Ex Parte Story

THE case of Louise Livingston, executrix of Edward Livingston, deceased, was before this Court at the January term, 1837, on the appeal of Mrs. Livingston, as administratrix, against Benjamin Story, from the district court of the United States for the eastern district of Louisiana. 11 Peters, 351.

The decree of the district court of Louisiana was reversed, and the case was sent back to that court on a special mandate from this Court.

Mr. Crittenden, for Benjamin Story, now presented to this Court a petition, on behalf of Mr. Story, stating:--

That there is pending against him, in the court of the United States of the ninth circuit and eastern district of the state of Louisiana, a certain suit in chancery, in the name of Louise Livingston, which suit was originally instituted in the name of Edward Livingston.

'That during the present term of the court, your petitioner moved the court to abate or dismiss said cause upon the grounds that Edward Livingston had departed this life, before the rendition of the decree dismissing this bill. That upon the hearing of said motion, your petitioner introduced a witness for the purpose of proving the time of the death of Edward Livingston, whose evidence was rejected by the court; to which opinion an exception was taken, and a bill of exceptions prepared, which stated truly the facts, a copy of which accompanies this petition.

Upon its presentation, the judge remarked, that he would sign no bill of exceptions unless he was convinced he was bound to sign one. Upon being subsequently importuned upon the subject, he stated, if he signed a bill of exceptions, he must give the reasons at length for his opinion. He has been again and again importuned, and unsuccessfully, on the subject.

That on this day your petitioner's counsel presented to the court the annexed answer, &c., and desired that it might be placed upon the files in the cause. But the court refused permission to file the same. Thereupon the annexed bill of exceptions was tendered to the judge, which bill truly stated the facts; but the judge refused to sign the same, or make it a part of the record.

The court was then moved to direct the clerk of the court to state the facts upon the order book; but the court refused to suffer any notice to be taken of this matter, as a part of the proceedings in the court; stating, at the same time, that he considered a mandamus to be the true remedy; and alleging no other reason for not signing the bill of exceptions, or suffering notice to be taken of the presentation of the answer on the record.

Thus far your petitioner is denied the opportunity of having the said decisions of the court revised, or of having the records of the court to speak the whole truth. Your petitioner annexes a full transcript of the proceedings in said case since it was remanded.

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.