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EDMUND P. GAINES and MIRA CLARKE, late WHITNEY, Complainants, v. RICHARD RELF

January 1, 1841

EDMUND P. GAINES AND MIRA CLARKE, LATE WHITNEY, COMPLAINANTS,
v.
RICHARD RELF, BEVERLY CHEW AND OTHERS, DEFENDANTS.



CERTIFICATE of Division from the Circuit Court for the Eastern District of Louisiana. A bill of complaint was originally filed in the district court of the United States for the eastern district of Louisiana; and was afterwards transferred to the circuit court for the same district. Subpoenas were issued, on the 1st of August 1836, with a copy of the bill, to each and all the defendants, about fifty in number. Service of this process was made by the marshal, on twenty-seven of the defendants, and amongst them, on Richard Relf. W. W. Whitney, one of the plaintiffs, having died, the proceeding was continued in the name of Mira Clarke Whitney, his widow. The bill claimed the estate left by Daniel Clarke, at the time of his death; alleging that Mira Clarke Whitney was his only child and heir-at-law, and his devisee.

The bill charged Beverly Chew and Richard Relf with having fraudulently concealed and suppressed Daniel Clarke's true and last will, in which the complainant, his daughter and heir-at-law, was his only devisee, and was his general legatee; with having set up another will, in which they were named executors, and with having taken and appropriated all the estate, real and personal, of Daniel Clarke. The other defendants were charged with confederating with the executors; and with having obtained, and still holding, large portions of the estate, through the executors, or under them. The bill contained an inventory of the estate of Daniel Clarke, so far as could be made out. For these frauds and breaches of trust, the bill claimed restitution, &c.

On the 20th February 1837 (about two months after 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 proper cognisance thereof.' The respondents more especially crave oyer of twenty-three of these instruments, enumereated and specified in a list referring to the several clauses of the bill where they are respectively mentioned.

No answer having been put in by the twenty-five respondents, a motion was made for an attachment, which was refused by Judge Lawrence, the district judge, sitting as a judge of the circuit court, to which the proceedings were transferred after the establishment of a circuit court in the eastern district of Louisiana. At the same time, Judge Lawrence, sitting alone in the circuit court, prescribed rules of practice for that court; among which, was a general one, that 'the mode of proceeding in all civil cases, those of admiralty alone excepted, shall be conformable to the code of practice of Louisiana, and to the acts of the legislature of that state, heretofore passed, amendatory thereto.'

The complainant applied to the supreme court, at January term 1839, for a mandamus to Judge Lawrence, in order to compel him to proceed in the case. (13 Pet. 408.) The mandamus so applied for was denied, for reasons appearing in the court's opinion; but the court, at the same time, expressly declared, though the remedy by mandamus was inadmissible, that it was the duty of the circuit court to proceed in this suit, according to the rules prescribed by the supreme court, at the February term 1822, could admit of no doubt; and that the proceedings of the district judge, and the orders made by him in the cause, which were complained of, were not in conformity with those rules of chancery practice, could admit of as little doubt. (13 Pet. 408.)

Since then, the present complainants (having intermarried) filed a petition for rehearing the before-stated order, by a bill filed in the circuit court on the lst of June 1839. The petition stated, that the complainants were much aggrieved by the interlocutory decree made in the case by the former district judge for the eastern district of Louisiana; whereby it was ordered that the application of the defendants for oyer of documents, and for copies of the bill of complaint should be allowed; and further, that all further proceedings in the case should be in conformity with the existing practice of the court.

On June 1st, 1839, in the circuit court, before the honorable Judges McKinley and Lawrence, the counsel for the complainants moved the court, lst. To set aside and vacate said decretal order. 2d. To remand the said cause to the rule-docket, and order that the complainants should be permitted to proceed therein according to chancery practice. The defendants appeared by their counsel, and resisted said application and motion, upon the ground, that chancery practice could not be had in this court, and they relied upon the treaty of cession of Louisiana to the United States from France, in 1803; the acts of congress of 29th September 1789; 26th May 1824; the 19th May 1824; and 20th May 1830; and the first rule adopted by this court, of 20th November 1837.

