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ants; for though the necessity, information, 1 surers, when they are not distant *from [*402 401"] and good faith of the master will make the scene of stranding, can, by the earliest use a sale legal, the term “legal” is not descriptive of the ordinary means to convey intelligence, of the prerequisite upon which the master's be informed of the situation of the vessel in right to sell depends. Nor can the necessity for time to direct the master before she will proba sale be denied, when the peril, in the opin-ably be lost. If there is a probability of loss, ions of those capable of forming a judgment, and it is made more hazardous by every day's make a loss probable; though the vessel may in delay, the master may then act promptly to a short time afterwards be got off and put save something for the benefit of all concerned 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 way of doing so more effectual than by exposevent, and that their judgment may be shown ing the vessel to sale, by which the enterprise to have been erroneous by the better knowledge of such men is brought into competition as are of other persons, showing it was probable the accustomed to encounter such risks, and who vessel could have been extricated from her know from experience how to estimate the peril, without great injury or incurring great probable profits and losses of such adventures. expense; and the master's incompetency to And we here say that the power of the master form a judgment or to act with a proper dis- to sell the hull of his stranded vessel exists also cretion in the case, may be shown. But from as to her rigging and sails, which he may have the mere fact of the vessel having been ex- stripped from her, after unsuccessful efforts to tricated from her peril, no presumption can get her afloat; or when his vessel, in his own be raised of the master's incompetency, or of judgment, and that of others competent to form that of his advisers. It is right, also, to test an opinion and to advise, cannot be delivered the peril in which the vessel may be, by in. from her peril. The presumption is that they formation of the locality where she is strand- are injured; they can never again be applied to ed, by the season of the year and by a com- the use of the vessel, and they must, ordinarily, parison of the number of vessels lost or saved, become from day to day of less value. In fact, which have been driven on the same beach or they are a part of the vessel when stripped shoal, But in doing so, though it shall be from her, and the mere act of separation by the found that a larger number of vessels stranded vigilance and effort of the master, by which have been got off than were lost

on the they are saved from the ocean, does not take same beach; it is very difficult in a case of them out of his implied power to sell in a case stranding upon a shifting beach of sand, with of necessity. The necessity does not, as has the wind blowing hard on shore, and in a been supposed, mean that no part of her tackle, month when the winds are usually strong and apparel, or furniture saved shall be sold, bestormy, to disprove the necessity for the mas- cause they are no longer liable to loss; but ter to sell, by what may have happened in when they are saved, whether a sound discreother cases. The evidence taken in this case tion does not require them to be sold for the establishes that five to one of the vessels benefit of all concerned. If, however, the mas. stranded where the Sarah Ann was driven on ter sells without good faith, or without a sound the beach, have been altogether lost. The evi. discretion, the owners may, against the purdence in such a case, and under such proof of chaser, assert their right of property in the the loss of vessels there, must be very strong sails and rigging; as they may in any case of a before it can prevail to show that there was no stranded vessel which has been sold without necessity for the master to sell. It must also good faith in the master, with her sails and be proved, in a particular case given, that the rigging standing. We do not think the case of means in the master's power, or which he Scull v. Briddle, 2 Wash. C. C. Rep. 150, notmay command from those to get his vessel off, withstanding our respect for the memory of had not been applied, and that there would the eminent judge who made it, sound law. It have been what we shall call, and what ought is expressed in terms too broad. The mischiev. to be so esteemed, a controlling difference be- ous consequences apprehended may be contween the value of the vessel, as her condition trolled in each case by such proof as we are may be when she is old, and the expense to be obliged to depend upon to maintain and secure incurred in getting her off. Nor will any as- from abuse other interests, equally important certainment of the cost of repairs subsequent to society in general as to individuals engaged to the extrication of the vessel, raise a pre. in some particular pursuit. We think the insumption against the necessity to sell, whatever terest of owners of vessels in cases of a sale may be her condition to strength, and by the master, when pressed to make it by though she may not be injured in the hull, if necessity arising from the perils of the sea, is the actual and immediate prospective danger amply protected; and that the power of the menaces a probable total loss. We think such master to sell is secured froin abuse by the was the Sarah Ann's danger.

