Campbell v. Pratt.

[*430

tribution of the whole amount due to Law, between that class of lots, still held by the mortgagor, and that which had passed into the hands *of the present appellants. This class was again subject to another discrimination, inasmuch as thirteen of the thirty-two purchased by the appellant, were subject to a second mortgage, executed by Morris, Nicholson and Greenleaf, to one Duncanson, and the equitable interest in which was adjudged to the assignee of Greenleaf. The sum which thirty-two lots were decreed to contribute to the payment of Law, was to be determined by the ratio which these lots bore to the whole of the mortgaged premises.

It is now contended, that another distribution of the sum thus charged, is to be made between the lots thus mortgaged to Duncanson, and the remaining lots of this class. And it is ascertained, that the consequence will be, putting a considerable sum in the pocket of this appellant, to the prejudice of Duncanson's mortgage, as the sale of those thirteen lots falls considerably short of satisfying the sum decreed on that mortgage. That is, that these thirteen lots shall be charged ratably with the sum charged upon the whole class, so as to contribute to relieve the remaining lots, and by thus contributing to the satisfaction of Law's mortgage, leave the larger sum from the sale of the remaining lots to be paid over to this appellant. This, it is contended, is both conformable to the decree, and to general principles.

If conformable to the decree, it is in vain to refer to general principles. But we think, the purport of the decree is obviously otherwise. Campbell, claiming as purchaser at sheriffs' sales, under an attachment of the [*431 interest of the mortgagors, filed his bill for a redemption of the whole of this class of lots, and the court decreed, that he be permitted to redeem, on payment, first, of the ratio of Law's mortgage, charged on this class, secondly, on payment of two-thirds of the amount of principal and interest of the debt due to Duncanson. And as the opposite claimants had filed their bill for a foreclosure, a sale is ordered of the whole of this class of lots, to raise the money, to be applied in the same manner, if Campbell should fail, in six months, to redeem. The application of the amount of sales must then be regulated by the right of redemption, as decreed to Campbell; and that is, that he pay, first, the contribution to Law, secondly, the amount due to Duncanson, upon which conditions only he could hold the lots discharged of the mortgages, and consequently, after those payments only, could he receive the balance of the money, the representative of his remaining interest in the land.

And this exposition of the decree is perfectly consonant with general principles. All the doubt in the case has been raised by the effort to exhibit this appellant as the holder of an independent interest, that is, as a third incumbrancer. But this is by no means his relative character; he is nothing more than the legal representative of the interests of Morris, Nicholson and Greenleaf, in the lots attached, and sold to him. The attachment was levied upon the equity of redemption existing in those mortgagors; [*432 *and the decision of this court, in supporting his right, was placed upon the decision of the courts of Maryland (in which the land then lay), which maintained the validity of an attachment levied upon an equity of redemption. He was, then, nothing more than the assignee of an equity of redemption, and could claim no greater equity, as against either Duncanson

United States v. Lancaster.

or Law. That he was not to be considered as a subsequent incumbrancer, is conclusively determined by this consideration, that there would then have been no equity of redemption outstanding in any one. In the relation of the assignee of an equity of redemption, he appeared first in this court, and it is obvious from the former decree, that in that light only did this court view him. In this light, he could lay claim to no rights inconsistent with those of the creditor; and, so far as the proceeds of the 13 lots were adequate to satisfying Duncanson, he could be entitled to nothing, until that debt was paid. Any other application of the proceeds of those lots would be preferring the mortgagor to the mortgagee, or the debtor to the creditor; and confer on the assignee of the equity of redemption, a greater equity against the mortgagee, than could have been decreed to the original mortgagor.

That part of the decision of the circuit court, will, therefore, be affirmed. But of the remaining two points, it will be necessary to refer the subject, in order to have the statements and evidence in this record compared, upon which a conclusion must be formed. If this appellant has been charged *433] with a greater amount than his just ratio of the debt due to *Law, he is entitled to relief. But the principles being established, this becomes a mere matter of numerical calculation.

Decree accordingly.

The ATALANTA: FAUSSAT, Claimant.

Prize.

