louisiana ought to be reversed by the honorable fhe Supreme Court of the United States, and a judgment -rendered in his favor, as prayed for in his original petition, as follows, to wit ■: —
    “ 1. The decision of the Supreme Court of Louisiana denies to the Circuit Court of the United States for the State of Louisiana the power to execute judgments rightfully rendered by said Circuit Court against the representative of a succession, by proceeding to sell the property of the same, by a writ of fieri facias, or otherwise.
    “2.- The Supreme Court of Louisiana erred in assuming authority to inquire into the validity of a judgment or execution from the said Circuit Court, or the manner in which said execution was proceeded on, the constitution and laws of the United States guarantying and conferring on said Circuit Court the power to take cognizance of such cases as that whereon execution issued (to wit, the case of the ‘ Farmers’ Bank of Virginia®. David Stanbrough, curator,’ &c.), which necessarily includes the power to execute judgments so rendered.
    . “3. The Supreme Court of Louisiana erred in sustaining the law of that State which requires money demands against a succession to be prosecuted exclusively in the Probate Court, which law, the plaintiff avers, contravenes the constitution and laws of the United States; so far as it requires foreign creditors to prosecute their demands as aforesaid in said State court only is, therefore, so far null and void.
    “ 4. The judgment aforesaid of the Supreme Court of Louisiana is, for other reasons, illegal and erroneous, and ought to be reversed.”
    The cause was argued by Mr. Bibb, for the plaintiff in error, and by Stockton Steele . and Mr. Henderson (in a printed argument), upon the same side. No counsel appeared for the defendant in error. The following points were made and argued by the counsel for the plaintiff in error.
    1. The decision of the Supreme. Court of Louisiana denies to the Circuit Court of the United States for the State of Louisiana the power to execute judgments rightfully rendered by said Circuit Court against the representative of a succession, by proceeding to sell the property of the same by a writ of fieri facias, or otherwise.
    2. The Supreme Court of Louisiana erred in deciding that a judgment of the Circuit Court of the United States must be presented to the Probate Court of Louisiana for classification, and that said judgment of the Circuit Court was a mere recognition that the deceased owed the plaintiff on said judgment the sum therein adjudged to him, and . thus forcing a foreign creditor into a State tribunal to settle the question of the rank which his claim shall hold.
    3: The Supreme Court of Louisiana erred in assuming authority to inquire into the validity of a judgment or execution from the said Circuit Court, or the manner in which said execution was proceeded on, the constitution and laws of the United States guarantying and conferring on said Circuit Court the power to take cognizance of such cases as that whereon execution issued (to wit, the case of the “Fanners’ Bank of Virginia ®. David Stanbrough, curator,” &c.), which necessarily ■includes the power to execute judgments so rendered.
    4. The Supreme Court, of Louisiana erred in sustaining the law of that State which requires money demands against a succession to be prosecuted exclusively in the Probate Court; which law, the plaintiff avers, contravenes the constitution and laws of the United States; so far as it requires foreign creditors to prosecute their demands as aforesaid in said State court only is, therefore, so far null and void.
    5. The judgment aforesaid of the Supreme Court of Louisiana is, for other reasons, illegal and erroneous, and ought to be reversed.
    But as the Court avoided a decision upon these important points, resting it upon one which was in some measure collateral,- it is deemed proper to omit the arguments of counsel.
   Mr. Justice CATRON

delivered the opinion of the court.

Lewis A. Collier filed his petition in the District Court held for the Parish, of Madison, in the State of Louisiana, against Josiah Stanbrough and others, alleging that the Farmers’ Bank of Yirginia had recovered a judgment in the Circuit Court of the United States for the Eastern District in that State, against.David Stanbrough, as curator of the succession of Jesse Harper''; that an execution issued on the judgment, by which the marshal seized a debt belonging to the succession, due 'from Dougal McCall, evidenced by three notes of hand, and by a mortgage on land, securing the payment to be made to David Stanbrough, the curator; that the debt, amounting to 11,433 dollars, was seized and sold by the marshal, and said Collier became the purchaser, for the sum of 3,500 dollars, &c.

It is also alleged, that a fictitious indorsement had been made on one of the notes by the curator to Josiah Stanbrough, which the petition prays may be annulled, and that the. petitioner may have the benefit of his purchase by. judgment and execution on the notes and mortgaged property.

