THE LIFE AND FIRE INSURANCE COMPANY OF NEW YORK

v.

CHRISTOPHER ADAMS

Mr Chief Justice Marshall delivered the opinion of the

Court.

The petition for a mandamus states, among other things, that Christopher Adams of Iberville, in Louisiana, .on the Kith day of January 1824, at New. Orleans, executed and acknowledged before a notary public, a mortgage of a plantation, called the Belle Plantation, in Iberville, with seventy slaves, for securing to the petitioners divers sums of money, amounting to 32,522 dollars and 50 cents, at different periods, the last payment to fall due on the 18th-day of January 1829, all bearing interest at the rate of seven per cent per annum. At the time of executing the said mortgage, sundry notes' were also given for the payment of the same sums of money.

- In consequence .of the failure of the said'Adams to pay any part of the said debt, application was made to the honourable Thomas B-. Robertson, then judge of the district court' of the United States for the eastern district, of Louisiana, for an order of seizure and sale, who granted the same, in the following words:

?* Let the mortgaged premises, set forth and stated in the • plaintiff’s petition, be. seized and sold, as therein prayed for, and in the manner directed by law, subject to the payment of the debts of the plaintiff. Thomas B. Robertson, Judge U. ' S. Eastern District of Louisiana.”

John Nicholson, the marshal, who seized the mortgaged property, and advertised the same for sale'; was stopped,, by a writ of injunction, on wdiich the following' return was made :

“ received this' writ of injunction this 18th of March 1S26, and served a copy thereof, and of plaintiff’s petition, on Ripley and Conrad ; on sanie day released the property at suit of Life and Fire Insurance Company of New .York against Christopher Adams, and returned into court the 20th of March instant.”

On the 2d day of May 1826, the petitioners entered into a transaction with the said Christopher Adams, before a notary public, in which it was stipulated,' that the injunction be dissolved, and in which the defendant agreed to confess judgment, and did confess judgment, on all the notes then due. He further stipulated to confess judgment on .the residue of the notes, in the deed of mortgage mentioned, as they should respectively become due; “ and in default of-such confession of judgment, the said Christopher Adams did, by the said transaction, constitute and appoint Henry Eckford, president of •the Life and Fire Insurance Company,' or hi's successor in office for the time being, his attorney in fact, and irrevocable, in his name and stead to appear in said court and cause judgment to be entered up against him, the said Adams, for each and every of said notes, with interest, as aforesaid; whenever the samé shall arrive at maturity, as aforesaid.” And the said Adams further gave'to the said Henry Eckford or to his successor in office for the. .time being, attorney'as aforesaid, full power of substitution in the' premisses.

• And the said Life and Fire Insurance Company, in consideration of such confession of judgment, and preserving all their liens, mortgages and preferences in and over.the mortgaged premises, agreed to stay execution until the 18th day of'January 1S29, when the last note would arrive at maturity. It was farther agreed, that this transaction shall be entered upon the records of the court of the United States for the eastern district of Louisiana, as a decree of said court, and shall have all the force and effect as though it were entered up in open court.

In pursuance of this transaction, a judgment was recorded in the said district court, on the 18th of May 1826; which the judge died without signing. The petitioners then transferred their interest in the said'debt to Josiah Barker, in trust for the Mercantile Insurance Company of New York, with power to use their names in the collection thereof. In the instrument of transfer, the said Life and Fire Insurance Company constituted Josiah Barker, his executors, administrators and assigns, their true and lawful attorney and attorneys ^revocable, in their names, but to and for the use of the said Mercantile Insurance Company of New York, to pursue and enforce in all courts and places whatever, the recovery and payment of the said money.

The honourable Samuel H. Harper, the successor of the honourable Thomas B. Robertson, having refused to complete the said judgment of his predecessor, by signing it; a mandamus was directed by this court, ordering him to do so, in com-, pliance with which, the said judgment was signed.

The judgment is in these words:

“ Life and Fire Insurance Company of New York v. Christopher Adams,

“In this case, the plaintiffs having filed in this court a transaction,' &c. ‘it is therefore ordered, adjudged and decreed, that in pursuance of said transaction, the injunction -in this case shall be dissolved ;and it is further ordered, adjudged antf decreed, that judgment be entered up in favour of the plaintiff, in pursuance of said transaction, for all the notes therein specified, which have become due and payable, with seven per cent interest thereon, &c. to wit, the sum of 1500 dollars, &c.’

“ It is further ordered, adjudged and decreed, in pursuance of the transaction aforesaid, that whenever, any of the notes mentioned.in the said transaction as not yet arrived at maturity, shall become due and' payable, that the judgment shall be.entered up for the plaintiffs -upon all and every of the said notes as they arrive at maturity, &c.'

“ It is further ordered, adjudged and decreed, that there shall be a stay of execution, &c. until the 18th day of January .1829 ; and that if tire amount o,f the judgment in this suit is not then paid, &c., that the lands, slaves and movable property described in the mortgage mentioned in the plaintiff’s petition, shall be sold according to law, to satisfy the judgment in -the premises.”