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 neces. that 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 hoine, gives to the owners of a strand. in which her owners may be or reside when the ed vessel a stronger guard against innposition 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 cor. to sell, is the inquiry whether the owners or in. rectness of the opinion that the mas- [*403


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ter's power to sell is not confined to a foreign | 'uit Court of the United States for the East. port, or to a stranding in another State. This rrn District of Louisiana. doctrine holds out no encouragement to the Mr. Jones, for petitioner, stated that William master to sell: it gives him no facility to sell, W. Whitney and Myra Clarke Whitney had when it is not authorized by necessity, clearly filed a bill in the District Court of the United made out, and exercised with good faith and States for the Eastern District of Louisiana, sound discretion.

which was afterwards transferred to the Cir. We 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 was continued in the name of his widow, Myra argued by counsel, though they are in the Clarke Whitney. record, and which it would have been neces- The subpæna issued on the bill was served sary for the court to consider, if the respondon a number of defendants, and among them ent's rights under the sale had not been estab. on Relf and Chew. The object of the bill is to lished by the points decided.

recover property devised to the complainant by We think the facts in the case, which will a will of Daniel Clarke, in which the complainappear in the report of the case made by the ant, his only child, and heir-at-law, was his reporter, show that the master of the Sarah general legatee; and Relf and Chew Ann was in that necessity, from her stranding charged in the bill with having fraudulently and daily probable loss, to make it proper for concealed and suppressed this will, and having him to sell her hull, sails, and rigging for the set up a prior and revoked will, in which they benefit of all concerned: that the sale was made are named executors, with plenary powers of upon the information and advice of competent disposal and sale over the real estate of the judges, aiding his own judgment, and that it testator; and they had disposed of the immense was made in good faith and in the exercise of estate, under color of their office and authority, a sound discretion.

as executors and testamentary legatees; whilst The decree of the Circuit Court is therefore the complainant for a time, an infant of tender affirmed.

years, was in ignorance of his parentage and This cause came on to be heard on the fendants are charged with combining with

true name, and of his rights. The other detranscript of the record from the Circuit Court Chew and Relf, and with having purchased, of the United States for the District of Massa- and withholding parts of the estate of Daniel chusetts, and was argued by counsel; on con; Clarke, under sales by Chew and Relf. sideration whereof, it is ordered, adjudged

The bill he stated set out a case for the relief and decreed by this court, that the decree of of a court of *equity, seeking special .1*.405 the said Circuit Court in this cause be, and the and general relief, according to the principles same is hereby allirmed with costs.

and course of procedure of a court of equity. A copy of the bill for each and every of the de. fendants, about fifty in number, was served

with the subpænas. 404'] 'Ex-parte MYRA CLARKE WHITNEY.

On the 20th February, 1837 (about two Mandamus not proper remedy for errors of dis- months after the subpænas were returned, trict judge in exercise of his authority.

served), the two executors, with twenty-five

of their co-defendants, appeared by their reThe district Judge of the eastern district of spective solicitors, and filed a petition, where, proceedings on a bill in equity to be in conformity in, styling themselves respondents, eleven of with the rules of the courts of Louisiana, thus dis: them say French is their “mother tongue;" not courts of the United states in cases in chancery, that they do not understand English as well, prescribed and ordered by the Supreme Court of and pray, as a precedent condition to their the United States. It was also declared that the being held to plead, answer, or demur to the practice and proceedings in all civil causes, those of admiralty alone excepted, should be conformable bill, that a copy, in their "maternal language,” to the provisions of the Code of Practice of Louisi be served on each and every of them, severally, Under this order, and by the course of the court: served. Then, “all the aforesaid respondents

over and above the English copies already the proceedings on the bill in equity were suspended and prevented. A motion was made for a (including, of course, the two executors), here mandamus to the Circuit Court, In the nature of a appearing separately by their respective solicitin the cause according to the rules of practice pre ors, crave oyer" of all the instruments and pa. scribed to the courts of equity of the United pers of every sort mentioned in the bill; but States, etc., to award attachments, etc., and in all 'if it be not possible for said complainants to the Constitution and laws of the United States afford these respondents oyer of the originals of and the principles and usages in equity will au. said supposed instruments, they then pray that thorize. Held, that this is not a case in which a mandamus will lie. The appropriate redress, u copies of the same, duly certified according to any, is to be obtained, after the anal decision shall the laws of the State of Louisiana, may, by be had on the cause, by appeal.

