surers, when they are not distant from [*402 the scene of stranding, can, by the earliest use of the ordinary means to convey intelligence, be informed of the situation of the vessel in time to direct the master before she will probably be lost. If there is a probability of loss, and it is made more hazardous by every day's delay, the master may then act promptly to save something for the benefit of all concerned

ants; for though the necessity, information, 401] and good faith *of the master will make a sale legal, the term "legal" is not descriptive of the prerequisite upon which the master's right to sell depends. Nor can the necessity for a sale be denied, when the peril, in the opinions of those capable of forming a judgment, make a loss probable; though the vessel may in a short time afterwards be got off and put afloat. It is true the opinion or judgment of-though but little may be saved. There is no competent persons may be falsified by the event, and that their judgment may be shown to have been erroneous by the better knowledge of other persons, showing it was probable the vessel could have been extricated from her peril, without great injury or incurring great expense; and the master's incompetency to form a judgment or to act with a proper discretion in the case, may be shown. But from the mere fact of the vessel having been extricated from her peril, no presumption can be raised of the master's incompetency, or of that of his advisers. It is right, also, to test the peril in which the vessel may be, by information of the locality where she is stranded, by the season of the year and by a comparison of the number of vessels lost or saved, which have been driven on the same beach or shoal. But in doing so, though it shall be found that a larger number of vessels stranded have been got off than were lost on the same beach; it is very difficult in a case of stranding upon a shifting beach of sand, with the wind blowing hard on shore, and in a month when the winds are usually strong and stormy, to disprove the necessity for the master to sell, by what may have happened in other cases. The evidence taken in this case establishes that five to one of the vessels stranded where the Sarah Ann was driven on the beach, have been altogether lost. The evidence in such a case, and under such proof of the loss of vessels there, must be very strong before it can prevail to show that there was no necessity for the master to sell. It must also be proved, in a particular case given, that the means in the master's power, or which he may command from those to get his vessel off, had not been applied, and that there would have been what we shall call, and what ought to be so esteemed, a controlling difference between the value of the vessel, as her condition may be when she is old, and the expense to be incurred in getting her off. Nor will any as certainment of the cost of repairs subsequent to the extrication of the vessel, raise a presumption against the necessity to sell, whatever may be her condition as to strength, and though she may not be injured in the hull, if the actual and immediate prospective danger menaces a probable total loss. We think such was the Sarah Ann's danger.

way of doing so more effectual than by exposing the vessel to sale, by which the enterprise of such men is brought into competition as are accustomed to encounter such risks, and who know from experience how to estimate the probable profits and losses of such adventures. And we here say that the power of the master to sell the hull of his stranded vessel exists also as to her rigging and sails, which he may have stripped from her, after unsuccessful efforts to get her afloat; or when his vessel, in his own judgment, and that of others competent to form an opinion and to advise, cannot be delivered from her peril. The presumption is that they are injured; they can never again be applied to the use of the vessel, and they must, ordinarily, become from day to day of less value. In fact, they are a part of the vessel when stripped from her, and the mere act of separation by the vigilance and effort of the master, by which they are saved from the ocean, does not take them out of his implied power to sell in a case of necessity. The necessity does not, as has been supposed, mean that no part of her tackle, apparel, or furniture saved shall be sold, because they are no longer liable to loss; but when they are saved, whether a sound discretion does not require them to be sold for the benefit of all concerned. If, however, the master sells without good faith, or without a sound discretion, the owners may, against the purchaser, assert their right of property in the sails and rigging; as they may in any case of a stranded vessel which has been sold without good faith in the master, with her sails and rigging standing. We do not think the case of Scull v. Briddle, 2 Wash. C. C. Rep. 150, notwithstanding our respect for the memory of the eminent judge who made it, sound law. It is expressed in terms too broad. The mischievous consequences apprehended may be trolled in each case by such proof as we are obliged to depend upon to maintain and secure from abuse other interests, equally important to society in general as to individuals engaged in some particular pursuit. We think the interest of owners of vessels in cases of a sale by the master, when pressed to make it by necessity arising from the perils of the sea, is amply protected; and that the power of the master to sell is secured from abuse by the limitations placed upon the exercise of it, and The court, then, having stated its opinion as by the obligation of the purchaser at the sale to to what makes an extreme necessity, it follows maintain his ownership against the claim of that it cannot be laid down as an universal rule the original owner, by showing that the necesthat the master's power to sell is limited to sity for a sale had arisen; that it was made in cases of extreme necessity in a foreign port, or the good faith and sound discretion of the in a port of the United States of a different master. This certainly in the case of such State than that to which the vessel belongs, or sales, at home, gives to the owners of a strandin which her owners may be or reside when the ed vessel a stronger guard against imposition necessity occurs. The true criterion for deter- and fraud than they can have in sales made in mining the occurrence of the master's authority | a foreign port, and serves to support the corto sell, is the inquiry whether the owners or in- rectness of the opinion that the mas- [*403