The judges of the circuit court having differed in opinion on the hearng of the motion, it was ordered to be certified to the supreme court for its decision, upon the following questions: 1st. Does chancery practice prevail, and should it be extended to litigants in this court, and in this cause? 2d. Should or not the said order, of the date of 9th March 1837, be annulled and vacated? 3. Should or not the cause be placed upon a rule-docket, and the complainants be permitted to proceed according to chancery practice, and the defendants be required to answer without oyer of the documents prayed for, or a service of the bill in French, as prayed for? And the cause coming on to be heard, by consent of parties, upon the demurrer, and upon the adjudication thereof, the judges were opposed in their opinions, and the foregoing questions were ordered to be certified to the supreme court of the United States for its decision and adjudication.

The case was argued by Key and Jones, for the plaintiffs; and by Coxe, for the defendant.

The counsel for the plaintiffs contended, that the single question in the case was, whether the circuit court of Louisiana had chancery jurisdiction. The argument that the case is not one for chancery jurisdiction, does not apply. The question whether the case of the complainants is, or is not, one of chancery cognisance, is not before the court on the certificate of division. No provision of the code of Louisiana gives chancery jurisdiction to the courts of that state. Chancery law, as administered in the courts of the United States, is a fixed code of laws; and depends on established rules and decided cases. The courts of equity are of a peculiar form. The code of Louisiana gives a judge, in certain cases, a right to proceed according to the principles of natural justice; but this gives no chancery powers.

The contended, that the case exhibited in the complainants' bill, was one peculiarly of chancery jurisdiction. It is a beneficial bill, and should have the protection of the court. Cited, Bro. P. C. 550; Dick. 26; 2 Ves. & B. 259. But the chancery jurisdiction of the circuit court has been fully recognised in case of Livingston v. Story, 9 Pet. 655; 12 Ibid. 474; 13 Ibid. 368, 404. The rules of court regulating the practice of the circuit court show that the call for papers as made by the defendant, is not allowed. 10th Rule of Court; 3 Dall. 335, 339. The rules of practice in the civil code of Louisiana, do not sanction such a call for papers.

Coxe argued, that the case exhibited in the bill was not one of chancery jurisdiction; nor was a proceeding to vacate a will, in the power of a chancery court. Cases cited, 13 Pet. 369; 9 Ibid. 657; 12 Wheat. 169, 175; 1 Williams on Executors 157; Coop. Eq. Plead. 268; 2 Story's Equity 670. Coxe referred to the Louisiana code, to show that the probate court was the proper tribunal to set aside the will. So, too, the code authorizes proceedings in the established courts of Louisiana to recover legacies. It was not his intention to controvert the decisions of the court; but such a case as this had not yet been decided.

THOMPSON, Justice, delivered the opinion of the court.

This case comes up from the circuit court of the United States for the eastern district of Louisiana, upon a certificate of division of opinion upon the following points: 1. Does chancery practice prevail, and should it be extended to litigants in this court, and in this cause? 2. Should or not the said order of the 9th of March 1837, be annulled and vacated? 3. Should or not the cause be placed upon a rule-docket, and the complainants be permitted to proceed according to the chancery practice; and the defendants be required to answer, without oyer of the documents prayed for, or a service of the bill in French, as prayed for?

This was a bill filed in the district court of the United States, for that district, on the 28th of July 1836, according to the course of practice in the courts of the United States, upon the equity side of the court; and in the course of proceeding, the district judge, on the 9th of March 1837, entered the following order: 'W. W. Whitney and wife v. Richard Relf and others. In this case, having maturely considered the prayer for oyer, and for copies of bill in French, the court this day delivered its written opinion thereon, whereby it is ordered, adjudged and decreed, that the application for oyer of documents, and for copies of the bill of complaint, in the manner prayed for (in French), be granted; and further, that all future proceedings in this case shall be in conformity with the existing practice of this court.' At the June term of the circuit court, in the year 1839, a motion was made to ...


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