suant to those views the Circuit Court, as the return shows, did thereupon direct that the decree of the District Court be reversed, and that the libel of the petitioners be dismissed.

Power to issue writs of mandamus to any courts appointed under the authority of the United States was given to this court by the thirteenth section of the Judiciary Act, in cases warranted by the principles and usages of law.* When passed, the section also empowered the court to issue such writs, subject to the same conditions, to persons holding office under the United States, but this court, very early, decided that the latter provision was unconstitutional and void, as it assumed to enlarge the original jurisdiction of the court, which is defined by the Constitution.1

Applications for a mandamus to a subordinate court are warranted by the principles and usages of law in cases where the subordinate court, having jurisdiction of a case, refuses to hear and decide the controversy, or where such a court, having heard the cause, refuses to render judgment or enter a decree in the case, but the principles and usages of law do not warrant the use of the writ to reexamine a judgment or decree of a subordinate court in any case, nor will the writ be issued to direct what judgment or decree such a court shall render in any pending case, nor will the writ be issued in any case if the party aggrieved may have a remedy by writ of error or appeal, as the only office of the writ when issued to a subordinate court is to direct the performance of a ministerial act or to command the court to act in a case where the court has jurisdiction and refuses to act, but the supervisory court will never prescribe what the decision of the subordinate court shall be, nor will the supervisory court interfere in any way to control the judgment or discretion of the subordinate court in disposing of the controversy. Where a rule. is laid, as in this case, on the judge of a subordinate court, he is ordered to show cause why the peremptory writ of mandamus shall not issue to him, commanding him to do some act which it is alleged he has power to do, and which it is his duty to do, and which he has improperly neglected and refused

*1 Stat. at Large, 81.

1Marbury v. Madison, 1 Cranch, 175; Ex parte Hoyt, 18 Peters, 290.

2Insurance Co. v. Wilson, 8 Peters, 302; United States v. Peters, 5 Church, 135; Ex parte Bradstreet, 7 Peters. 648; Ex parte Many, 14 Howard, 24; United States v. Lawrence, 3 Dallas, 42: Commissioner v. Whitely, 4 Wallace, 522; Insurance Co. v. Adams, 9 Peters, 602.

to do, as required by law. Due service of the rule being made the judge is required to make return to the charge contained in the rule, which he may do by denying the matters charged or by setting up new matter as an answer to the accusations of the relator, or he may elect to submit a motion to quash the rule or to demur to the accusative allegations. Matters charged in the rule and denied by the respondent must be proved by the relator, and matters alleged in avoidance of the charge made, if denied by the relator, must be proved by the respondent. Motions to quash in such cases are addressed to the discretion of the court, but if the respondent demurs to the rule, or if the relator demurs to the return the party demurring admits everything m the rule or the return, as the case may be, which is well pleaded, and if the relator elects to proceed to hearing on the return, without pleading to the same in any way, the matters alleged in the return must be taken to be true to the same extent as if the relator had demurred to the return. Subordinate judicial tribunals, when the writ is addressed to them, are usually required to exercise some judicial function which it is alleged they have improperly neglected or refused to exercise. or to render judgment in some case when otherwise there would be a failure of justice from a delay or refusal to act, and the return must either deny the facts stated in the rule or alternative writ on which the claim of the relator is founded, or must state other facts sufficient in law to defeat the claim of the relator, and no doubt is entertained that both of those defences may be set up in the same return, as in the case before the court Several defences may be set up in the same return, and if any one of them be sufficient the return will be upheld Fysdently the District judge was inclined to adopt the proposition, acano! by the be"ants, that the suit for wages, as it was prosecuted was not within the treaty stipulation, nor a contro

& Ames e Corporations, 9th ed. See 727; Cagger v. Supervisors, 2 XS X

umas 34*, Moses on Mandamus 210: Tom. Benk v ComCoos 7 4Mott's Practice, N. S. 230; New York Sts. Nāžistory Commissioners. 236: & Race's Abridg

versy within the jurisdiction of the consul, but he did not place his decision upon that ground. He did, however, rule that the treaty did not have the effect to change the jurisdiction of the courts, except to require them to decline to hear matters in difference between the masters and crews of vessels in all cases where the consul had acted or perhaps was ready to act as judge or arbitrator in respect to such differences. Beyond doubt he assumed that to be the true construction of the treaty, and having settled that matter he proceeded to inquire whether the consul had adjudicated the pending controversy, or whether the evidence showed that he was ready to do so, and having answered those inquiries in the negative he then proceeded to examine the pleadings and proofs, and came to the conclusion in the case which is expressed in the decree from which the appeal was taken to the Circuit Court.

All of those matters were again fully argued in the Circuit Court, and the Circuit judge decided to reverse the decree of the District Court upon the following grounds: (1.) That the Prussian consul, under the treaty, had jurisdiction of the subject-matter involved in the suit in the District Court. (2.) That the jurisdiction of the consul under the treaty was exclusive. (3.) That the proofs showed that the consul heard and adjudicated the matter involved in the suit appealed to the Circuit Court, and that the libellants were bound by that adjudication.