con

ter's power to sell is not confined to a foreign port, or to a stranding in another State. This doctrine holds out no encouragement to the master to sell: it gives him no facility to sell, when it is not authorized by necessity, clearly made out, and exercised with good faith and sound discretion.

uit Court of the United States for the Eastrn District of Louisiana.

Mr. Jones, for petitioner, stated that William W. Whitney and Myra Clarke Whitney had filed a bill in the District Court of the United States for the Eastern District of Louisiana, which was afterwards transferred to the CirWe have decided the two points in the case cuit Court. The complainant, William W. necessary to a right decision of it. It is un-Whitney, having died pendente lite, the suit necessary for the court to examine other points argued by counsel, though they are in the record, and which it would have been necessary for the court to consider, if the respond ent's rights under the sale had not been established by the points decided.

We think the facts in the case, which will appear in the report of the case made by the reporter, show that the master of the Šarah Ann was in that necessity, from her stranding and daily probable loss, to make it proper for him to sell her hull, sails, and rigging for the benefit of all concerned: that the sale was made upon the information and advice of competent judges, aiding his own judgment, and that it was made in good faith and in the exercise of a sound discretion.

The decree of the Circuit Court is therefore affirmed.

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 Massachusetts, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed with costs.

404*] *Ex-parte MYRA CLARKE WHITNEY. Mandamus not proper remedy for errors of district judge in exercise of his authority. The district judge of the eastern district of Louisiana, while holding a circuit court, ordered proceedings on a bill in equity to be in conformity with the rules of the courts of Louisiana, thus disregarding the rules for proceedings in the circuit courts of the United States in cases in chancery, prescribed and ordered by the Supreme Court of the United States. It was also declared that the practice and proceedings in all civil causes, those of admiralty alone excepted, should be conformable to the provisions of the Code of Practice of Louisiana, and of the acts of the Legislature of the State. Under this order, and by the course of the court, the proceedings on the bill in equity were suspended and prevented. A motion was made for a mandamus to the Circuit Court, in the nature of a writ of procedendo, to compel the court to proceed in the cause according to the rules of practice prescribed to the courts of equity of the United States, etc., to award attachments, etc., and in all things, to proceed in the cause in such manner as the Constitution and laws of the United States and the principles and usages in equity will authorize. Held, that this is not a case in which a mandamus will lie. The appropriate redress, if any, is to be obtained, after the final decision shall be had on the cause, by appeal.

A writ of mandamus is not the appropriate remedy for any errors which may be made in a cause, by a judge in the exercise of his authority, although they may seem to bear harshly or oppressively on the party. The remedy in such cases must be sought in some other form.

R. JONES presented a petition, and moved

was continued in the name of his widow, Myra Clarke Whitney.

are

The subpoena issued on the bill was served on a number of defendants, and among them on Relf and Chew. The object of the bill is to recover property devised to the complainant by a will of Daniel Clarke, in which the complainant, his only child, and heir-at-law, was his general legatee; and Relf and Chew charged in the bill with having fraudulently concealed and suppressed this will, and having set up a prior and revoked will, in which they are named executors, with plenary powers of disposal and sale over the real estate of the testator; and they had disposed of the immense estate, under color of their office and authority, as executors and testamentary legatees; whilst the complainant for a time, an infant of tender years, was in ignorance of his parentage and true name, and of his rights. The other defendants are charged with combining with Chew and Relf, and with having purchased, and withholding parts of the estate of Daniel Clarke, under sales by Chew and Relf.

