38 U.S. 404 (1839), Ex Parte Whitney

Citation:38 U.S. 404, 10 L.Ed. 221
Case Date:March 09, 1839
Court:United States Supreme Court

Page 404

38 U.S. 404 (1839)

10 L.Ed. 221


United States Supreme Court.

March 09, 1839


MR. JONES presented a petition, and moved the Court for a mandamus in the nature of a writ of procedeno, to be directed to the Circuit Court of the United States, for the eastern district of Louisiana.

Mr. Jones, for petitioner, stated, that William W. Whitney, and Myra Clarke Whitney, had filed a bill in the District Court of the United States for the eastern district of Louisiana, which was afterwards transferred to the Circuit Court. The complainant, William W. Whitney, having died pendente lite, the suit was continued in the name of his widow, Myra Clarke Whitney.

The subpoena issued on the bill was served on a number of defendants, and among them on Relf and Chew. The object of the bill is to recover property devised to the complainant by a will of Daniel Clarke, in which the complainant, his only child, and heir at law, was his general legatee; and Relf and Chew are charged in and having set up a prior and revoked will, in which they are and having set up a prior and revoked will, in which they are named executors, with plenary powers of disposal and sale over the real estate of the testator; and they had disposed of the immense estate, under colour of their office and authority, as executors and testamentary legatees; whilst the complainant for a time, an infant of tender years, was in ignorance of her parentage and true name, and of his rights. The other defendants are charged with combining with Chew and Relf; and with having purchased, and withholding parts of the estate of Daniel Clarke, under sale by Chew and Relf.

The bill he stated set out a case for the relief of a Court of

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equity, seeking special and general relief, according to the principles and course of procedure of a Court of equity. A copy of the bill for each and every of the defendants, about fifty in number, was served with the subpoenas.

On the 20th February, 1837, (about two months after the subpoenas were returned, served,) the two executors, with twenty-five of their co-defendants, appeared by their respective solicitors, and filed a petition; wherein, stiling 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. The, 'all the aforesaid respondent (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 honourable Court, to said complainants, be filed herein, and served on these respondents, that they may be enabled to take proper cognizance thereof.' The respondents, more especially, crave oyer of twenty-three of these instruments enumerated and specified in a list; referring to the several clauses of the bill where they are respectively mentioned.

The late Judge Harper, formerly judge of the District Court of the United States for the eastern district of Louisiana, 'decreed that the application of the defendants for oyer of the documents and for copies of the bill in the manner prayed for, be granted;' and he ordered, 'that all the future proceedings in the case shall be in conformity with the existing practice of the District Court.'

The petitioner, by Mr. Jones, her counsel, stated that the order so granting the prayers of the petition, in extenso, has ever since stood a bar against the entrance of the complainant beyond the threshold of justice; the regular progress of the cause to issue has been arrested, and a hearing indefinitely delayed; unless the precedent condition, thus arbitrarily and illegally...

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