EX PARTE BENJAMIN STORY, IN THE MATTER OF LOUISELIVINGSTON, EXECUTRIX OF EDWARD LIVINGSTON,DECEASED, APPELLANTv.BENJAMIN STORY.

Forasmuch as your petitioner is without other remedy, he prays your honourable body to award to him a writ of mandamus, in nature of a writ of procedendo, to compel the judge, the Hon. P. K. Lawrence, to sign said exceptions; and to permit the said record to speak the truth.

Your petitioner prays for whatever else in the premises that the circumstances of the case will require.’

The facts stated in the petition were verified by an affidavit, by Mr. Chinn, the counsel for the petitioner, in the circuit court.

The following is a copy of one of the bills of exception referred to in the foregoing petition:

v.

On motion to strike the cause from the docket.

Be it remembered, that on the trial of this motion, the defendant, Story, introduced Henry Carlton as a witness, and offered to prove by him, that Edward Livingston, the former complainant herein, departed this life on the ___ day of _____, and before the trial and decree in this court, at the spring term, 1836; and also, that Edward Livingston left living a daughter and heir at the time of his death, who is still living. To the admissibility of all of said evidence, the complainant’s counsel objected, and the court sustained the objection; and would not permit said witness to be examined, or the testimony of the foregoing facts, or either of them, to be inquired into. To which opinion of the court the defendant excepted, and prays that his exception may be signed, sealed and enrolled, which is done.

The motion was opposed by Mr. Key, the counsel for Mrs. Livingston.

Mr. Justice TANEY delivered the opinion of the Court.

In this case, a mandamus has been moved for on behalf of Benjamin Story, to the circuit court for the ninth circuit for the eastern district of Louisiana.

The facts in the case are as follow: Edward Livingston, in his lifetime, filed a bill on the equity side of the district court for the eastern district of Louisiana, against Benjamin Story; and at the hearing of the cause, the court decided against the complainant, and dismissed the bill. This decree was passed June 3d, 1836. On the 1st of October, 1836, Louise Livingston filed a petition in the district court, stating that Edward Livingston had died after the suit was decided, and had by his will appointed her sole executrix; and praying leave to make herself a party, in order to appeal to this Court. A copy of the will of Edward Livingston was filed with this petition, by which it appeared that she was the sole executrix. Louise Livingston was accordingly permitted to become a party, and by her solicitor, appeared in the district court as complainant in the character of executrix, and appealed to this Court; where the cause was heard at January term, 1837, and the decree of the district court reversed, and the case sent back, with a mandate from this Court to the court below, directing the further proceedings to be had in that court.

It appears by the petition for the mandamus, (which is verified by affidavit,) and by the copy of the record from the court below which accompanies it, that the mandate from this Court was filed in the district court, March 2d, 1837; and proceedings were accordingly had under the orders of the district court, to carry into execution the directions contained in the mandate. Afterwards, the case having been transferred to the circuit court, under the act of congress creating additional circuits, the defendant, on the 20th of November, 1837, obtained a rule on the complainant to show cause why the bill should not be dismissed, or the suit abated, upon the ground that Edward Livingston, the complainant in the original bill, died before the hearing and decree in the district court in 1836; and also, because the suit had not been regularly revived by his executrix, the present complainant, and could not be revived, inasmuch as she claimed as devisee. On the 18th of December, 1837, the rule abovementioned was discharged; and the testimony offered to prove the facts alleged as the foundation of the rule rejected by the court. The defendant, on the day last mentioned, further moved that he be permitted to give evidence that Edward Livingston had left other heirs besides Mrs. Louise Livingston, which motion was also overruled by the court. The defendant thereupon tendered a bill of exceptions to these opinions, but the court refused to sign it. The defendant affterwards prayed leave to file ‘a supplemental answer and plea,’ in which he averred that Edward Livingston, the original complainant, died on the 23d of May, 1836, which was some days before the decree of the district court dismissing his bill; and also averred, that he left a daughter, who was still living, and had an interest in the subject matter in controversy; and plead the death of said Edward Livingston in abatement of the proceedings; and further insisted that the suit had never been revived by Louise Livingston, who appears as complainant; and that the daughter of Edward Livingston was a necessary party; and that the court could not entertain jurisdiction because she was not a party. The court refused to receive this answer, or to permit it to be filed. The defendant thereupon tendered another bill of exceptions, which the court refused to sign. The defendant then moved the court to direct the clerk to state the facts upon the order book, but the court refused to suffer any notice to be taken on the record of this proposition to file the supplemental answer and plea; and a mandamus is now moved for, to compel the judge to sign the exceptions, and to correct the record, so as to make the answer which defendant proposed to file, and the refusal of the court to receive it, appear on the record as a part of the proceedings.

We think there is no sufficient grounds for this application. A bill of exceptions is altogether unknown in chancery practice; nor is a court of chancery bound to inscribe in an order book, upon the application of one of the parties, an order which it may pass in a case before it; and the facts which the defendant stated in the supplemental answer and plea which he offered, furnished no ground of defence in the circuit court; when acting under the mandate of this Court, and carrying its directions into execution. In the case of Skillern’s Executors v. May’s Executors, 6 Cranch, 267, this Court said, that as it appeared that the merits of the case had been finally decided in this Court, and that its mandate required only the execution of its decree; the circuit court was bound to carry that decree into execution, although the jurisdiction of the court was not alleged in the pleadings. In the case now before the Court, the merits of the controversy were finally decided by this Court, and its mandate to the district court required only the execution of its decree. The case, therefore, comes within the principle of Skillern’s Executors v. May’s Executors, and the facts stated by the defendant cannot, in this stage of the proceedings, form any defence against the execution of the mandate; and consequently he was not deprived of any legal or equitable ground of defence by the refusal of the court to suffer him to file the supplemental answer and plea which he offered.

The motion for the rule to show cause, is therefore refused.

On motion for a mandamus to the judge of the circuit court of the United States for the eastern district of Louisiana. On consideration of the motion made in this case by Mr. Crittenden, on a prior day of the present term of this Court, to wit: on Saturday the 17th day of February, A. D. 1838, for a writ of mandamus in the nature of a writ of proceed do, to compel the judge of the circuit court of the United States for the eastern district of Louisiana, to sign the bill of exceptions tendered to him by the counsel for the appellee in this cause, and to permit the record of the case ‘to speak the truth,’ and of the arguments of counsel thereupon had as well in support of, as against the motion; it is now here ordered and adjudged by this Court, that the said motion be, and the same is hereby overruled.