EX PARTE, IN THE MATTER OF DUNCAN N. HENNEN

Mr. Chief Justice Tañey delivered the following opinion, on the motion of Mr. Gilpin :

At the August term of the Supreme Court, held by the Chief Justice or Judge for the fourth circuit, according to the act of Congress of 1802, a motion was made for a rule on the judge of the District Court of the United States, for the eastern district of Louisiana, to 'show cause why a mandamus should not issue, commanding the said judge to restore Duncan. N. Hennen to the office of clerk of the said District-Court.

It appeared from the depositions and other evidence laid before the Court at that term, that Duncan N. Hennen, the relator, who had been for several years clerk of the District Court, had been recently removed from office by the district judge, and John Winthrop appointed in his place; and a letter from the judge to the relator was produced, stating that the removal had not been made on account of any misconduct on his part, but merely from the desire of the judge to make provision for Winthrop, who was his personal friend, and well qualified for the office. It also appeared, that at the meeting of the Circuit Court, which took place shortly afterwards, the presiding judge of the Circuit Court was of opinion that the removal was not authorized by law, and that Hennen was still the clerk of the District Court, and consequently, by virtue of the acts of Congress, was also the clerk of the Circuit Court; that the district judge, however, adhered to his opinion, that Winthorp was lawfully appointed by him, and the Court being thus divided, neither of the claimants could be recognised, as clerk; and that the whole business of the Circuit Court was therefore continued over, and that no process could now issue from the Court until this controversy should be settled.

Upon this evidence, the rule to show cause was granted, return able to the Supreme Court, on Saturday, the'26th of January, with leave to the district judge to move to discharge the rule, even before the return day above mentioned.

A motion was now made to discharge the rule, upon the ground that the judge of the Fourth Circuit, sitting alone, at the August term, had. not the power to lay the rule. The Court stopped the counsel in support of the motion, and the Chief Justice said: — The Court do not desire an. argument on the subject. When I granted the rule, 1 stated that I strongly inclined to the opinion that. I had no power to lay such a rule, in any case, at the August Term; and it is. due to the counsel for the relator to say, that he acknowledged his own doubts when he brought the subject before the Court. But as the question was an important one, and might again occur; I thought it proper that it should be settled by the-judgment of the Court at its regular session, and not by a single judge. I therefore laid the rulé, because it was the only mode in which Í could bring the subject before the Court for decision. We have conferred together since we assembled for the present session, and we are unanimously of opinion that süch a rule cannot be laid at the August term; that the act of 1802, ch. 31. (2 Story’s Laws U. S. page 854,) gives the power to the judge of the Fourjh Circuit, át that term, “ to make all necessary orders touching any suit, action, appeal, writ of error, process, pleadings, or proceedings, returned to the said Court, or depending therein;” but that a riile to show cause why a mandamus should not issue, does not fall within the description of cases enumerated in the act of Congress: and that the judge of. the Fourth Circuit, when sitting at. the August term, has not, therefore, the power to grant such a rule in any case.

The rule to show cause must therefore be discharged.