A question of proprietary interest on further proof. Condemnation pronounced. THIS cause was continued at February term 1818 (3 Wheat. 409), for further proof, but the further proof received at the last term being unsatisfactory, it was again continued, on account of some peculiar circumstances in the case, to the present term, when no further proof being produced, condemnation was pronounced.

Decree reversed.

*434

*UNITED STATES V. LANCASTER.

Certificate of division.

The district judge cannot sit, in the circuit court, in a cause brought by writ of error from the district to the circuit court, and the cause cannot, in such a case, be brought from the circuit to this court, upon a certificate of a division of opinion of the judges.

THIS was an action of debt, originally brought in the District Court of Pennsylvania, and carried by writ of error to the Circuit Court, from which it was brought to this court, upon a case agreed by the parties, and a certificate that the opinions of the judges were opposed upon a question arising in the cause.

March 10th, 1820. The cause was argued by C. J. Ingersoll, for the plaintiffs, and by Sergeant, for the defendant.

United States v. Lancaster.

March 17th. MARSHALL, Ch. J., delivered the opinion of the court, that it had no jurisdiction of the cause, as the district judge could not sit in the circuit court, on a writ of error from his own decision, and consequently, there could be no division of opinion to be certified to this court. (a)

*JUDGMENT. This cause came on to be heard, on the transcript of [*435 the record of the circuit court for the district of Pennsylvania, and was argued by counsel: on consideration whereof, it was adjudged and ordered, that the said cause be remanded to the said circuit court, it not appearing from the said transcript that this court has jurisdiction in said cause.

(a) Neither can a cause be brought to this court by writ of error, which has been carried from the district to the circuit court by writ of error. United States v. Barker, 2 Wheat. 395.

199

APPENDIX.

NOTE I.

Speech of the Honorable JOHN MARSHALL, delivered in the House of Representatives of the United States, on the resolutions of the Honorable Edward Livingston, relative to Thomas Nash, alias Jonathan Robins.

Mr. MARSHALL said, believing as he did most seriously, that in a government, constituted like that of the United States, much of the public happiness depended, not only on its being rightly administered, but on the measures of administration being rightly understood; on rescuing public opinion from those numerous prejudices with which so many causes might combine to surround it; he could not but have been highly gratified with the very eloquent, and what was still more valuable, the very able, and very correct argument, which had been delivered by the gentleman from Delaware (Mr. BAYARD) against the resolutions now under consideration. He had not expected that the effect of this argument would have been universal, but he had cherished the hope, and in this he had not been disappointed, that it would be very extensive. He did not flatter himself with being able to shed much new light on the subject; but as the argument in opposition to the resolutions had been assailed, with considerable ability, by gentlemen of great talents, he trusted the house would not think the time misapplied, which would be devoted to the re-establishment of the principles contained in that argument, and to the refutation of those advanced in opposition to it. In endeavoring to do this, he should notice the observations *in support of the resolutions, not in the precise order in which they were made, but as they applied to the different points he deemed it necessary to maintain, in order to demonstrate, that the conduct of the executive of the United States could not justly be charged with the errors imputed to it by the resolutions.

[ *4

His first proposition, he said, was, that the case of Thomas Nash, as stated to the president, was completely within the twenty-seventh article of the treaty of amity, commerce and navigation, entered into between the United States of America and Great Britain. He read the article, and then observed: The casus fæderis of this article occurs, when a person, having committed murder or forgery, within the jurisdiction of one of the contracting parties, and having sought an asylum in the country of the other, is charged with the crime, and his delivery demanded, on such proof of his guilt as, according to the laws of the place where he shall be found, would justify his apprehension and commitment for trial, if the offence had there been committed.

The case stated is, that Thomas Nash, having committed a murder, on board a British frigate, navigating the high seas, under a commission from his Britannic majesty, had sought an asylum within the United States, and on this case, his delivery was demanded by the minister of the king of Great Britain. It is manifest, that the case stated, if supported by proof, is within the letter of the article, provided a murder committed in a British frigate, on the high seas, be committed within the jurisdiction of that nation. That such a murder is within their jurisdiction, has been fully shown by