Such questions were undoubtedly raised in the pleadings, and it is equally certain that they were decided by the District Court in favor of the libellants. Raised as they were by the pleadings, it can not be successfully denied that the same questions were also presented in the Circuit Court, and in view of the return it must be conceded that they were decided in the latter court in favor of the respondent. Support to that proposition is also found in the opinion of the Circuit judge, and in the order which he made in the case. Suffice it, however, to say, it so appears in the return before the court, and this court is of the opinion that the return, in the existing state of the proceedings, is conclusive.

Confessedly the petitioners are without remedy by appeal or writ of error, as the sum or value in controversy is less than the amount required to give that right, and it is insisted that they ought on that account to have the remedy sought by their petition. Mandamus will not lie, it is true, where the party may have an appeal or writ of error.

but it is equally true that it will not lie in many other cases where Le party is without remedy by appeal or writ of error. Such remedies are not given save in patent and revenue cases, except when the sum or value exceeds two thousand dollars, but the writ of mandamus will a be in any case to a subordinate court unless it appears that the court of which complaint is made refused to act in respect to a matter w the jurisdiction of the court and where it is the duty of the urt to act in the premises.

Admiralty courts, it is said, will not take jurisdiction in such a case except where it is manifestly necessary to do so to prevent a failure

justace, but the better opinion is that, independent of treaty stipulato. there is no constitutional or legal impediment to the exercise f pornstrction in such a case. Such courts may, if they see fit, take stiction in such a case, but they will not do so as a general rule »,"hout the consent of the representative of the country to which the Vessel belongs, where it is practicable that the representative should be www.sulted. His consent, however, is not a condition of jurisdiction, but

garded as a material fact to aid the court in determining the estion of discretion, whether jurisdiction in the case ought or ought for to be exercised.*

Superior tribunals may by mandamus command an inferior court to perform a legal duty where there is no other remedy, and the rule 4ppies to judicial as well as to ministerial acts, but it does not apply at all to a judicial act to correct an error, as where the act has been erroneously performed. If the duty is unperformed and it be judicial in it: character the mandate will be to the judge directing him to se his judicial discretion or judgment, without any direction

1. the manner in which it shall be done, or if it be ministerial, the

mandamus will direct the specific act to be performed.1

Her is given to this court by the Judiciary Act, under a writ of apeal, to affirm or reverse the judgment or decree of the it and in certain cases to render such judgment or decree a. the C.. all Court should have rendered or passed, but no such power 14 writ of mandamus, nor is it competent for the superior 1ch a writ, to reexamine the judgment or decree

Shipping, 224: Lynch v. Crowder, 2 Law Reporter. N. S. 355: v... Ren, 217: The Bee, Ware, 332: The Infanta. Abbott's Ad21 Pickering, 258; Angell & Ames on Corporations,

of the subordinate court. Such a writ can not perform the functions of an appeal or writ of error, as the superior court will not, in any case, direct the judge of the subordinate court what judgment or decree to enter in the case, as the writ does not vest in the superior court any power to give any such direction or to interfere in any manner with the judicial discretion and judgment of the subordinate court.1 Viewed in the light of the return, the court is of the opinion that the rule must be discharged and the

Petition denied.

Case No. 4,426

THE ELWINE KREPLIN2

[9 Blatchf. 438]3

Circuit Court, E. D. New York. Feb. 23, 1872.1

CONSTITUTIONAL LAW-EFFECT OF EXPRESS PROVISIONS OF FOREIGN TREATY UPON JURISDICTION OF LOCAL COURTS

Article 10 of the treaty between the United States and the king of Prussia, of May 1, 1828 (8 Stat. 378, 382), provides, that the consuls, vice-consuls and commercial agents of each party "shall have the right, as such, to sit as judges and arbitrators, in such differences as may arise between the captains and crews of the vessels belong to the nation whose interests are committed to their charge, without the interference of the local authorities," subject to the right of the contending parties "to resort, on their return, to the judicial authority of their country," and to the right of the consuls, vice-consuls or commercial agents to require the assistance of the local authorities, "to cause their decisions to be carried into effect or supported." The crew of a Prussian vessel sued her in rem, in admiralty, in the district court, to recover wages alleged to be due to them. The master of the vessel answered, denying the debt, invoking the protection of said treaty, denying the jurisdiction of the court, and averring that the claim for wages had already been adjudicated by the Prussian consul at New York. The consul also protested formally to the

1Ex parte Crane, 5 Peters, 194; Ex parte Bradstreet, 7 Id. 634; Insurance Co. v. Wilson, 8 Id. 304; Ex parte Many, 14 Howard, 25.

28 Federal Cases, 588.

3[Reported by Hon. Samuel Blachford, District Judge, and here reprinted by permission.]

[Reversing The Elwine Kreplin, Case No. 4,427.]