The bill he stated set out a case for the relief

of a court of equity, seeking special [*405 and general relief, according to the principles and course of procedure of a court of equity. A copy of the bill for each and every of the defendants, about fifty in number, was served with the subpœnas.

On the 20th February, 1837 (about two months after the subpoenas were returned, served), the two executors, with twenty-five of their co-defendants, appeared by their respective solicitors, and filed a petition, wherein, styling themselves respondents, eleven of them say French is their "mother tongue;" not that they do not understand English as well, and pray, as a precedent condition to their being held to plead, answer, or demur to the bill, that a copy, in their "maternal language," be served on each and every of them, severally, over and above the English copies already served. Then, "all the aforesaid respondents (including, of course, the two executors), here appearing separately by their respective solicitors, crave oyer" of all the instruments and papers of every sort mentioned in the bill; but "if it be not possible for said complainants to afford these respondents oyer of the originals of said supposed instruments, they then pray that copies of the same, duly certified according to the laws of the State of Louisiana, may, by order of this honorable court, to said complainants, be filed herein, and served on these respondents, that they may be enabled to take The respondents, proper cognizance thereof." more especially, crave oyer of twenty-three of these instruments enumerated and specified in a list, referring to the several clauses of the

MR.the Nut a mandamus in the nature of bill where they are respectively mentioned.

a writ of procedendo, to be directed to the Cir

The late Judge Harper, formerly judge of

the District Court of the United States for the | on application to the judge was refused perEastern District of Louisiana, "decreed that mission. the application of the defendants for oyer of the documents and for copies of the bill in the manner prayed for, be granted;" and he ordered "that all the future proceedings in the case shall be in conformity with the existing practice of the District Court."

The petitioner, by Mr. Jones, her counsel, stated that the order so granting the prayers of the petition, in extenso, has ever since stood a bar against the entrance of the complainant beyond the threshold of justice; the regular progress of the cause to issue has been arrested, and a hearing indefinitely delayed, unless the precedent condition, thus arbitrarily and illegally imposed, of a compliance with all and singular the requisitions of the respondents in their petition, be fulfilled to the last tittle.

As if this were not a sufficiently distinct and emphatic renunciation of the jurisdiction, as well as of the forms and modes of proceeding appropriate to courts of equity, the further order, determining "all future proceedings in the case," is completely tantamount to an unqualified conversion of the case into a suit at law; since "the existing practice" referred to, is no other than a set of rules exclusively adapted to "suits at law as contradistinguished from equity causes."

Judge Lawrence, at the same term of the Circuit Court, upon his sole authority, in the absence of the circuit judge, undertook to prescribe rules of practice for that court; and this he did very compendiously, by a general order "that the mode of proceeding in all civil causes (those of admiralty alone excepted) shall be conformable to the provisions of the Code of Practice of Louisiana, and of the acts of the Legislature of that State, heretofore passed amendatory thereto."

The counsel for the petitioner further alleged

court, redress at once of the private and the public wrong, by the vindication and [*407 maintenance of the cause of public justice violated, as it is, in her person.

Mr. Jones further contended, in support of the motion, that if this court have an appellate jurisdiction over the proceedings of the Circuit Court of Louisiana, they may interpose by a mandamus to have done what the court has a right to correct by a writ of mandamus. This may be done in a case pending, although the court will not originate a case by a mandamus. Cited, Marbury v. Madison, 1 Cranch.