order of this honorable court, to said complainA writ of mandamus is not the appropriate remedy for any errors which may be made in a cause, ants, be filed herein, and served on these reby a judge in the exercise of his

authority, although spondents, that they may be enabled to take they may seem to bear harshly or oppressively on proper cognizance thereof." The respondents, the party. The remedy in such cases must be sought in some other form.

more especially, crave oyer of twenty-three of

these instruments enumerated and specified in [R. JONES presented a petition, and moved a list, referring to the several clauses of the


I 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 per. Eastern District of Louisiana, "decreed that mission. the application of the defendants for oyer of Judge Lawrence, at the same term of the the documents and for copies of the bill in the Circuit Court, upon his sole authority, in the manner prayed for, be granted;" and he ordered absence of the circuit judge, undertook to pre"that all the future proceedings in the case scribe rules of practice for that court; and this shall be in conformity with the existing prac- he did very compendiously, by a general order tice of the District Court."

"that the mode of proceeding in all civil The petitioner, by Mr. Jones, her counsel, causes (those of admiralty alone excepted) stated that the order so granting the prayers of shall be conformable to the provisions of the the petition, in extenso, has ever since stood a Code of Practice of Louisiana, and of the acts bar against the entrance of the complainant be- of the Legislature of that State, heretofore yond the threshold of justice; the regular prog- passed amendatory thereto.” ress of the cause to issue has been arrested, The counsel for the petitioner further al. and a hearing indefinitely delayed, unless the legedprecedent condition, thus arbitrarily and illegal That the burdensome and oppressive exacly imposed, of a compliance with all and singu. tions put forth by the respondents in their pelar the requisitions of the respondents in their tition could have had no other design or tenpetition, be fulfilled to the last tittle.

dency but to evade the suit and its legitimate As if this were not a sufficiently distinct and consequences, and to wear out and weigh down emphatic renunciation of the jurisdiction, as the complainant by mere vexation and chicanwell as of the forms and modes of proceeding ery, too thinly veiled behind frivolous pretexts, appropriate to courts of equity, the further is quite apparent. That both the district and order, determining "all future proceedings in circuit courts, enforcing those exactions, have the case,” is completely tantamount to an unflown in the face, and abnegated the authority qualified conversion of the case into a suit at of the supreme tribunal expressly appointed by law; since “the existing practice” referred to, law to regulate their action and control their is no other than a set of rules exclusively judgments, is plain and palpable. As little can adapted to “suits at law as contradistinguished the double result be questioned, of a manifest from equity causes.”

