Livingston v. Dorgenois,
11 U.S. 577 (1813)

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U.S. Supreme Court

Livingston v. Dorgenois, 11 U.S. 577 (1813)

Livingston v. Dorgenois

11 U.S. 577




A writ of error does not lie to an order of the court below to stay the proceedings finally upon the suggestion of the attorney for the United States, in a case to which the United States are not parties, but the court will award a mandamus nisi in the nature of a procedendo.

This was a writ of error to the District Court of the United States for the District of Orleans in a suit brought in that court by Edward Livingston against F. I. Le Breton Dorgenois, Marshal of the Territory of Orleans, according to the forms of the civil law as established in that territory.

The petition of E. Livingston stated that one John Gravier, on 30 April, 1803, was an inhabitant of the Province of Louisiana; that he was the owner and possessor of a plantation or parcel of land adjoining, and next above the City of New Orleans, and bounded in front on the River Mississippi, which had been uninterruptedly owned and possessed by himself and those under whom he claimed for upwards of eighty years. That the said plantation or parcel of land had then, to-wit, on the 30 April and long before, been greatly increased by the alluvion of the said river, which had always, from the several periods of its increase, been considered, possessed, and lawfully held, as parcel of the said tract of land, by the said Gravier and those under whom he held.

That the mayor, aldermen, and inhabitants of the City of New Orleans having, under some pretense of title to the said alluvion or to a servitude therein, committed divers trespasses on the said land, the said John Gravier filed his petition in the Superior Court of the Territory of Orleans, being a court of competent jurisdiction, and from whose judgment there is no appeal, praying for an injunction against the said trespasses, and that he might be quieted in the possession of the said land. And that such proceedings were had in the said court on the said petition that it was finally adjudged and decreed that the said John Gravier should be quieted in his lawful enjoyment of the said alluvion and that an injunction, before granted, should be made perpetual, which judgment was carried into execution. After which the petitioner (Livingston) took possession,

Page 11 U. S. 578

under Gravier, of the property in question, which he held as the legal owner in fee by virtue of sundry conveyances from Gravier and others who legally held under him, and that the possession of Gravier, in which he was quieted by the said decree, was legally and uninterruptedly transmitted to the petitioner, Livingston, and that he held the same until 25 January, 1808, when he was forcibly dispossessed by the defendant, the Marshal of the District of Orleans, who still retains the possession thereof, contrary to law.

The petitioner then prays that in the first instance, without prejudice to his further claims, he may be restored to the possession of which he has been illegally deprived, and may have such further and other relief as the nature of his case may require.

To this petition the defendant answered and pleaded in bar that before and on 25 January, 1808, he was Marshal of the District of Orleans, and in his official capacity received from the President of the United States an instruction or mandate to remove from the lands in question all such persons as should be found thereon and who should have taken possession thereof or settled thereon since 3 March, 1807, which instruction or mandate was communicated to the defendant officially by the direction of the President of the United States, in a letter written by James Madison, then Secretary of State, which letter is in the words and figures following, viz.:

"Department of State, Nov. 30, 1807"


In pursuance of the provisions of the act of Congress "to prevent settlements on lands ceded to the United States until authorized by law," I am directed by the President to instruct you to remove immediately from the land known and called by the name of the Batture in front of the suburb St. Mary of the City of New Orleans, which was ceded to the United States by the treaty with France, and the settlement of which has not been authorized by any law of the United States, all persons who shall be found on the same, and who shall have taken possession or settled thereon

Page 11 U. S. 579

since 3 March in the year 1807. Should any aid be necessary, you will call for the assistance of the good citizens of the district as the posse comitatus or civil power of the territory.

"I have the honor to be,"

"Very respectfully, sir,"

"Your obedient servant,"


"Francis Joseph Le Breton Dorgenois, Esq."

"Marshal of the Orleans territory."

And that the defendant did accordingly, on the said 25th day of January, as marshal as aforesaid, and in obedience to the said instruction or mandate of the President, remove the plaintiff and his servants from the lands aforesaid, the same having been taken possession of by the plaintiff since 3 March, 1807, which said removal is the same, which the plaintiff has set forth in his petition, and this he is ready to verify, &c.

To this plea there was a general demurrer and joinder, but upon the day assigned for the argument,

"Tully Robinson Esq. attorney for the United States, moved the court that the proceedings be stayed upon a suggestion that the suit is fictitious and collusive; that the defendant is entirely uninterested in the cause, not having (though impliedly admitting by the pleadings that he has) any right of property or possession in the tract or parcel of land called the Batture, but that the said suit is carried on for the sole purpose of affecting the interest of a third party, to-wit, of the United States, and of obtaining the possession from them."

Whereupon sundry documents were filed in support of the suggestion and against it, and the plaintiff offered to consent that the United States should intervene in the cause, but the counsel with the attorney for the United States replied that the offer could not be accepted, because the United States could not be made defendants in any case. The motion of the attorney for the United States was thereupon

Page 11 U. S. 590

argued, and the court having taken time to consider, and having also granted a rehearing, ultimately decreed that the proceedings should be "finally stayed," whereupon the plaintiff sued out his writ of error to the Supreme Court of the United States.

The counsel for the Appellant dismissed his writ of error, and prayed a mandamus nisi to the judge of the District Court of Orleans in the nature of a procedendo, which was granted.

Mandamus nisi awarded.

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