That the burdensome and oppressive exactions put forth by the respondents in their petition could have had no other design or tendency but to evade the suit and its legitimate consequences, and to wear out and weigh down the complainant by mere vexation and chicanery, too thinly veiled behind frivolous pretexts, is quite apparent. That both the district and circuit courts, enforcing those exactions, have flown in the face, and abnegated the authority of the supreme tribunal expressly appointed by law to regulate their action and control their judgments, is plain and palpable. As little can the double result be questioned, of a manifest impediment to the course of public justice, The death of Judge Harper occurred between coupled with wrong and oppression to the inthe time of passing this order and the then en-dividual who now claims, at the hands of this suing May Term, 1837, of this court; so that no opportunity was presented of bringing the prac406*] tical effect *and operation of his order to the test of any motion before him to enforce the course of procedure prescribed by this court, upon the failure of the defendants to answer within three months after return of subpoenas served. But that test was presented to his successor, Judge Lawrence, at that term, when the time allowed for answers had expired more than two months, without any plea, answer or demurrer from any of the defendants, and when the option of one of the three modes prescribed by this court as aforesaid, was complete in the complainants, and the right to exercise it absolute. The complainant, then, by way of experiment, moved for an attachment for answer against the said Richard Relf, one of the defendants returned duly summoned, which motion the judge virtually overruled; that is, he refused to pass any order, or take the least nouice of it during that term. Before the next ensuing session of the District Court, its jurisdiction as a circuit court was taken away; and, together with all the causes then pending within the sphere of that jurisdiction, was transferred to the new created Circuit Court for the same district. At the first session of that court, held by Judge Lawrence alone, in the absence of the circuit judge, the motion for attachment was again pressed; and the judge not only refused to grant it, but resisted repeated applications from the complainant's solicitor to have the motion and his refusal of it recorded among the proceedings of the court; he refused to permit any notice whatever to be taken of the matter in the minutes or proceedings of the court. The clerk thought it his official duty, sua sponte, to make the proper entries in his minutes of the proceedings, but

|

This court will proceed by a mandamus, when it is necessary to interpose for the exercise of the appellate power of the court, and when there are no other remedies. The issue of a writ of habeas corpus is on the ground that in no other manner in the case could the appellate power of the court be exercised.

The act of Congress refers to the usages which are derived from the common law, and at common law a mandamus lies to enforce judicial acts, and to correct judicial errors in inferior courts.

A mandamus and a writ of procedendo differ very little, and are both to enforce the proceedings of courts. Cited, 3 Black Com. 109; 5 Comyn's Dig. 91. As to the difference between judicial and ministerial acts by a court, the counsel cited 5 Comyn's Dig. 34; 5 Term Rep. 549.

There is an obvious necessity for a remedy in this case. The proceedings of the Circuit Court of Louisiana are entirely suspended; and by a palpable and flagrant violation of the rules of the court in chancery cases, as prescribed by this court, and to which the Circuit Court of Louisiana is bound to conform, the appellate power of the court is defeated.

The case is

kept from the final decision of this court by the entire disregard of his duties by the judge of the Circuit Court, and of rules which he is bound to enforce.

Mr. Justice Story delivered the opinion of the

court:

of equity. On consideration of the motion made in this cause by Mr. Jones, on a prior day of the present term of this court, to wit, on Saturday, the 26th day of January last, and of the argument of counsel thereupon had, it is nowhere ordered, adjudged and decreed by this court, that the said motion be, and the same is hereby overruled.

SON, Plaintiffs in Error,

V.

CHARLES H. HALL, Defendant in Error. Creditors of deceased surveyor no claim on sum paid to his legal representatives by United States, he having no legal claim for such sum.

This is the case of a motion made on behalf of Myra Clarke Whitney, for a mandamus to the Circuit Court of the Eastern District of Louisiana. The petition on which the motion THE HEIRS OF WILLIAM EMER- [*409 is founded states that a bill in equity is now pending in the said Circuit Court, in which the petitioner is plaintiff, against Richard Relf and others, defendants; that it is understood to be the settled determination of the district judge not to suffer chancery practice to prevail in the Circuit Court; that her right to proceed in her suit has been denied until she shall cause copies of her bill in the French language to be served upon the defendants or some of them, and until she shall file documents, which are not made exhibits in the cause, and then that all further proceedings in the cause shall be in conformity with the existing practice of the court, which existing practice is understood to mean the practice prevailing in the court in civil cases generally, in disregard of the rules established by the Supreme Court to be observed in chancery cases. The prayer of the petition is for a mandamus in the nature of a writ of proceden408*] do, to compel the *court to proceed according to chancery practice, to award an attachment, and compel Relf to answer her bill, and to suffer the petitioner in all things to proceed in the cause in such manner as the Constitution and laws of the United States, and the principles and usages in equity will authorize. A copy of the bill, and the orders and proceedings of the district judge thereon, are presented with the petition.