The defendants answered, and insisted that the debt was not legally seized or levied upon; and, secondly, that it was not legally appraised or advertised, as required by law.

The facts were agreed, and it was admitted that the notes, in controversy were never appraised, and that the marshal sold them to Collier at a cash sale on the first biddings..

In the District Court, the law was adjudged to be for the defendants, and Collier’s petition was dismissed; and from this judgment he appealed to the Supreme Court of Louisiana, where the judgment was affirmed; and to' reverse this latter judgment, the plaintiff prosecuted' a writ- of error from this court to bring up the record; and this he had a right to do, as his claim, of title was founded on an authority exercised under the United States,” which, the judgment below drew in question, and the decision was against its validity.

• The only question submitted for our consideration is whether the marshal’s sale .was void, or. .valid.

The Supreme Court of Louisiana declared, in its opinion found in the record, and preceding the judgment, “ that a creditor" residing ip another State cannot issue an execution upon the judgment' which he has obtained in the federal court against the executor or administrator of an estate, which is admitted in the Court of Probates as insolvent, and take the property out of the hands of such executor or administrator, and leave nothing for the other creditors,” — adding, that, as it was one of the admitted facts that .Harper’s estate had been insolvent [for several years before the seizure and sale were made, they were consecprently void.

But as this case has been argued here by counsel for the plaintiff, Collier, only, no one appearing for the defendant in error, we deem it proper to forbear touching the delicate question on which the Supreme Court of Louisiana founded its judgment of affirmance. Its great importance in different States, and the difficulties attending it on either hand, because of the conflicts it is likely to produce between the tribunals of the State and the federal courts, strongly impress this court with the propriety of leaving the question open and uninfluenced by the present opinion, as no necessity exists for such a decision in this case. The judgment of the State court pronounced the seizure and sale on the federal execution void; this judgment we are called on to revise, and if we find that it was proper, for the reasons given by the court below, or on other grounds manifestly appearing of record, and equally calling into exercise the jurisdiction of this court, it is our duty to affirm it; and we are of opinion that the judgment of the State court was proper, on another ground.

In Louisiana, the debts due to a,n execution debtor may be seized and sold on execution, like other movable property, and equally with the immovable property; in respect to lands seized on execution, it is necessary, before they are offered for sale, that they should be appraised by persons appointed for the purpose, and if, when offered at public sale, two thirds of the appraised value is not bid, the officer who is attempting to sell shall not adjudicate the sale, but cease, and readvertise the property, and again offer it at public outcry on a credit of twelve months; and this mode of proceeding, having been adopted by rule in the Circuit Court of the United States held in Louisiana, governs the marshal of that court. Whether movable property was entitled to the benefit of the. provision seems not to have been definitively settled until 1845, in the .case of Phelps v. Rightor and others (9 Robinson’s Rep. 541), when it was adjudged by the Supreme Court of Louisiana, that movable property (of the same description that is here in controversy) could not be legally sold by a sheriff in virtue of an execution, without having been first appraised at its cash value, and that then the cash bid on the first offer must be equal, at least, to two thirds of the appraised value; and for want of such an appraisement and bid, the adjudication of a cash sale on the first offer to sell was void, for want of power in the officer. And it is proper to remark, that, in the case of Gantly v. Ewing (3 Howard, 707), this court declared a similar principle to apply in a case arising under a law of Indiana, which provided that the fee simple of real estate should not be sold, until the sheriff had, at the time and place of sale, first offered the rents and profits of the land for a term of seven years at public outcry, and if no bid was had for the rents and profits sufficient to satisfy <the execution, then the sheriff should proceed to sell the fee. In that case the sheriff had proceeded to sell the fee-simple estate without first offering the rents and profits for the seven years’ term, and this court held . that the' sale was void, for want of power in the sheriff to make it before he coir plied with the previous step, forasmuch as the power to sell the fee simple arose for want of a bid for the term. In principle, that'case and the one under consideration cannot be distinguished. In each it was immaterial whether the purchaser had or had not knowledge of the fact, that the officer had not taken the first step, as on that step the power to sell first arose. In this case, no appraisement was had, and the debt on the first bidding was struck off to Collier, for less than one third of the amount called for by the three notes and the mortgage to secure them; and these facts being admitted on the record, it follows that the sale was void, and that the judgment of the Supreme Court of Louisiana must be affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Louisiana, 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.