impediment to the course of public justice, The death of Judge Harper occurred between coupled with wrong and oppression to the in the 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 court, redress at once of the private and the opportunity was presented of bringing the prac public wrong, by the vindication *and (*407 406*] tical effect *and operation of his order maintenance of the cause of public justice vioto the test of any motion before him to enforce lated, as it is, in her person. the course of procedure prescribed by this court, Mr. Jones further contended, in support of upon the failure of the defendants to answer the motion, that if this court have an appellate within three months after return of subpænas jurisdiction over the proceedings of the Circuit served. But that test was presented to his suc- Court of Louisiana, they may interpose by a cessor, Judge Lawrence, at that term, when the mandamus to have done what the court has a time allowed for answers had expired more right to correct by a writ of mandamus. This than two months, without any plea, answer or may be done in a case pending, although the demurrer from any of the defendants, and when court will not originate a case by a mandamus. the option of one of the three modes prescribed | Cited, Marbury v. Madison, 1 Cranch. by this court as aforesaid, was complete in the This court will proceed by a mandamus, complainants, and the right to exercise it ab- when it is necessary to interpose for the exer. solute. The complainant, then, by way of excise of the appellate power of the court, and periment, moved for an attachment for answer when there are no other remedies. The issue against the said Richard Relf, one of the de- of a writ of habeas corpus is on the ground that fendants returned duly summoned, which mo- in no other manner in the case could the appeltion the judge virtually overruled; that is, he late power of the court be exercised. refused to pass any order, or take the least The act of Congress refers to the usages nouice of it during that term. Before the next which are derived from the common law, and ensuing session of the District Court, its juris at common law a mandamus lies to enforce diction as a circuit court was taken away; and, judicial acts, and to correct judicial errors in together with all the causes then pending with inferior courts. in the sphere of that jurisdiction, was trans. A mandamus and a writ of procedendo differ ferred to the new created Circuit Court for the very little, and are both to enforce the proceedsame district. At the first session of that ings of courts. Cited, 3 Black Com. 109; 5 court, held by Judge Lawrence alone, in the ab- Comyn's Dig. 91. As to the difference beBence of the circuit judge, the motion for at-tween judicial and ministerial acts by a court, tachment was again pressed; and the judge the counsel cited 5 Comyn's Dig. 34; 5 Term not only refused to grant it, but resisted re- Rep. 549. peated applications from the complainant's so There is an obvious necessity for a remedy in licitor to have the motion and his refusal of this case. The proceedings of the Circuit Court it recorded among the proceedings of the court; of Louisiana are entirely suspended; and by a he refused to permit any notice whatever to be palpable and flagrant violation of the rules of taken of the matter in the minutes or proceed the court in chancery cases, as prescribed by ings of the court. The clerk thought it his this court, and to which the Circuit Court of official duty, sua sponte, to make the proper Louisiana is bound to conform, the appellate entries in his minutes of the proceedings, but power of the court is defeated. The case is

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kept from the final decision of this court by the of equity.. On consideration of the motion entire disregard of his duties by the judge of made in this cause by Mr. Jones, on a prior day the Circuit Court, and of rules which he is of the present term of this court, to wit, on bound to enforce.

Saturday, the 26th day of January last, and of Mr. Justice Story delivered the opinion of the the argument of counsel thereupon had, it is

nowhere ordered, adjudged and decreed by court: This is the case of a motion made on behalf this court, that the said motion be, and the

same is hereby overruled. 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

SON, Plaintiffs in Error, pending in the said Circuit Court, in which the petitioner is plaintiff, against Richard Relf and others, defendants; that it is understood to be

CHARLES H. HALL, Defendant in Error. the settled determination of the district judge Creditors of deceased surveyor no claim on sum not to suffer chancery practice to prevail in the paid to his legal representatives by United Circuit Court; that her right to proceed in her States, he having no legal claim for such sum. suit has been denied until she shall cause copies of her bill in the French language to be served lation of the laws of the United States prohibiting

The Josefa Segunda was condemned for a vio. upon the defendants or some of them, and until the slave trade: and by a decree, the District Court she shall file documents, which are not made of Louisiana allowed the claim of the collector, the exhibits in the cause, and then that all further for the forfeiture, to a portion of the proceeds of

surveyor, and naval officer, who had prosecuted proceedings in the cause shall be in conformity the sale of the property condemned. This decree with the existing practice of the court, which was afterwards reversed, and the whole proceeds existing practice is understood to mean the adjudged to the United States, on an appeal to the

William Emerson, the surveyor, practice prevailing in the court in civil cases afterwards died : and in 1831 Congress passad an generally, in disregard of the rules established act for the relief of the collector, the heirs of wil.

liam Emerson, and the heirs of the naval otiicer; by the Supreme Court to be observed in chan- under the authority of, which the sums which had cery cases. The prayer of the petition is for a been adjudged to those otticers, and which had remandamus in the nature of a writ of proceden- by an order of the court paid to them according to 408"] do, to compel the *court to proceed as the provisions of the law. One of the creditors of cording to chancery practice, to award an at. William Emerson claimed the sum so paid to his tachment, and compel Relf to answer her bi!?, legal representatives, as assets the payment of

