John Marshall

“ The second objection to the execution of the power is, that it was given to Eckford, who is dead, and the agent of the plaintiffs derives no power from him-Adams the principal has lost his standing in judgment, by his insolvency, and no one could act as his agent. An agent, Mr Barker, who claims to be the agent of Adams, can exercise no powers which his principal could not exercise. By the decisions of the courts of Louisiana a party cannot send a confession of a judgment into court and have it entered. ”

“ The judgment rendered by Judge Robertson will be considered as signed, if it ought to have been signed.
When a plaintiff, in an execution, has a clear right to proceed against a specific thing, he may insist on the sale of it, under an execution, without giving an indemnity. ”

“ Judge Harper has shown for cause against an execution for the whole debt, on the judgment entered by Judge Robertson on the 18th day of May 1826, that the whole debt was not then due; and that the judgment in its terms, comprehends that portion of the debt only which was actually due. He shows for cause against any execution founded on the paper delivered by Josiah Barker, on the 10th day of March 1834, that Josiah Barker exhibited no power of attorney from Christopher Adams, and showed no right to personate him. ”

“ If the cause shown against a mandamus to issue such a writ of execution as is asked, or the judgment in its present state be deemed sufficient, then the petitioners ask for a mandamus commanding the judge to amend such judgment ”

“ Supposing the judgment could not be amended or extended, did the representative of the petitioners, Mr Barker, present himself before the district court, with powers authorising him to act. The power to confess judgment could not be conferred by any warrant on the corporation. A corporation exists by its law of creation, and there is no authority in such a body to appoint an attorney in fact. In this case Adams gave a power to Mr Eckford, not to the corporation ”

“ If, by the laws referred to, the property of insolvents cannot be placed in the hands of the syndics, for administration, and this without affecting the prior liens of a creditor; no laws for the transfer of the property of creditors can be effectual. The proceedings in the district court of New Orleans show that Mr Barker, representing the petitioners, endeavoured to obtain the appointment of syndics ”

“ No confession of judgment has been entered, nor has any judgment been rendered on any one of the said notes. When the judgment of the 18th of May 1826 was signed, Josiah Barker, agent for the plaintiffs, offered to confess judgment in the name and on behalf of Christopher Adams for the residue of the notes. The court refused to receive this confession for the following reasons. The plaintiffs, instead of causing judgment to be confessed, in conformity with the stipulation contained in the transaction, appear to have abandoned their original suit. ”

“ To apply a different, or a higher rate of justice in the case of a non resident, would not be permitted. If the law regulating the proceedings of syndics in insolvent cases has established rights binding on the citizens of Louisiana; that law must be applied to citizens of other states, unless it shall interfere with some provision in the constitution of the United States. ”

“ On these authorities the petitioners were, without notice to the mortgagor, entitled to execution on the mortgage; by simply making oath that the debt is due, in whose ever hands the property mortgaged may be. Code of Practice 61 to 64.
If therefore an application had been made by the insurance company to the district judge for an execution, or writ of seizure and sale, it must have been given; and if he had not granted it, this court would have compelled him by a mandamus. In 1826 such an application was made to Judge Robertson, and was granted by him. ”

“ The syndics act to prevent a scramble among the creditors for the effects of the debtor, and to take the property of the insolvent out of their hands. They take the property, make a tableau of distribution, regarding the lien creditors according to their respective situations, giving each his particular rights in the distribution; and an equal distribution is made of the residue, only, among creditors of equal condition. No matter what the lien or preference may be, it is upheld and respected in this distribution. ”

“ The entering into this transaction was not an abandonment of the rights of the petitioners, it was no more than a suspension of their exercise, and the lien of the judgment and execution was not removed, but proceedings under it were postponed for the period stated in the transaction. When a creditor takes a judgment in addition to his prior security, the security is not avoided. ”

“ Counsel have given more precision to the general application of the petitioners, by presenting five separate and alternative prayers for a mandamus commanding a particular thing; each application founded on the rejection of that which precedes it.
The first is for such an execution as that which was issued on the 12th of March 1834, at the instance of the plaintiffs, being an execution for the amount of all the notes secured by the mortgage and transaction in the petition mentioned ”

“ It was considered as securing an impartial administration of justice; and the confidence which such a provision would necessarily produce, was one of the means by which the permanency of the government would be established. ”

“ It is within the principles established by the court at the last term in the Life Insurance Company v. The Heirs of Nicholas Wilson, 8 Peters 291. Upon this part of the case no doubt is therefore entertained of the success of the application. ”