The Sabine

Woods, Circuit Justice. It is insisted by counsel for the owners of the Richmond that the decree of the circuit court, as well that part of it which condemned Tuyes and Moulton to pay §2,000 each as that part by which the owners of the Sabine were compelled to pay §8,000 to the same parties, having been ailirmed by the supreme court, and the mandate of that court having been received, this court has no discretion, but must execute the decree in all respects as it has been affirmed. The result of this contention wouJd be that Tuyes and Moulton, who had once compromised and satisfied the decrees against them respectively, would be compelled to pay them again. I do not think the law requires of this court a course of administration which would produce such a result. This court is not, under all circumstances, bound to render a servile obedience to the mandate of the supreme court. It is bound to exercise a judicial discretion in the interpretation and execution of the mandate. In the case of Story v. Livingston, 13 Pet. 373, the supreme court said, in reference to its mandate, that “ it is to be interpreted according to the subject-matter to which it has been applied, and not in a manner to do injustice.” In Ex parte Morris, 9 Wall. 605, the supreme court, having reversed a decree rendered against Morris and Johnson by the district court, by its mandate directed the marshal to make restitution to them of whatever they had been compelled to pay under that decree. Pending the appeal, the whole amount of the decree had been collected from them by execution. A. part of the money so collected had been distributed by order of the court. The residue the marshal had, by order of the interior department, deposited in a national bank, which had failed since the deposit had been made. These facts were held by the supreme court to exonerate the marshal, and excuse him from obedience to the mandate of the court. See, also, Supervisors v. Kennicott, 94 U. S. 498. When the appeal taken docs not supersede the decree, and such was the appeal taken in this case, the appellee, notwithstanding the appeal, may take out execution, and enforce the payment of the decree. It has never been supposed that money so collected could, after the affirmance of the decree, he again collected. A voluntary payment stands on the same footing, it is not the practice of the supreme court, in affirming or reversing a decree, to take notice of payments or adjustments subsequent to the decree of the court below. These matters belong to the circuit court to consider after it shall have received the mandate of the supremo court. Thus in The Kalorama, 10 Wall. 204, it was said by Mr. Justice Cliwoed: “Payments have been made by the respondents since the decree was entered in the district court, but the court here is not asked to revise the finding of the district court as to the amount, nor to deduct the payments since made, as those matters will be adjusted under the stipulations executed between the parties. ” So in Canal Co. v. Gordon, 2 Abb. (U. S.) 479, it was said by Mr. Justice Field: “Obedience to the mandate of the supreme court will always be rendered by this court. It will be a prompt and implicit obedience; but we trust it [218] will be, as it should be, an intelligent, and not a blind, obedience. The judgments of that tribunal are founded on the records before it, and these judgments will be unhesitatingly enforced, except as their enforcement may be modified or restrained by events occurring subsequent to the period covered by this record. That such events may modify, and often do modify, the mode and manner of enforcement is well known to all members of the profession. The death of parties, partial satisfaction, changes of interest subject to judgment and sales upon the judgment pending the appeal, are instances where this result is frequently produced.” It follows from these authorities, if it, indeed, needed any authoritjr to support so obvious a proposition, that payments or compromises made in his own behalf by a party to a decree •after its rendition in the court below are to be noticed and enforced by the inferior court after the af-firmance of the decree by the supreme court and the return of its mandate. It is conceded, however, by counsel for the execution creditors that Tuyes and Moulton are entitled to be credited on the execution with the amounts paid by them in compromise of the decrees rendered against them, but it is insisted that they are entitled to no more. This concession, it seems to me, yields the whole case. Tuyes and Moulton insist that the decrees against them have been discharged by accord and satisfaction. The accord and satisfaction is clearly established. It is impossible to hold that they would be entitled to the benefit of full or partial payment, and to deny them the benefit of their accord and satisfaction. Both these methods of satisfying a decree, so far as the question in hand is concerned, stand on precisely the same footing. But it is insisted that the adjustments made with Tuyes and Moulton were compromises, and that the compromises failed; therefore the ap-pellees were remitted to their original rights, and can collect the balance of their decrees not covered by the compromise payments. It is true, the adjustments were compromises, but the compromises have not failed. Those compromises were that the appellees should receive a certain sum in full satisfaction of the decree. This was agreed to by the debtors; the money was paid, and a release executed. So far from the compromises failing, they were fully executed and performed. When these compromises were made it was perfectly well known to the owners of the Richmond that Tuyes and Moulton could not prevent the owners of the Sabine from carrying up the decree by appeal. They never agreed that there should be no appeal. They compromised and satisfied the decrees against themselves. They took no appeal, for they had nothing to appeal from. They were out of the case. It is true that, if the decree of the circuit court had been reversed, the reversal would have extended to the decree against Tuyes and Moulton. But that would have been of no benefit to them. They could not have recovered hack the compromise money voluntarily paid before the appeal in satisfaction of the decree. No reason is perceived why the execution in question should be allowed to proceed against the property of Tuyes and Moulton. They have both satisfied the decrees upon which the execution is issued. The affirmance by the supreme court of the entire decree of the circuit court does not make this any the less a fact. It would not be just to compel another [219] satisfaction by Tuycs and Moulton. As to Tuyos, he is in fact subro-gated to the rights, so far as they have any, of the owners of the Richmond in the decree against himself. If the decree is not satisfied, he is, in effect, its owner, so that the levy of this execution upon his property is an attempt to compel him to pay a decree which he has compromised, and the owners of which have attempted to subrogate him to their rights therein. In short, it is an attempt to enforce by execution payment of a decree which, if it is not already satisfied, is the property of the person from whom its payment is to be exacted. No question is made in reference to the method adopted by Tuyos and Moulton to gain the relief prayed for. The power to control their own process so as to prevent injustice is one which belongs to all courts. McHenry v. Watkins, 12 Ill. 233; Russell v. Hugunin, 1 Scam. 562; Adams v. Smallwood, 8 Jones, (N. C.) 258; Barnes v. Robinson, 4 Yerg. 186; Azcarati v. Fitzsimmons, 3 Wash. C. C. 134; Davis v. Shapley, 1 Barn. & Adol. 54; Humphreys v. Knight, 6 Bing. 572. The exercise of this power is invoked by their motions, and there seems to be no good reason why the relief asked for should not be granted. The motions are allowed.