Held, that the payment made by order and to suffer the petitioner in all things to pro- of the District Court, to the minor children of ceed in the cause in such manner as the Con William Emerson, as his legal heirs, was rightfully stitution and laws of the United States, and their hands as assets for the payment of the debts

made, and that the same cannot be considered in the principles and usages in equity will author of their father. ize. A copy of the bill, and the orders and The prosecution of The Josefa Segunda by the proceedings of the district judge thereon, are

officers of the customs of Louisiana, was not done

under the authority of any law, or by any author. presented with the petition.

ity ; and these acts impose no obligation, either in That it is the duty of the Circuit Court to law or equityon the government to compensate

them. The claim for those services could not have proceed in this suit according to the rules pre- been set up either as an equitable or a legal offset scribed by the Supreme Court for proceedings to any demand of the government against them, or in equity causes at the February Term thereof, either of them; while, under the rules of law, 'any A. D. 1822, can admit of no doubt. That the specific demand on the government which imposed

on it even an equitable obligation, might be set up proceedings of the district judge, and the orders as an offset. made by him in the cause, which are com

Services rendered under the requirements of law,

or of contract, for which a compensation is fixed, plained of, are not in conformity with those constitute a legal demand the government. rules, and with chancery practice, can admit of Services rendered under an authority which is 28 little doubt. But the question before us is casual, or in some degree discretionary, may consti

No individual can be not as to the regularity and propriety of those made a debtor against his will. Voluntary benefits proceedings, but whether the case before us is may be conferred on him which may excite bis gratone in which a mandamus ought to issue. And may suitably reward. But this depends on his own

Itude or which in the exercise of his generosity he we are of opinion that it is not such a case. volition. it would constitute a singular Item The district judge is proceeding in the cause, under the law of assets, to raise a charge against however irregular that proceeding may be untary act of kindness.

an individual for a benefit conferred by some vol

The rule is the same, deemed; and the appropriate redress, if any, is whether the benefit be conferred on the governto be obtained by an appeal after the final de- ment or an individual. cree shall be had in the cause. A writ of man

A claim against a foreign government for spolia

tion is not of this character. The demand in such damus is not the appropriate remedy for any a case is founded on the law of nations, and the oborders which may be made in a cause by a ligation is perfect on the offending government. judge in the exercise of his authority; although ly upon the party.

Eastern District of must be sought in some other form.

In 1829, Charles H. Hall, residing in New The motion for the mandamus is therefore bates of the City and Parish of New Orleans,

York, presented a petition to the Court of Prodenied.

stating that the estate of William Emerson, de. On petition for a mandamus or for a rule to ceased, was indebted to him in the sum of show cause why such writ should not issue re seventeen hundred dollars and upwards with quiring the judges of the ninth judicial circuit interest; and he prayed the court, that Charles to proceed in this cause, according to the rules / 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.

to which the curator of the estate was entitled. Mr. Bryne, as tutor and curator of the minor They were not a debt due by the United heirs of William Emerson, by his answer, States to the naval officer. The whole prodenied that the estate of Emerson was in any ceeds of the Josefa Segunda had, by the de. wise indebted to the petitioner; and on the 8th cree of the Supreme Court of the United States, of February, 1830, a decree was given in the been held to be the property of the United Court of Probates against the estate of Emer. States. The Act *of Congress gave a (*411 son for the amount of the debt claimed in the portion of those proceeds to the officers the petition.