That it is the duty of the Circuit Court to proceed in this suit according to the rules prescribed by the Supreme Court for proceedings in equity causes at the February Term thereof, A. D. 1822, can admit of no doubt. That the proceedings of the district judge, and the orders made by him in the cause, which are complained of, are not in conformity with those rules, and with chancery practice, can admit of as little doubt. But the question before us is not as to the regularity and propriety of those proceedings, but whether the case before us is one in which a mandamus ought to issue. And we are of opinion that it is not such a case. The district judge is proceeding in the cause, however irregular that proceeding may be deemed; and the appropriate redress, if any, is to be obtained by an appeal after the final decree shall be had in the cause. A writ of mandamus is not the appropriate remedy for any orders which may be made in a cause by a judge in the exercise of his authority; although

lation of the laws of the United States prohibiting The Josefa Segunda was condemned for a vio the slave trade: and by a decree, the District Court of Louisiana allowed the claim of the collector, the for the forfeiture, to a portion of the proceeds of surveyor, and naval officer, who had prosecuted the sale of the property condemned. This decree was afterwards reversed, and the whole proceeds adjudged to the United States, on an appeal to the Supreme Court. William Emerson, the surveyor, afterwards died; and in 1831 Congress passed an act for the relief of the collector, the heirs of William Emerson, and the heirs of the naval officer; under the authority of which the sums which had been adjudged to those officers, and which had reby an order of the court paid to them according to mained in the District Court of Louisiana, were the provisions of the law. One of the creditors of William Emerson claimed the sum so paid to his legal representatives, as assets for the payment of his debt. Held, that the payment made by order of the District Court, to the minor children of William Emerson, as his legal heirs, was rightfully made, and that the same cannot be considered in their hands as assets for the payment of the debts of their father.

The prosecution of The Josefa Segunda by the officers of the customs of Louisiana, was not done under the authority of any law, or by any authority; and these acts impose no obligation, either in law or equity, on the government to compensate them. The claim for those services could not have been set up either as an equitable or a legal offset to any demand of the government against them, or either of them; while, under the rules of law, any specific demand on the government which imposed on it even an equitable obligation, might be set up as an offset.

Services rendered under the requirements of law, or of contract, for which a compensation is fixed, constitute a legal demand on the government. Services rendered under an authority which is casual, or in some degree discretionary, may constitute an equitable claim. No individual can be made a debtor against his will. Voluntary benefits may be conferred on him which may excite his gratitude or which in the exercise of his generosity he may suitably reward. But this depends on his own volition. It would constitute à singular item under the law of assets, to raise a charge against an individual for a benefit conferred by some voluntary act of kindness. The rule is the same, whether the benefit be conferred on the government or an individual.

A claim against a foreign government for spoliation is not of this character. The demand in such

a case is founded on the law of nations, and the obligation is perfect on the offending government.

they may seem to bear harshly or oppressive-IN ERROR from the Supreme Court of the

ly upon the party. The remedy in such cases must be sought in some other form.

The motion for the mandamus is therefore

denied.

On petition for a mandamus or for a rule to show cause why such writ should not issue requiring the judges of the ninth judicial circuit to proceed in this cause, according to the rules

Eastern District of Louisiana.

In 1829, Charles H. Hall, residing in New bates of the City and Parish of New Orleans, York, presented a petition to the Court of Prostating that the estate of William Emerson, deceased, was indebted to him in the sum of seventeen hundred dollars and upwards with interest; and he prayed the court, that Charles Byrne, the tutor and curator of the children of

William Emerson, should be decreed to allow | States, and made no part of the personal assets the debt, and to pay the same.

The question for the decision of the court was whether the money received by the minor children, as the legal representatives of Wil-custom-house officers who made the seizure, liam Emerson, by virtue of the Act of Congress of the 3d of March, 1831, could be made liable for the payment of the debts of their father.