# West v. Brashear (39 U.S. 51)/Opinion of the Court

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* Opinion of the Court
United States Supreme Court
39 U.S. 51
West v. Brashear
This case was formerly before the Court, and was then fully considered and decided, and is reported in 7 Peters, 608. Upon that occasion the decree of the Circuit Court was reversed; and a mandate was issued from this Court, directing the Circuit Court to disallow certain credits which had been given to Walter Brashear, the present appellee, and to allow him a credit equal to the amount of certain ginseng, shipped and sold by James Latimer, after attachments had been laid in his hands, by Francis West the present appellant, and others.
Brashear resided in Kentucky, and Latimer was his consignee and agent in Philadlphia, and had received from him, on consignment, a large quantity of ginseng; and had also made advances for him to a considerable amount, but not equal to the value of the consignment. Francis West was a creditor of Brashear's, and, together with other creditors, laid attachments on his property and credits, in the hands of Latimer; and these were a part of the matters in controversy in the former suit. The mandate of this Court will be found in page 624 of the report above mentioned, and the controversy in this case turns upon the construction of that mandate.
There is no contest here in relation to the items which this Court directed to be disallowed. But a dispute arose in the Circuit Court as to the amount of the sum directed to be credited to Brashear, and some further testimony was taken on that point, in the proceedings under the mandate. It finally appeared, that the value of the ginseng shipped and sold by Latimer, after the attachments were laid in his hands, amounted to five thousand five hundred and ninety-nine dollars and ninety cents; and for this sum Brashear was credited by the decree of the Circuit Court.
The appellants object to this decree, and insist, that although a strict construction of the mandate might justify the credit, yet the mandate must be taken in connection with the opinion pronounced at the same time; and when thus expounded, it will not, as they contend, warrant the decree.
The point of the appellant's objection consists in this: that although the ginseng shipped and sold by Latimer, after the attachments were laid in his hands, amounted to the sum decreed by the Court below, yet that a part of it had before been taken by Latimer at a stipulated price, agreed on between him and Brashear; and that the value of the quantity actually owned by Brashear, and shipped and sold as aforesaid, amounted only to the sum of two thousand seven hundred and fifty-three dollars and eighty cents; and that the residue so shipped and sold was owned by Latimer as above mentioned. And the appellants contend, that it is apparent from the opinion pronounced by this Court, when the case was formerly before them, that the imputed negligence and misconduct which in the judgment of the Court made them liable to Brashear, was confined to the ginseng seized by the attachment, and did not extend to the money due from Latimer for the quantity taken by him as above mentioned, although that money was also subsequently lost by Latimer's insolvency; and they contend, that the credit allowed under the mandate ought to have been two thousand seven hundred and fifty-three dollars and thirty cents, and that the Court erred in allowing more.
There has been some discussion at the bar as to the principles by which a Circuit Court of the United States is to be governed when executing a mandate from the Supreme Court. Undoubtedly the mandate must be its guide. It is the judgment of this Court transmitted to the Circuit Court. And when the direction contained in the mandate is precise and unambiguous, it is the duty of the Circuit Court to carry it into execution, and not to look elsewhere for authority to change its meaning. But when, as in this case, the Circuit Court are referred to testimony to ascertain the amount to be decreed, and are authorized to take new evidence on the point, it may sometimes happen that there will be some uncertainty and ambiguity in the mandate; and in such a case, the Court below have unquestionably the right to resort to the opinion delivered at the time, in order to assist them in expounding it. And if, in this case it had appeared from the opinion delivered, that in speaking of the ginseng shipped and sold by Latimer, the Court intended to confine the credit to the value of that portion of it owned by Brashear at the time of the shipment, and to exclude that alleged to have been taken by Latimer, it would have been the duty of the Circuit Court to execute the mandate in conformity with this intention.
But there is no discrepancy between the mandate, and the opinion pronounced at the time. It is evident that the Court were under the impression that all of the ginseng taken by Latimer to pay his own debt, had been shipped before the attachments were laid. This appears from a paragraph in the opinion of the Court, in page 610 of the reported case. In stating the facts of the case, as in the judgment of the Court they were proved by the testimony, the Chief Justice who delivered the opinion, says: 'Early in the year 1809, he (Latimer) took a large part of the ginseng to himself, as purchaser at six months' credit, which he shipped on his own account to China in March of that year. In the following May he shipped the residue on account of himself and William Redwood.' This latter shipment was made after the attachments were levied, and the Court were manifestly of the opinion that the value of the whole parcel thus shipped was liable in Latimer's hands to the attaching creditors. And believing from the testimony, that it was lost by the negligence and misconduct of these creditors, and the subsequent insolvency of Latimer, they directed Brashear to be credited with the whole amount thus shipped. The intention of the Court, therefore, as gathered from the opinion, is in unison with the direction contained in the mandate; and, in our judgment, the Circuit Court have rightly expounded it. The decree of the Court below is affirmed.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Kentucky, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this Court, that the decree of the said Circuit Court, in this cause be, and the same is hereby, affirmed, with costs.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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