customs; but this was a gift, and not the ad. Afterwards a case was submitted to the mission of a claim. 410*) Court of Probates by the petitioner Charles H. Hall, and Charles Byrne, tutor and Mr. Justice M'Lean delivered the opinion of curator, etc., by which it appeared that William the court: Emerson died in the year 1828; previous to This is a writ of error to the Supreme Court that time, he, as surveyor, B. Chew, as col- of the State of Louisiana, under the 25th seclector, and E. Lorrain, as naval officer of the tion of the Judiciary Act. port of New Orleans, had, at their sole expense, The defendant here, as plaintiff in the Court the brig Josefa Segunda condemned in the name of Probate at New Orleans, recovered a judg. of the United States, in the District Court of ment in 1830, against the estate of Williain the United States, for the Louisiana District, Emerson, for seventeen hundred and eighty. for an infraction of the slave laws; they eight dollars and sixty-two cents; and the claimed title to the proceeds of this seizure, as question in this case is, whether the heirs of the true and actual captors and seizors, who Emerson shall be held responsible for the paymade the last and only effectual seizure, and ment of this judgment under the following cir. prosecuted the same to a final decre of con: cumstances : demnation. The decree of the District Court In April, 1818, Emerson, being surveyor of allowed the claim, but the case having been the port of New Orleans, with B. Chew, the brought up before the Supreme Court of the collector, and E. Lorrain, the naval officer, United States, that tribunal reversed the judg- seized the brig Josefa Segunda, for a violation ment, on the ground that Congress had made of the laws which prohibit the importation of no provision for their compensation, and they slaves, and instituted proceedings against her, were left, in common with those who made the which resulted in the condemnation of the ves. military seizure, to the liberality of the govern- sel and slaves. This judgment being pro. ment. Thereupon, the said collector, and sur. nounced by the District Court of the United veyor, and naval officer, applied for relief to States for Louisiana, was aflirmed on an ap. Congress, and obtained from that branch of the peal to the Supreme Court of the United government an Act entitled “An Act for the States. relief of Beverly Chew, the heirs of William On the cause being remanded to the District Emerson, deceased, and the heirs of Lorrain, Court, the negroes having been sold as well as deceased,” the same being duly approved on the vessel, a question was raised by several the 3d March, 1831; and in compliance with claimants as to the distribution of the proceeds the provisions of said act, upon motion before of the sale: and the District Court, dismissing the District Court, the moneys remaining in the claims of others, allowed those of the colCourt after the payment of costs were paid lector, the surveyor, and the naval officer. From over to Beverly Chew, and to the legal represen- this decree there was an appeal to this court. tatives of both Emerson and Lorrain.

And as appears from 10 Wheat. 331, this court The question for the decision of the court decided that the proceeds, under the laws of was whether the money received by the minor the United States, should not be paid to the children, as the legal 'representatives of Wild custom-house officers who made the seizure, liam Emerson, by virtue of the Act of Congress but that they vested in the United States. The of the 3d of March, 1831, could be made liable decree of the District Court making the allow. for the payment of the debts of their father. ance, was therefore reversed; and that part of

The judge of the Court of Probates decreed it which dismissed the petition of other claim. that the judgment rendered in favor of the ants was affirmed. petitioner should be satisfied out of those In 1828, Emerson died, leaving heirs. moneys or any other assets belonging to the On the 3d March, 1831, an Act entitled, “An estate, in the hands of the curator, or in those Act for the relief of Beverly Chew, the heirs of of the heirs of the deceased.

William Emerson, deceased, and the heirs of Mr. Byrne, as curator and tutor, appealed Edward Lorrain, deceased,” was passed by from this decree to the Supreme Court of Louis. Congress. iana, by which court the decree of the Court The preamble of this act states, “Whereas, of Probate was affirmed.

the brig Josefa Segunda was condemned in This appeal, under the 25th section of the the name of the United States, in the District Judiciary Act of 1789, was prosecuted on be- Court of the United States for the Louisiana half of the heirs of William Emerson.

District, in the year 1818, on the seizure and Mr. Coxe, for the appellants, contended that prosecution, and at the sole expense of Beverly the moneys derived by the children of William Chew, collector of the district of Mississippi, Emerson, under the Act of Congress of 31 | William Emerson, deceased, surveyor,

and March, 1831, were not assets for this payment Edward Lorrain, deceased, naval officer of the of the debts of their father. They were a port of New Orleans, for an infraction of the gratuity from the government of the United / slave laws: and whereas, the one half of the

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