Application was; at the same time,-made to the district court, to enter a further judgment for the notes which had become due subsequent to the 16th day of May 1826, urt of Louisiana. The supreme'court of the United States has no original jurisdiction over it, and cannot exercise appellate jurisdiction previous'to a filial judgment or decree, further than to order acts, purely.ministerial,- which the duty of the district court requires it to perform. This court cannot, in the present condition of the case, construe judicially the laws which govern it, or decide in whom the property is vested. In so doing, ft would intrude itself into the management of, a case requiring all the discretion of the district judge, and usurp his powers.

'Phe mandamus cannot be granted as prayed.

The fifth prayer asks a mandamus requiring the judge to compel the marshal to, execute the writ of execution heretofore issued, on the 30thofApril 1834, on the said'judgment, for the amount of the notes of the said Adams, due on the 16th of May 1836,- notwithstanding the cession and other matters mentioned by the marshal in the return .the'reof.

This prayer differs from that which preceded it only, in the-amount for whi ;h the execution is to' issue. So faV as respects the,interference of the supreme court in construing laws not regularly before it, and controlling the discretion of the district court; they stand on,precisely the same principle. The objections, therefore, which were stated-to granting the fourth prayer, apply equally to the fifth.

The court eannot grant a mandamus ordering-the .district court to perform any one of the specific acts which have been stated in the petition; or in the. more particular application contained in the statement presented by counsel.

Though the supreme-court-will not order an inferior tribunal to render .judgment for or. against either party; it will, in a proper case, order such court to proceed to judgment. Should it be possible, that in a case ripe for judgment, the court before whom it was depending, could, perseveringly, refuse to terminate the cause; this'court, without indicating the character of the judgment, would be required by its duty tq order the rendition of some judgment: but,- to justify this mandate, a plain case of refusing to proceed in the inferior court ought to be made out; In Ex parte Brádstreet., 8 Peters 590, this court said:

“We haye only to say, that a judge must exercise his discretion in those intermediate proceedings which take place betwéen the institution and trial of a suit; and if, in the performance of this duty, he acts oppressively, it is not to this court that application.is to be made.

. “A mandamus, or a rule to show cause, is asked .in the casé ’ in which a verdict has been given, for the purpose of ordering the-judge to enter up judgment upon -the verdict. The affidavit itself shows that judgment is suspended for the purpose of considering a motion which has been made fora néw trial. The verdict was given at the last.- term; and we understand it is not unusual in the state, of New York for á judge to hold a motion for-a new trial under, advisement till the succeeding term. . There is then nothing extraordinary in the fact, that Judge Conklin should take time till the next term to decide, on the motion for a new trial.”

. In the. case now under consideration, no application is made fora mandamus directing the courts generally to proceed to judgment. The petitioners require a mandamus ordering..the judge to render a specific judgment in their favour. It is not-even shown that the case is in a condition for a final judgment; nor is it shown that the’jüdge is unwilling to render one. The contrary may rather be inferred from his readiness to grant a rule on the defendant, requiring him to show cause wh)^ judgment should not be rendered. In a case of such long standing, where it is more than' possible the defendant might not be in court; where judgment is asked on a confession made by the agent of the plaintiffs, professing to be the attorney of the defendant; the judge may be excused for requiring that notice should be given to the defendant.

The rule is discharged.

Mr Justice M’Lean.

-1 concur with the opinion which has been delivered.

At first I was inclined to think that, under the general prayer for. relief, the court might award a mandamus directing the district judge to enter á judgment in. the case. Not that this^court, on a mandamus, should direct.the district court to enter a judgment in behalf of either party; but that, in the due ' exercise of its discretion, it should proceed to render a judgment in the case, in order that such judgment might be. brought before this court for revision, by writ of errori But as there is no specific prayer .for a mandamus, on .the ground that the court has ^refused to give a judgment, I am _ content, as it involves a mere question of practice, to agree with my-brother-judges, that a prayer for this writ must point out specifically the ground of the application.

• Whatever effect the insolvent-law of Louisiana ipay have to divest the jurisdiction of a state court, where the property of a' defendant is transferred to the syndic; such cannot be the effect on the jurisdiction of a court of the United States. No state law, or proceedings under a state law, can divest a court of the United States of jurisdiction. And in this case, I can entertain no doubt, that‘the district court, having jurisdiction, may proceed to a fihal judgment. Whether an execution, issued upon such judgment, may be levied upon the property in the hands of thei syndic, presents a question which depends upon very different principles.

On consideration of the motion made in this case for a mandamus to be addressed to the honourable Samuel H. Harper, district judge of the United States for the eastern district of Louisiana, and of the arguments of counsel thereupon had, as well in opposition to, as in support of the motion: it is now here ordered and adjudged by this court, that the mandamus prayed for be, and the same is hereby refused, and that the said motion be, and the same is hereby overruled. .